I am eager to know from the legal practitioners of Human Rights about the Relevant Articles Applicable (besides the mentioned Articles) as described in the following Application?
Date: 16th November, 2009
To,
The Honourable Chairman,
West Bengal Human Rights Commission (WBHRC)
Bhabani Bhaban, 2nd Floor, Alipore
Calcutta – 700027, West Bengal
Respected Sir,
- I, Sri Sandip Thakur, Son of Late Satyendra Nath Thakur, Residing at South Bankimpally, Madhyamgram, North 24 Parganas beg to write you this letter. Since 23rd October 2009, I have been detained in Judicial Custody in the Dum Dum Central Correctional Home in reference G.R. 2571/09, alleged to be occurrence of an unjustified and Unfounded cognizable offence impugned reported against me and I have been indiscriminately arrested under section 154 of CrPc by the Sub-Inspector Anandamoy Chatterjee, Barasat Police Station, North 24 Parganas, West Bengal connecting the Case No. 756 dated 15.09.2009 under sections 420, 406, 408 IPC where the genuineness and bonafides of the Sections applied under the sections of IPC in question were unrealistic and baseless. No particulars or well-founded grounds exist in the report for my arrest.
- So I am making this as a complaint of violation of my Human Right by the Sub-Inspector Anandamoy Chatterjee, Barasat Police Station, North 24 Parganas. The said incident subjected my arbitrary arrest that was made in a routine manner, the very action interfered with my privacy, jeopardized my honour, reputation and harm to my self-esteem also encroached upon my personal liberty. The arrest has been made because it was lawful for the Sub-Inspector to do so but it was done without any justification. The Sub-Inspector must be able to justify the arrest apart from his power to do so. The same action violated my human rights under Article 21 CI, Article 9 UD, Article 12 UD, Article 23 (1) UD and is not sub-judice anywhere in India.
- The Complainant of the FIR is nothing but can be deemed to be my business partner/s so that the FIR clearly mentions about the investments made in a commercial business jointly owned by us that too on the basis of verbal understanding with me. It is also mentioned in the FIR by the complainant that the objective of the investments were "profit Sharing" from the business so, according to the definition of THE INDIAN PARTNERSHIP ACT 1932, "Partnership" is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Therefore the nature of partnership can not be denied in the instant case. Besides, the fact about the partnership, the Complainant in his FIR clearly prayed for the recovery of the invested capital along with the accumulated profit share, if any, from the business. So considering the nature and the content of the FIR, reasonably it is not clear how such criminal charges can be established against me?
- I, being a partner in the business, cannot be prosecuted by another profit sharing 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 co-partner investing such money. As a partner receives money belonging to a partnership or holds moneys 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. Besides that a partner cannot be prosecuted by another partner for criminal breach of trust in respect of partnership property because 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 it is not susceptible to be used in a manner which can bring into operation under Section 405 of the IPC.
- In order to establish Section 420 IPC the complainant is to make out a case of false and fraudulent representation by me, delivery of money being induced by me, and misappropriation of the said money delivered to me, thereby causing wrongful loss to the complainant and wrongful gain to me. The written complaint on the basis of which the present criminal case was started, it appears that nowhere in the said written complaint it has been alleged that any money belonging exclusively to the complainant was entrusted to me and there is also nothing in the complaint to show that I have induced the complainant by way of fraudulent representation to part with his money and thereafter the said money was misappropriated with the intention of obtaining wrongful gain by me. The complainant has been sharing profit for the business so in absence of those materials, it cannot be said that the complainant has been able to make out a case under Section 406/420 of the IPC.
- I am, being a partner in a business, not a clerk or servant or employed as a clerk or servant by the complainant (another profit sharing partner) so the established relationship between us as co-partners but not as employee and employer therefore, I, also being a partner, cannot be prosecuted by the complainant (another profit sharing partner) with the charge of Section 408 of the IPC on the ground of committing criminal breach of trust by another partner.
I therefore, pray before your honour through this letter, to treat this letter of mine as complaint for violation of human rights under Article 21 CI, Article 9 UD, Article 12 UD, and Article 23 (1) UD so that I can be protected under the Human Rights Act, 1993.
Thanking you,
Yours Faithfully
(SANDIP THAKUR)
