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TMI Blog1931 (8) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... lal as the complainant), was a partner, and the accused and a man named Motiram were also partners. That firm was wound up in July 1928, a settlement was then arrived at and a deed of retirement executed. The firm was to be taken as having been wound up from October 26, 1927, and Motiram retired. The deed of settlement shows that Motiram was indebted to the firm in a sum of Rs. 48,000 odd and the accused was indebted in a sum of Rs. 42,000 odd. For that sum the accused gave a promissory note to the complainant and it is said, and I will assume, that thereby the accused's liability to the firm was discharged. Very shortly prior to this settlement in July 1928, the complainant had written some letters to the accused pointing out that the accused was indebted to the firm and that until that debt was paid off' the accused was not entitled to draw a single pie out of the firm and the accused seems to have acquiesced in that position. Those letters were strongly relied upon by the learned Magistrate as showing that the withdrawals--the subject-matter of the charge, could not possibly have been justified. But it is, I think, a fair criticism that those letters were written prior t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. That is the view which prevailed in a full bench case of the Calcutta High Court as long ago as 1874--the case of Queen v. Okhoy Goomar Shaw (1874) 13 Beng. L.R. 307 and the view was adopted by this Court apparently with approval in Emperor v. Lalloo (1904) 6 Bom. L.R. 553 and in my opinion that is the right view. Then Mr. Thakor says that assuming the section applies, the burden is upon the prosecution to prove a case under it, and one of the essential ingredients which has to be proved is that there was a dishonest intent, and Mr. Thakor says that we cannot uphold this conviction unless the prosecution have proved such a position that a dishonest intent must necessarily be inferred. Well I agree with that, I think that the prosecution must prove facts from which the only possible inference which can reasonably be drawn is that there was a dishonest intent. Here the accused brought no capital to this firm. I ought perhaps to have mentioned in my statement of the relevant facts that when the old firm was wound up in 1929 some of the property was retained by the three former partners jointly and the accused says that that property may be of value. But I think that property mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of charges against partners of criminal breach of trust, I think the Court ought to be very careful, In many cases it is impossible to say what the share of the accused may be, whether he is indebted to the firm or whether the firm is indebted to him, and if the firm is indebted to him there may be no dishonest intent in his withdrawing money from the firm. If there is any doubt upon the matter, I think the accused must always have the benefit of the doubt. To some extent the question is one of degree. If you have a partnership consisting of two partners entitled in equal shares and the assets consist of a particular item of property, say a ship, and you find that the managing partner has sold the ship and put the whole of the sale proceeds into his own pocket, that would be an obvious case from which one would have to infer a dishonest intention because it is plainly robbing the partner of his share of the entire property. On the other hand, if you have a firm with assets valued at a lac of rupees and you find that the managing partner entitled to half the assets has put into his own pocket sums amounting to Rs. 10,000 or Rs. 20,000, I think it would be impossible to infer a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the accused of some Rs. 42,000. The items excluded were, firstly, an item of Rs. 22,000, secondly, an item of anamat amounting to Rs. 18,084, and, thirdly, an unvalued item, i. e., a decree of a civil Court by which the partnership had become entitled to land. 7. After this settlement the accused gave the complainant a promissory note for Rs. 42,000 and his account of the old partnership was squared. The accused and the complainant continued as partners and it has been found by the learned Chief Presidency Magistrate that their shares in the new partnership were eight annas each. The accused had a power-of-attorney and managed the business in Bombay and Bayandar. He did not pay up the amount of the promissory note and was pressed for security but he did not give it. Then a year later, in September, 1929, the accused who had been in the habit of drawing small amounts--never more than Rs. 200 or 300, from the shop presumably for his maintenance and as pocket money, suddenly collected from the constituents and withdrew Rs. 51,000 odd. He entered this withdrawal, debiting the amount against himself in his own hand in the account book and wrote to his capital partner at Hyderaba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to find any evidence on this important point. But later on it was pointed out that one of the prosecution witnesses had been questioned on the matter in cross-examination and that he had stated that he had been through the accounts and had found that there had been a loss of Rs 50,000. That of course may or may not be true but the fact remains that this point which was very important to the prosecution is on the record owing to the kindness of the defence in the lower Court. 12. Now the first and most important point in this case is whether the evidence offered by the complainant in the lower Court was sufficient to satisfy the burden of proof, that is, was the accused to be called on for an explanation or was he entitled to an acquittal even though he had kept his mouth shut and refused to make any statement at all. Mr. Thakor's argument is partly based on the wording of Section 405 and partly on the law of partnership. He practically denies that a partner can be guilty of criminal breach of trust on the ground that it cannot be said that partnership funds of which he has control and which he is entrusted with come within the meaning of Section 405. He has relied on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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