IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND FEBRUARY 2010 / 3RD PHALGUNA 1931 Crl.MC.No. 4228 of 2009() ------------------------------------- CC.67/2008 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER(S): ---------------------- M.K. DIVAKARAN, AGED 80, S/O. KESAVAN, MINI SADANAM, KANNAMKARA, PATHANAMTHITTA. BY ADV. MR.C.S.MANILAL RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. ARJUN, AGED 3, MINOR, REPRESENTED BY RADHAMANI, W/O. ACHUTHAN N.K., ACHUTHAN BUILDING, MADATHUMOOZHI, PERUNADU, RANNI, PATHANAMTHITTA DISTRICT. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. R2 BY ADV. MR.M.T.SURESHKUMAR, MR.V.V.RAJA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22/02/2010, ALONG WITH CRMC NO.4224 OF 2009, THE COURT ON THE SAME DAY PASSED THEFOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. -------------------------------------------------------- CRL.M.C.NO.4224 & 4228 OF 2009 --------------------------------------------------------- Dated 22nd February 2010 O R D E R Petitioner is the first accused in C.C.60/2008 and 67/2008 on the file of Chief Judicial Magistrate's court, Pathanamthitta, taken cognizance for the offences under Sections 403, 409 and 420 read with Section 34 of Indian Penal Code as against three accused on the allegations that the accused are running Essen Bankers in room Nos. 91 and 92 of Ward No.XXII of Pathanamthitta Municipality and inducing second respondent to believe that sufficient license is obtained from Reserve Bank of India for collecting deposits, induced him to deposit Rs.1,00,000/- on 29/6/2005 promising to Crmc 4224/09 & 4228/09 2 repay the same with interest at 12% on 29/6/2006 and issued fixed deposit receipt No.278, but failed to pay the same on demand and thereby committed the offences. Annexure-XIV in Crl.M.C.4228/2009 establishes that learned Magistrate has taken cognizance for the offences under Sections 403, 409 and 420 read with Section 34 of Indian Penal Code on the very same allegations with a difference that deposit was made by the second respondent for Rs.1,00,000/- in the name of his grand son Arjun, aged three years and obtained receipt No.341 agreeing to repay the same with interest at 12% on 8/12/2006 but failed to pay the same. Petitions are filed under Section 482 of Code of Criminal Procedure contending that petitioner is nothing to do Crmc 4224/09 & 4228/09 3 with Essen Bankers subsequent to 14/8/2002, the date on which he ceased to be a partner, evidenced by relevant entries in Annexure-IV furnished by Registrar of Firms and therefore, continuation of the proceedings as against the petitioner is only an abuse of process of the court. 2. Learned counsel appearing for the petitioner, second respondent and learned Public Prosecutor were heard. 3. Petitioner is being prosecuted on the allegations that he was also one among the accused, who collected deposits without the necessary sanction from Reserve Bank of India and induced second respondent to part with Rs.1,00,000/- each on the promise that it will be repaid with interest at 12% after one year and failed to Crmc 4224/09 & 4228/09 4 do so. Annexure-IV issued by Registrar of Firms establishes that the firm Essen Bankers was registered on 27/10/1998 and petitioner was also one of the partners. But Annexure-IV establishes that he seized to be a partner on 14/8/2002. 4. Deposits in both cases were made in 20085, three years subsequent to the date on which petitioner ceased to be a partner. The only allegation against the petitioner is that he was also one of the partners of the firm, who are responsible for running of the firm. When Annexure-IV establishes that petitioner was not the partner of the firm subsequent to 14/8/2002, and the alleged inducement was made and pursuant to which deposit was made in 2005, petitioner cannot be prosecuted either for Crmc 4224/09 & 4228/09 5 the inducement or the failure to pay the amount as he has nothing to do with the firm after 2002. In such circumstances, continuation of the proceedings as against the petitioner is only an abuse of process of the court. Petitions are allowed. C.C.60/2008 and 67/2008 on the file of Chief Judicial Magistrate, Pathanamthitta as against petitioner, first accused, are quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.