ORDER
Partha Sakha Datta, J.
1. By this application dated 29-1-2007 under Article 227 of the Constitution of India, the order dated 5-1-2007 passed by learned Additional Sessions Judge, Barrackpore in Criminal Revision No. 194 of 2006 affirming thereby the order dated 16-6-2006 passed by learned Judicial Magistrates, 3rd Court, Barrackpore in case No. C-851 of 2003 under Section 420/406 of the IPC whereby the learned Magistrate rejected the prayer of the petitioner under Section 245(1) of the Cr.P.C. is under challenge. The O.P. No. 2 herein as complainant lodged a complaint with the learned CJM, Barasat being case No. C-851 of 2000 alleging that the petitioner-accused proposed to him for a partnership business which he agreed to, as a result of which a partnership agreement was drawn up between them on 5-12-2002 and the petitioner-accused received Rs. 2 lac from the complainant for carrying on partnership business in the name and style of M/s. Banerjee Chemicals Industries Estate. The accused kept the money in his own personal account in Oriental Bank of Commerce. The complainant came to be involved in partnership business for some time but owing to personal difficulties he informed the accused-petitioner through letter dated 28-3-2000, in reply to which the accused expressed his readiness to repay the money by instalments. Apart from the letter in reply dated 30-4-2000 the accused also reiterated his assurance of returning the money through another letter dated 20-5-2000. Money was not repaid despite reminders followed by advocate’s letter dated 30-5-2000. When the complainant confronted the accused on 25-6-2000 the latter refused to make repayment of the money.
2. After examination of P.W. 1 before charge the accused-petitioner filed a petition before the learned Magistrate under Section 245(1) of the Cr.P.C. praying for discharge on the ground that no case was made out against him. The order of rejection by the learned Judicial Magistrate, 3rd Court, Barasat dated 16-6-2006 was affirmed in criminal revision No. 194 of 2006 by the learned Additional Sessions Judge, Barrackpore in his order dated 5-1 -2007 and it is against this order of the learned Judge in the Court below that this revisional application has been preferred on the grounds inter alia that the learned Judge in the Court of revision failed to appreciate that non-compliance with the terms of partnership agreement amounted to civil dispute and no case of criminal breach of trust or of cheating was maintainable. I have heard Mr. M. Goswami, learned advocate for the petitioner and Mr. Swapan Kumar Mallick, learned advocate for the State of West Bengal. The O.P. No. 2 who is the de facto-complainant did not turn up. Affidavit of service shall be kept with the record. The learned Magistrate observed that on perusal of the evidence before charge sufficient materials were available to frame charge under Section 420/406 of the IPC and the learned Additional Sessions Judge reasoned that since the trial Court observed that there were sufficient materials to frame charge against the accused it could not be said that there has been improper use of jurisdiction. The learned Judge succinctly recorded evidence of the complainant before charge and referred to partnership agreement and the correspondences between the parties. The complainant-O.P No. 2 stated in his evidence that he had entrusted Rs. 2 lac to the present petitioner who did not deposit the amount in the bank as per the agreement and thus according to the learned Judge there was no reason to disturb the finding of the learned trial Court.
3. During hearing the point that has been canvassed is whether on the facts pleaded in the petition of complaint which was referred to in the partnership agreement it can be said that the petitioner, a co-partner has misappropriated the property, i.e. a sum of Rs. 2 lac, as allegedly given by the complainant to the petitioner in connection with running of the partnership business. Though normally annexures to the petition of complaint which in the instant case is a partnership agreement should not be looked into in the revisional forum as it is a material banked upon by the defence to be tested only at the trial here is an opportunity to look at the agreement in view of the said agreement having been referred to in the petition of complaint itself and has been admitted in evidence before the learned Magistrate as exhibits and also relied on by the learned Additional Sessions Judge. The agreement for partnership dated 5-2-2002 executed by and between the parties constitutes a partnership business whereby the complainant who is a second party has contributed Rs. 2 lac and the first party who is the present petitioner offered the space of the partnership firm for running the partnership business. In terms of the agreement profit and loss of the firm would be debited or credited in accordance with their respective share to capital and current account. A bank account of the firm was to be opened with a nationalized bank as would be mutually determined by the partners and the partners would Jointly operate the account. There were other terms which all may not be narrated here as they are not necessary. Thus in terms of the petition of complaint as also of the partnership agreement a sum of Rs. 2 lac was invested in the partnership business and the money was supplied by complainant – O.P. No. 2. The allegation in the petition of complaint is that the accused/ petitioner kept the money in his own personal account and as some time after the business had been run the complainant was unable to carry on with the partnership business or be involved in the business any more he asked the accused to return the money but in vain. On behalf of the State it has been submitted that in view of the provision of Section 397(3) of the Cr.P.C. this revisional application which is against the order of the learned Sessions Judge dismissing the revision of the present petitioner is not maintainable. It is further submitted that when the learned Additional Sessions Judge after elaborately considering the matter found the revision before him not maintainable it is not open to the High Court to exercise inherent power under Section 482 of the Cr.P.C. particularly when there was no miscarriage of Justice. Reference in this connection has been made to Kailash Verma v. Punjab State Civil Supplies Corporation and Anr. . A Full Bench decision of Patna High Court in Surendra Singh and Ors. v. State of Bihar and Ors. 1991 CriLJ 3040 has already been referred to. Their Lordships of the High Court observed that where a person has already invoked revisional jurisdiction of the Sessions Judge under Section 397 of the Cr.P.C. and where second revisional application is barred under Section 397(3) of the Cr.P.C. it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India because the power of superintendence is not meant to circumvent the statutory bar and where revision, appeals or applications under Section 482 of the Cr.P.C. are maintainable for setting aside