IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST DECEMBER 2010 / 10TH AGRAHAYANA 1932 Crl.MC.No. 3813 of 2010() ------------------------------------ CC.186/2009 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER(S): ----------------------- M.K.DIVAKARAN, AGED 80, S/O.KESAVAN, MINI SADANAM, KANNAMKARA, PATHANAMTHITTA. BY ADVS. SRI.C.S.MANILAL SRI.NIDHEESH RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. VILASINI, W/O.SASHIKUMAR, ARUN NIVAS, CHAKALAVILA, PANNIVIZHI MURI, ADOOR.PIN- 689 646. R1 BY PUBLIC PROSECUTOR SRI. P.A.SALIM R2 BY SRI.M.T.SURESHKUMAR SRI.V.V.RAJA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.3813 OF 2010 --------------------------------------------- Dated 1st December, 2010 O R D E R Petitioner is the first accused in C.C.186/2009 on the file of Chief Judicial Magistrate's Court, Pathanamthitta, taken cognizance for the offence under Sections 406 and 420 read with Section 34 of Indian Penal Code on Annexure-VII final report. Second respondent is the de facto complainant. Prosecution case in Annexure-VII final report is that petitioner and the three accused were running ESSEN Bankers, Pathanamthitta and making second respondent believe that the firm is being run following the regulations issued by Reserve Bank of India as a non banking financial institution, induced the Crmc 3813/10 2 second respondent to deposit various amounts on different dates and out of the amounts so deposited, Rs.1,00,000/- was repaid and including the chitty amount, balance of Rs.11,37,574/- is yet to be repaid and it was misappropriated and therefore, all the accused committed the offences. Petition is filed under Section 482 of Code of Criminal Procedure to quash the cognizance taken against the petitioner contending that petitioner was implicated as first accused, for the reason that he is one of the partners of the firm and as seen from Annexure-IV certificate issued by the Registrar of Firm, petitioner ceased to be a partner w.e.f. 14/8/2002 and partnership firm was thereafter reconstituted by Annexure- V reconstituted deed of partnership dated 14/8/2002 and petitioner is not a partner Crmc 3813/10 3 thereafter and as per final report during the period when petitioner was a partner of the firm, Rs.40,000/- was deposited on 4/9/2000 and Rs.25,000/- was deposited on 16/5/2002 and all the balance amount was deposited later at a time when petitioner ceased to be a partner and till the petitioner retired from the firm on 14/8/2002, there was no request for re- payment of the deposit made and in such circumstances, petitioner cannot be prosecuted. Petitioner would also contend that evidenced by Annexure-VIII order, this Court has already accepted his case and quashed the case against him in C.C.60/2008 on the file of Chief Judicial Magistrate's Court, Pathanamthitta. 2. Learned counsel appearing for the second respondent pointed out that petitioner is not disputing the fact that Rs.40,000/- was Crmc 3813/10 4 deposited on 4/9/2000 and Rs.25,000/- on 16/5/2002 when petitioner was one of the partners of the firm and hence he is liable for the offences. 3. Final report itself establishes that subsequent to 16/5/2002, petitioner received Rs.1,00,000/- out of the amount deposited. Before retirement of the petitioner total amount deposited is only Rs.65,000/-. In such circumstances, petitioner cannot be prosecuted for non payment of the deposit made subsequent to the date of his retirement. Hence continuation of the proceedings against the petitioner is only an abuse of process of the Court. Petition is allowed. Cognizance taken against the petitioner in C.C.186/2009 on the file of Chief Judicial Magistrate's Court, Crmc 3813/10 5 Pathanamthitta is quashed. It is made clear that case may be proceeded against other accused. M.SASIDHARAN NAMBIAR, JUDGE. uj.