IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 Crl.MC.No. 3997 of 2009(D) -------------------------------------- CC.NO.3648/2009 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... PETITIONER/ACCUSED NO.4: ------------------------------------------ K.K.SUDHEER, AGED 34 YEARS, S/O. K.A.KUMARAN, KOOTTAPURAKKAL HOUSE, CHERAI.P.O., PIN-683 514. BY ADV. SMT.SARITHA DAVID CHUNKATH. RESPONDENTS/PETITIONERS: --------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR. 2. THE SUB INSPECTOR OF POLICE POLICE STATION, PUDUKKAD, THRISSUR. 3. MR. RAMAKRISHNAN, AGED 34 YEARS, S/O. KUNJITTY, ALOTH HOUSE, PNJAPPILLY DESOM, KALLETTUKARA VILLAGE, THRISSUR. R1 & R2 BY PUBLIC PROSECUTOR MR. P.A. SALIM. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/01/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3997 OF 2009 =========================== Dated this the 20th day of January,2010 ORDER Petitioner is accused No.4 in C.C.3648/2009 on the file of Judicial First Class Magistrate's Court, Irinjalakuda taken cognizance for the offence under section 420 read with section 34 of Indian Penal Code against four accused on Annexure F final report. Case was registered under Annexure E F.I.R on recording the First Information Statement of Ramakrishnan, son of Kunjutti on 18.9.2008 against accused 1 to 3 on the allegation that they had collected subscriptions after enrolling several persons in a Chitty run by the firm in the name Swasraya Chits Company and before the expiry of the period, they closed the office and cheated the subscribers. This petition is filed under Crl.M.C.3997/2009 2 section 482 of the Code of Criminal Procedure to quash the case as against the petitioner contending that, though by Annexure A partnership deed dated 18.6.2007 petitioner was the first partner of the partnership firm by name M/s.Swasraya Chits, by Annexure B deed of reconstitution of the partnership firm on 17.7.2007, petitioner retired from the firm and only the other accused are the partners and notice of change of constitution of the firm was intimated to the Registrar of firms on 17.7.2007 itself and by Annexure C and D paper publications it was intimated to the general public also and in such circumstances petitioner cannot be prosecuted for the failure of the firm to pay the amount due under chitty to its subscribers and continuation of the proceedings against the petitioner is only an abuse of process of the court. 2. Though notice was served on the third respondent,the de facto complainant, he did not Crl.M.C.3997/2009 3 appear. 3. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 4. Annexure F final report shows that petitioner was implicated in the case as an accused on the ground that he is also one among the partners of the firm and the firm had conducted chitty and collected amount by way of subscriptions to the chitty and before paying amount, closed the chitty and thereby cheated the subscribers. Though the charge shows that the amount was collected from 7.2.2007 onwards till 8.7.2008, the very case is that the amount was collected by the firm and not by the original proprietory concern. Annexure A shows that the partnership firm was constituted only on 18.6.2007. When there is no allegation that petitioner made any inducement or representation to any subscriber to join the chitty transaction prior to the constitution of the firm Crl.M.C.3997/2009 4 by Annexure A, on 18.6.2007, petitioner cannot be prosecuted for any act done prior to the constitution of the firm. In fact there is no such case for the prosecution also. When the dishonest intention is alleged as against the petitioner, only after the constitution of the firm and Annexure B deed of retirement establishes that within one month of the constitution of the firm, the firm was reconstituted whereunder petitioner ceased to be a partner, continuation of the prosecution as against the petitioner is only an abuse of process of the court. Petition is allowed. C.C.3648/2009 on the file of Judicial First Class Magistrate's Court as against the petitioner accused No.4 is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006