any order of the inferior Courts there is no question of exercise of power under Article 227 of the Constitution although Judicial orders passed by the criminal Courts are amenable to the jurisdiction of the High Court under Article 227 of the Constitution. Accordingly, it is submitted that where the learned Additional Sessions Judge was of the view that no wrong was committed by the learned Magistrate this Court upon an application under Article 227 of the Constitution of India must not interfere with the order impugned and since application before this Court has not been made under Section 482 of the Cr.P.C. the question of exercise of jurisdiction under Article 227 of the Constitution of India does not arise. In reply to the submissions it has been stated by the learned advocate for the petitioner that the nomenclature used in the cause title of the petition is immaterial, the material question being whether there is justification for exercise of inherent jurisdiction of the High Court if substantial question of law not traversed by the learned Judge in the Court below is shown at the threshold. A decision of the Supreme Court in Jitender Kumar Jain v. State of Delhi and Ors. 1999 SCC (Cri) 77 has been referred to by the learned advocate for the petitioner to argue that it was improper for the High Court to dismiss an application under Section 482 of the Cr.P.C. only on the ground that an earlier revisional application before the Sessions Court under Section 397 of the Cr.P.C. was dismissed. It was observed that High Court’s power under Section 482 of the Cr.P.C. and the power of revision under Section 397 of the Cr.P.C. are separate and even though a second revision does not lie before the High Court when one is dismissed by the Court of Session the proceedings of the Court of Session are still open to scrutiny by the High Court in exercise of the power under Section 482 of the Cr.P.C. The decision in Biswanath Mondal v. Shyamapada Mondal 1989 C Cr LR (Cal) 37 : 1989 Cri LJ (NOC) 114 has already been referred to where the Hon’ble Judge observed that where the application is not directed against the order of the Magistrate but is against the order of the Sessions Judge bar of Sub-section (3) of Section 397 of the Cr.P.C. does not operate.
4. Though the present application has been styled as one under Article 227 of the Constitution of India it cannot be argued that the Court is precluded from exercising its inherent power under Section 482 of the Cr.P.C. if it would appear that exercise of such power is necessary either to give effect to any order under the Code or to prevent abuse of the process of the any Court or otherwise to secure the ends of Justice. The guidelines laid down in State of Haryana v. Bhajanlal (1992) Suppl. (1) SCC 335 : 1992 Cri LJ 527 are that quashing of a criminal proceeding is permissible only when the petition of complaint or the FIR fails to disclose any prima facie cognizable offence, or where evidence of legal character is not available or where the complaint or the FIR is ex facie mala fide intended to harass the accused or where taking cognizance of offence is legally barred. The decision in R.B. Kapoor v. State of Punjab AIR 1960 SC 866 can also be referred to here. Therefore, even though the application has been styled as one under Article 227 of the Constitution of India exercise of the power under Section 482 of the Cr.P.C. by this Court having criminal determination is not legally impermissible if exercise of such power does really appear to be necessary consistent with the norms laid down in State of Haryana v. Bhajanlal (supra).
5. The sole point that has been canvassed strenuously is whether a partner can be prosecuted by another partner with the charge of Section 406 of the IPC on the ground that the money invested by one partner was misappropriated by the other partner and it was not being repaid to the copartner investing such money. Herein in the instant case the petition of complaint began with the averment that on 5-12-2002 a partnership agreement was entered into by and between the parties, that in terms of the agreement the O.P. No. 2/complainant invested Rs. 2 lacs, that for sometime the complainant came to be involved in the partnership business and that when subsequently the complainant wanted not to be further associated with the business he asked for return of the money the accused turned a deaf ear and it appeared that the money was deposited in the personal ac-count of the accused partner. My attention has been drawn to five Judge Bench of this Court in Bhuban Mohan Das v. Surendra Mohan Das AIR 1951 Cal 69 wherein a Full Bench of this Court shaped the question “can a charge under Section 406, Penal Code be framed against a person who, according to the complainant, is a partner with him and is accused of the offence in respect of property belonging to both of them as partners?” The answer to the question was ‘No’. It was observed that where a partner receives money or an asset belonging to a partnership or holds moneys or assets of a partnership he does not hold that money in a fiduciary capacity and the only remedy of a co-partner is taking of an account. It was further observed that a partner cannot be prosecuted by another partner for criminal breach of trust in respect of partnership property on two folds grounds i.e. the nature, character and incidence of partnership property are such that during the subsistence of the partnership there cannot be except by such agreement any entrustment or dominion and secondly partnership property is not a specific and ascertainable property and is of so equivocal and problematic in nature that until dissolution and accounts, that it is not susceptible to be used in a manner which can bring into operation under Section 405 of the IPC. In the instant case there is obviously no special agreement between the parties and the money arranged for by the complainant was in terms of the partnership agreement for investment in the partnership business and, therefore, neither of the partners can be said to be having dominion over the property nor can be said to have entrusted the other with the property. This legal point was not advanced before the learned Additional Sessions Judge nor before the learned Magistrate and in the context of this point of law having arisen here it is but fit and proper to exercise the jurisdiction under Section 482 of the Cr.P.C. In view of the decision vis-a-vis the petition of complaint and the partnership agreement as above it has to be held that charge under Section 406 or Section 420 of the IPC is not maintainable.
I allow the revisional application and quash the criminal proceedings. The order of the learned Additional Sessions Judge and that of the learned Magistrate are set aside. The petitioner shall be deemed to have been discharged from bail bonds.
6. Copy of the judgment shall be sent to the learned Judicial Magistrate, 3rd Court, Barrackpore.
Urgent xerox certified copies, if applied for, be supplied to the parties as expeditiously as possible.