Ingredients of 409
Nakibur Rahman
(Querist) 27 November 2012
This query is : Resolved
Respected Sir,
Please advice whether my submission in the following are correct or not or if any expert can modify the same
Since the matter is Evidence before charge.
On 14/08/2007 learned council for complainant submitted document in connection with construction of civil hospital those are (1) Deed of Partnership (2) General Power of Attorney (GPA) and (3) some other document.
The Deed of Partnership produced is irrelevant for the said work. The entire work was allotted in the name of x not in the name of M/s Y. Enterprise. Fact is that the firm M/s Y Enterprise died before born and the GPA is also irrelevant for X’s work, because GPA is to handle the work of M/s Y Enterprise only, to work in my own firm I don’t need any ones General Power of Attorney nowhere in the agreement with any Department or in the work order of the department is mentioned the name of the firm M/s Y Enterprise.
In the sheweth of the complainant at serial No. 6 (six) stated by the complainant that “..it would be relevant to mention here that at the time of get allotment of the aforesaid works in his name the accused person induced the complainant to execute a Power of Attorney in his favour...) ...” is false, the notice inviting tender for the work at AAA ITI was called on 22/07/2005 and work was allotted X on 29/08/2005 and the power of attorney was executed on 09/09/2005. (P.O.A. was executed after allotment of the work).
In response to some other document submitted by the complainant, I don’t know what document the complainant produced before the court but I clarify that a loan was applied before the SBI AA main branch against property mortgage of the complainant and the same was granted to M/s Y Enterprise and the loan amount was deposited in the personal Bank account at the same bank in the account of complainant (Mr. B) with our consent but it is not known to me for what he (Mr. B) made expenses and no accounts was given to me for the said loan till date. Rather he send a letter on 08/10/2006 without my knowledge (Enclosed as Annexure - I) to the Manager State Bank of India requesting to intimate D.C. to realize the balance amount from my account without sending me a copy of the letter but the D.C. did not do so, the complainant further stated in the same letter that “.. we have no interest at all to continue this firm any further...... Since our firm no longer exist so, I am afraid to mortgage my property any further....” this information was not given to me even I was not informed about the dissolution of the firm, information about dissolution of the firm was mandatory according to the deed of agreement, complainant motto was to cheat me as they could not successes. Therefore these entire allegations they have put before the Hon’ble court with such sets of documents which has no connection with my business. I am in the business since long back the complainant himself stated in the process of evidence that “since I was a 1st class Govt. registered contractor..... One 1st class contractor have to be solvent, so there claim regarding poor financial condition of mine is false (Enclosed two Solvency certificate one is for the year 2004 and another for the year 2006.As Annexure – F & G)
I pray to the Hon’ble court not to charge the matter U/s 409 for the following reasons
For ingredients of section 409 one has to be public servant, or banker, merchant or agent, I am none of these I am owner of my own firm with name & style X as such I have the absolute ownership rights regarding my firm I am not holding a position of trust of others, of course some financial transaction was there which was just hand loan as usual.
No criminal breach of trust ever done from my part, since no entrustment can be done of one owns firm by other person so breach of trust does not arise.
Till date I have not use the Deed of Partnership and the Power of Attorney for any contract works.
The complainant stated in his sheweth that they sent messenger to my house but they never mentioned the name of those messengers and never produced before the court as evidence.
If I ignored the complainant, they could have sent me the accounts by Post for their claim or they could have send me legal notice, they did not do so and without submitting any accounts to me they choose to knock the door of court reason is best known to them.
Please allow me to humbly coat some excerpt of citations: 1965 AIR 1433, 1965 SCR (2) 429 which might be relevant to decide the matter. .
CRIMINAL APPELLATE, JURISDICTION : Criminal Appeal No. 43 of 1963.
Appeal by special leave from the judgment and order dated February 1, 1963 of the Bombay High Court in Criminal Appeal No. 972 of 1962.
....there is really no partner's share in the property until an account (sic) and it may well be that a partner, who retains an asset, is entitled not only to his share according to the partnership agreement in that asset, but, on taking an account, it may be found that he is entitled to the whole of the asset and considerably more. In such a case, how can it be said that he has been of a breach of trust and has acted dishonestly towards his co- partners, if an account would show that he was entitled to everything which he had retained?”
in Bhuban Mohan Rana's case(1) by the later Full Bench of the Calcutta High Court is the right one... it is obvious that before a person can be said to have committed criminal breach of trust it must be established that he was either entrusted with or entrusted with dominion over property which he is said to have converted to his own use or disposed of in violation of any direction of law etc.
In order to establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris C.J., the prosecution must 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 person. 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 fidu- ciary capacity or in other words cannot be hold to have been "entrusted" with dominion over partnership properties.
R.K Nanda
(Expert) 27 November 2012
contact local lawyer.
prabhakar singh
(Expert) 27 November 2012
ONLY AFTER GOING THROUGH ENTIRE BRIEF ONE CAN BE ABLE TO SUGGEST WHICH IS NOT POSSIBLE HERE BETTER SEE SOME ONE PERSONALLY IN YOUR CITY.
Raj Kumar Makkad
(Expert) 28 November 2012
It shall be better for you to have specialized services of any local lawyer dealing in criminal cases so that you may discuss your problem with documents.
