[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVN.APPLN.NO.202 OF 2008 Paresh Kothari ..Applicant Vs. State of Maharashtra & Ors. ..Respondents ... Mr.Mahesh Jethmalani counsel with Ms.Sheetal Shah advocate i/b M/s.Mehta and Girdharilal for the Applicant Mr.Ganesh Gole Advocate along with Ms.Rashmi Gagwani Advocate for Respondent no.2 Mr.K.V.Saste APP for the State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE OF RESERVING DATE OF RESERVING DATE OF RESERVING ORDER: SEPTEMBER 18, 2008 ORDER: SEPTEMBER 18, 2008 ORDER: SEPTEMBER 18, 2008 DATE OF PRONOUNCING DATE OF PRONOUNCING DATE OF PRONOUNCING ORDER: DECEMBER 10, 2008 ORDER: DECEMBER 10, 2008 ORDER: DECEMBER 10, 2008 ORAL ORDER: ORAL ORDER: ORAL ORDER: 1. Heard Mr.Mahesh Jethmalani, the learned senior counsel for the applicant-original complainant, Mr.Gole, the learned advocate for the respondent nos.2 to 5 i.e. original accused nos.1 to 4 and the learned A.P.P. for the State. 2. Private complaint came to be filed by the [-2-] applicant against the respondents-accused under Sections 406 and 420 r.w. Section 120-B of IPC before the learned Addl. Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai. The case is numbered as CC.No. 156/Misc./2006. In the said case, process came to be issued under Section 420 of IPC by the learned Magistrate by order dated 14.2.2007. Being aggrieved by the said order, the Respondents-accused preferred revision before the Sessions Court. By order dated 1.2.2008, the learned Sessions Judge allowed the revision and the order of issuance of process under Section 406 of IPC came to be set aside. Being aggrieved by the said order, this revision application has been preferred by the complainant. 3. Brief facts of the case are that: . By the deed of retirement dated 23.4.2005, four partners namely Vijaya Bhalerao, Bindu Vora, Vinodrai Vora, Urmila Doshi retired from the partnership firm of Bonny Enterprises. Thus, the four partners namely Kalpana Kothari, Jaymati Kothari, Kamla Doshi (Respondent no.4) and M.M.Doshi i.e. Respondent no.2 continued as [-3-] partners of the said firm after the deed of retirement on 23.4.2005. 4. Complaint was filed on behalf of two partners of M/s.Bonny Enterprises i.e. Kalpana Kothari and Jayamati Kothari by the applicant who is their power of Attorney holder. It is allegation of the applicant that respondents were expressly entrusted property for development on behalf of M/s. Bonny Enterprises. However, M/s.Bonny Enterprises sold the various premises in the building to various persons by entering into an agreement without consulting and without concurrence of the complainant. 5. Mr.Jethmalani submitted that the facts unmistakably disclose that all the accused including Respondents in conspiracy with each other committed criminal breach of trust, in respect of the property named Doshi Mansion at Kandivali of the firm Bonny Enterprises i.e. in respect of all FSI arising from the said property including such additional FSI, as might become available. He submitted that offence under Section 467 of IPC is also made out on account of forging the conveyance [-4-] of 31.12.2004. He further submitted that the conveyance dated 31.12.2004 discloses offence of 467 of iPC as much as accused no.2 Kamala Doshi, a partner of Bonny Enterprises, signed the same on behalf of Bonny Enterprises, without having authority of other partners including the complainant. Mr.Jethmalani fairly submitted that though no offence under Section 420 of IPC is made out in respect of the applicant, however, offences under Sections 406 and 467 of IPC are made out, hence, this Court should issue process under Sections 406 and 467 of IPC. This submission is reiterated in this written submissions which have been taken on record and marked ‘X’ for identification. 6. For invoking offence under Section 406 of IPC, the essential ingredients would be entrustment of the property with the accused. No doubt, in para 4 of the complaint, the complainant has mentioned that the Respondent no.2 was entrusted with the property for the purpose of development and he was given full charge thereof. However, except the bare words of the complainant in the complaint about entrustment to him, there is no document to [-5-] show that there was any entrustment of the said property to any of the accused. In fact, the documents on record show that the complainant partners and the accused who is also partner in the very same firm had equal rights over the property and each of the partners also had the right to sell or otherwise alienate the property. In the Deed, reference is made to the right of the continuing partner to mortgage, sell, lease or to alienate assets of the partnership. 7. The counsel for the applicant laid great emphasis on the words "continuing Partners" "continuing Partners" "continuing Partners" in the Deed of Retirement. The said clause appears in the Deed of Retirement where some of the partners had retired and therefore, the words used are "continuing partners" as there were some remaining partners including applicant and Respondents. The said clause states that "the continuing partners the continuing partners the continuing partners shall and also be entitled to mortgage, sell, lease shall and also be entitled to mortgage, sell, lease shall and also be entitled to mortgage, sell, lease or otherwise alienate any or all assets of the or otherwise alienate any or all assets of the or otherwise alienate any or all assets of the firm" firm" firm" Mr.Jethmalani submitted that this shows that all the partners together could sell or alienate the property and any one partner could not do the same singly all by himself. If this contention is [-6-] to be accepted then in the said clause after the words ‘the continuing partners ‘the continuing partners ‘the