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45. An analysis & survey of the various sections of the Partnership Act are necessary to discover the true nature, character & incident of partnership property. Section 19, Partnership Act discloses the implied authority of a patnr. to deal with partnership property to bind the firm. Section 24 of the same Act contemplates notice to the patnr. as notice to the firm except in the case of fraud on the firm committed by or with the consent of that patnr. But the sections relating to the property of the firm lay down the rules what such partnership property is & how is that to be applied. Section 15, Partnership Act, provides that subject to contract between the patnrs., the property of the firm shall be held & used by the patnrs. exclusively for the purposes of the business. Section 9, Partnership Act, enjoins each patnr. to be just & faithful to each other. Section 10, Partnership Act, requires that every patnr. shall indemnify the firm for any loss caused to the firm by his fraud in the conduct of the business while Section 13 of the same Act requires a patnr. to indemnify the firm for any loss caused to it by his wilful neglect in the conduct of the business.

Further inroads on the Common Law in England were made by such Statutes as Section 24, Forgery Act 1861 (24 & 25 vict. Chap. 98) under which Act it was forgery to endorse a bill by procuration under a false & fraudulent assumption of authority so to endorse it. Under that section now repealed it was held in R. v. Holden, (1912) 1 K. B. 483: (81 L. J. K. B. 327) that a patnr. who with intent to defraud & without lawful excuse or authority accepted a bill in the partnership name had accepted it in the name of another person within the meaning of that Statute & the distinction was sometimes a very fine one as will be seen from the decision of the English Ct. of Appeal in Morison v. London County & Westminster Bank Ltd., (1914) 3 K. B. 356 at p. 381: (83 L. J. K. B. 1202). On behalf of the resp. reliance was placed on the decision of R. v. Warburton, (1870) L. R. 1 C. C. 274: (40 L. J. M. C. 22). As will be apparent from the judgment of Cockburn C. J. in that case the ratio of the decision is that it is a criminal offence to deprive a patnr. of his interest in some of the partnership property by false entries & false documents. That is quite understandable because by falsifying entries a patnr's. interest in the partnership property is affected forthwith irrespective of dissolution or general accounts & this case, therefore, is no authority for the proposition that a patnr. can be convicted of criminal breach of trust by another patnr. in respect of partnership property. Besides it was a case of conspiracy to cheat & defraud & it was immaterial whether the act agreed to be done was itself not criminal, so long as it was illegal. It is so also for criminal conspiracy under Section 120A, Penal Code. Incidentally it may be pointed out here that although at Common Law in England it was not a criminal offence for one co-owner of goods fraudulently to deprive the other co-owners of them, such co-owner being lawfully in possession (1 Hale P. C. 513) it was nonetheless possible that if he took them from a person who was a bailee for all the co-owners he could be convicted of larceny even though the bailee was himself one of the co-owners; R. v. Bramely, (1822) Russ. & By. 478 : (168 E. R. 907) & R. v. Webster, (1861) Le. & ca. 77: (169 E. R. 1311) & that apparently is still the law in any case which cannot be brought within the Larceny Act of 1916. But these in my opinion cannot alter the position of the patnrs' interest in respect of partnership property so as to make one patnr. liable for the offence of criminal breach of trust in respect of partnership property at the instance of another patnr.

(i) "In any manner entrusted with property."

(ii) "Any dominion over property."

(iii) "To his own use."

(iv) "In violation of any direction of law prescribing the mode in which such trust is to be discharged."

(v) "Or of any legal contract expressed or implied."

49. The first question, therefore, for consideration is can a patnr. be said to be in any. manner entrusted with partnership property as against the other patnr. or patnrs. In my view normally not. Section 15, Partnership Act, proviles subject to any contract that the property of the firm shall be held & used by the patnrs. exclusively for the purposes of the business. That in my view means all the patnrs. as between themselves jointly hold & use the partnership property for the purposes of the business & no one patnr. can be said to be entrusted with the partnership property as against the other patnr. or patnrs. under the Ordinary incidents of partnership law under the Partnership Act.

54. The reason, therefore, of holding that a patnr. cannot be prosecuted by another patnr. for criminal breach of trust in respect of partnership property under Section 406, Penal Code, is two-fold. The nature, character & incident of partnership property are such that during the subsistence of the partnership there cannot be, except by special agreement with which we are not concerned here, any entrustment or dominion & secondly partnership property is net a specific & ascertainable property & is of so equivocal & problematic a nature until dissolution & accounts, that it is not susceptible to be used in a manner which can bring into operation Section 405, Penal Code. It is only when such ordinary character & nature of the partnership property are varied by special contract of partnership so as to create entrustment of any specific property in favour of one patnr. as against the others or so as to give exclusive dominion of such property to one patnr. as against the other that there can be any scope of application of Section 405, Penal Code.