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9. It seems clear that before criminal breach of trust is established it must be shown that the person charged has been entrusted with property or with dominion over property & that he has been guilty of 'breach of trust' using that latter phrase loosely. There must be entrustment & therefore the person accused must be shown to have held the property in a fiduciary capacity.

10. On behalf of the petnr. it has been argued that a patnr. does not in the ordinary course hold partnership property in a fiduciary capacity. The partnership property belongs to the patnrs. & one patnr. apart from any special agreement, has as much right to the property as any other patnr. A patnr. who holds partnership property, it is said, holds it in his own right & it cannot possibly be said that he holds it in a fiduciary capacity.

11. The question whether a patnr. received or held partnership property in a fiduciary capacity was considered by the English Cts. in the case of Piddocke v. Burt, (1894) 1 Ch. 343 : (63 L. J. Ch. 246) where it was held that one patnr. receiving assets of the partnership on account of himself & his co-ptnrs. is not liable to imprisonment under Section 4(3). Debtors Act, 1869 as a person acting in a, fiduciary capacity.

12. The point which had to be considered in that case was whether a patnr. who had retained certain of the partnership assets could be said to have acted in a fiduciary capacity. At p. 346 Chitty J. observed :

13. The learned Judge having held that a patnr. who received payment of a debt due to the partnership firm did not hold the money in a fiduciary capacity, held that no offence had been committed under the Debtors Act.

14. If a patnr. who receives money on behalf of the partnership does not receive it in a fiduciary capacity then it appears to me that he could not be charged with fraudulent breach of trust by reason of his failing to account for that money. Similarly, if a patnr. is holding property belonging to the partnership, he is holding it as one of the patnrs. entitled to hold it &, therefore, I think it could not be said that he was holding it in a fiduciary capacity, that is, as a kind of trustee for himself & his other patnrs. If he could not be said to be holding the property in a fiduciary capacity then it is difficult, & indeed impossible, to hold that he could be said to have been entrusted with that property.

31. The Bench of the Bombay H. C. realised that whether or not there was a dishonest intent would depend upon a partnership account & the criminal Cts. which appear to be singularly inappropriate for taking partnership accounts were warned to be very careful. The Bombay case, however, does not consider the English authorities & does not consider whether or not a patnr. who receives money from a creditor of the firm holds that money in a fiduciary capacity. It seems to have been assumed by the learned Judges that the patnr. did, whereas as I have pointed out the English view was that the patnr. did not hold the money in a fiduciary capacity & it appears to me that the English view is correct & has been followed by a number of Benches of this Ct.