continuing partners’ the word ‘jointly jointly jointly’ would have been added. Not adding the word ‘jointly’ clearly shows that any one of the continuing partners was also entitled to mortgage, sell, lease or otherwise alienate any or all assets of the firm. 8. Useful reference may be made to the decision of the Supreme Court in the case of Velji Raghavji Velji Raghavji Velji Raghavji Patel Vs. The State of Maharashtra, Patel Vs. The State of Maharashtra, Patel Vs. The State of Maharashtra, reported in AIR 1965 SC 1433. AIR 1965 SC 1433. AIR 1965 SC 1433. In the said decision, it has been held that unless there is a special agreement authorising the working partner to recover money and to utilise recoveries for partnership business, the offence of criminal breach of trust, is not made out. In the present case, no special agreement in writing between the parties has been produced. In that case, the appellant had withdrawn the amount in contravention of terms of written Agreement in clause 8. However, in the present case the complainant has not been able to show that respondents-accused have acted in contravention of any terms of any agreement between the complainant and the respondent. In such case, [-7-] in the absence of any such special agreement, it cannot be said that Respondents were entrusted with dominion over the partnership property. 9. In para 8 of the decision of Velji Raghavji Velji Raghavji Velji Raghavji Patel (supra) Patel (supra) Patel (supra) the Apex Court has held that an owner of the property in whichever way, he uses his property and with whatever intention, will not be liable for misappropriation and that would be so even if he is not the exclusive owner thereof. A partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes, he may be accountable civilly to the other partners. But he does not thereby commit any misappropriation. In that case, there was a special written agreement between the parties and clause 8 of that agreement specifically mentions about the power of withdrawal of amount which the appellant in that case withdrew and used in contravention of specific terms of that clause. In the case before me, there is no express agreement which is contemplated in view of the decision of the Apex Court. Therefore, the present case before me does not fall in the category of express [-8-] agreement between the parties so as to hold that the accused had dominion over the property so as to hold them liable for the offence under Section 406 of IPC. 10. The decision of the Apex Court in Vejli Patel’s case (supra), no doubt, is on the merits of that case but it has laid down the ratio that in order to attract the provision under Section 406 of IPC, there has to be an express agreement and even if there is an express agreement, the breach of such agreement would not expose the party to any criminal liability of misappropriation but at the most it may lend to civil consequences. In the case of Velji Patel, it is held that "for offence of criminal breach of trust-Entrustment of dominion over property is essential and it cannot be said in a partnership firm that there is any entrustment to any partner over partnership asset unless there is special agreement to that effect. 11. In the case of a partnership every partner has dominion over the partnership property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his [-9-] property. But, it is not dominion of this kind which satisfies the requirement of Section 406. The prosecution must further establish that dominion over the assets or a particular asset of the partnership was by a Special Agreement between the parties, entrusted to the accused persons. If in the absence of such a special agreement a partner receives money belonging to the partnership, he cannot be said to have received it in a fiduciary capacity or, in other words, cannot be held to have been ‘entrusted’ with dominion over partnership properties. In the decision in the case of Velji Patel (supra) about ‘misappropriation’- it is observed that "an owner of property, in which way he uses his property, and with whatever intention, will not be liable for misappropriation and that would be so even if he is not the exclusive owner thereof. A partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes he may be accountable civilly to the other partners. But, he does not thereby commit any misappropriation." This case is squarely covered by the above decision. In the present case, there is [-10-] no such express agreement, hence, the ratio laid down by the Apex Court would apply and it can be said that no criminal liability arises including liability under section 406 of IPC. 12. Mr.Jethmalani further submitted that the averments in the complaint makes out an offence under Section 467 of IPC. He submitted that when one partner sells out the property of the partnership firm without authority of others, he commits forgery. Reliance is placed on a decision in the case of Emperor Vs.Lallo Ghella [VI BLR 553] supra, wherein it is observed that when a partner has been appointed to manage the business of the firm and if he falsifies the account, he would be liable for forgery, because the fraud is not only against him but against other partners. However, as far as this aspect is concerned, it may be observed that there is no material to show that any of the accused were appointed to manage the business of the firm nor is there any reliable material to show entrustment of property. In fact the partnership deed shows that each of the partners had the power to alienate the property. [-11-] 13. Thus, the decision in the case of Emperor Vs Lallo Ghella (supra) does not help the present applicant to make out a case against Respondents under Section 467 of IPC or even 406 of IPC. 14. It is pertinent to note that the complaint is under Sections 420 and 406 r.w. 120-B of IPC, however, process was issued by the learned Magistrate only under Section 420 of IPC. The process was not issued by the trial Court under Section 406 of IPC. Though process was not issued by the trial Court under Section 406 of IPC, the complainant has not challenged the said order of non-issuance of process under Section 406 of IPC. So whether there was any criminal breach of trust or not or a case for issuance of process under Section 406 of IPC is made out, cannot be gone into by this Court at this stage in the absence of challenge of the order of the trial Court by the complainant for non-issuance of process under Section 406 of IPC. It is well settled that scope of the Court in revision is very limited. In revision, the Court can only see the legality propriety and correctness of the order impugned. Therefore, I can only look into the order of the [-12-] Sessions Court whereby process under Section 420 of IPC, came to be set aside and decide whether the process was rightly recalled. 15. Here I only have to consider whether the order of the Sessions Court is correct, legal and proper. This Court in revision can only consider this limited aspect and cannot go beyond this aspect. The Court of Sessions has rightly gone into the entire material and thereafter had come to the conclusion that there is no prima facie offence made out and therefore, quashed the process under Section 420 of IPC. As observed by me earlier, the learned counsel for applicant also fairly submitted that no case is made out under Section 420 of IPC. 16. The learned counsel for the applicant for the very first time before this Court made a submission that the complaint discloses commission of offence under Section 467 of IPC. It is pertinent to note that when the learned Magistrate had passed the order dated 12.10.2006 for enquiry under Section 202 of Cr.P.C. the present applicant had preferred Criminal Revision Application No.1212 of 2006 and had prayed before the Court of Sessions to set [-13-] aside the order dated 12.10.2006 and to issue process against Respondent under Sections 406 & 420 of IPC. Thereafter, the said Criminal Revision Application was withdrawn and the learned Magistrate after perusing the police report along with the documents, had issued process under Section 420 of IPC. The said order was never challenged by the present applicant. The Respondent had however, challenged the impugned order of issuance of process under Section 420 of IPC and the learned Sessions Judge after perusing the complaint and other material by order dated 1.2.2008 had set aside the order of the learned Magistrate dated 14.2.2007 whereby process was issued under Section 420 of IPC. It is the order of the learned Sessions Judge dated 1.2.2008 which is challenged by the applicant before me by filing this Criminal Revision Application under Section 401 of Cr.P.C. It is pertinent to note that this submission that offence is made out under Section 467 of IPC has not been stated in the complaint nor was it raised or argued before the learned Magistrate or learned Sessions Judge. This point has also not been raised in the memo of this Revision Application, in such case, this contention [-14-] cannot be allowed to be raised for the first time in oral arguments before the High Court. It is pertinent to note that in the present case, no contention that offence under Section 467 of IPC is made out, was ever raised or argued before the learned Magistrate or before the Court of Sessions nor is there any averment in the present Criminal Revision Application filed before this Court regarding the same nor there is any prayer in this Criminal Revision in respect thereof. In this revision also there is no challenge to the order passed by the Magistrate of issuing process only under Section 420 of IPC. On the other hand, in ground 6 (a) of this revision, it is stated that the order of issuance of process was rightly done on the basis of the material gathered and on the basis of the complaint. Moreover, I am considering a revision application. In revision, I can only consider whether the order of the learned Sessions Judge setting aside process under section 420 of IPC is correct, legal and proper. This court cannot travel beyond this aspect. 17. As far as Section 406 of IPC is concerned, no submission regarding the same was advanced before [-15-] the Magistrate or Sessions Court. This Court in revision can only see whether the impugned order i.e. order of the learned Sessions Judge dated 1.2.2008 is correct, legal and proper. It is not possible for this Court to find fault with the order of the learned Sessions Judge on a ground which was not urged before him. As stated earlier such a ground has not even been raised in the Revision before this Court. Hence, at this belated stage any oral submission in respect thereof cannot be considered. 18. The applicant has filed this Revision Application under Section 401 of Cr.P.C. The scope of the Court while deciding a Revision is limited. The Court can only see legality, propriety and correctness of the order challenged in the Revision Application. In the present Revision Application, the order under challenge is passed by the Court of Sessions, whereby the order issuing process under Section 420 of IPC against Respondents was set aside by order dated 1.2.2008. It is also pertinent to note that there is no challenge therein to the order of the learned Magistrate dated 14.2.2007 whereby process was issued only [-16-] under Section 420 of IPC and no other Section. 19. In view of all the above facts, I am of the opinion that the order of the learned Sessions Judge is legal, proper and correct. Hence, Revision application is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]