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. 3466 of 2009() ------------------------- CC.1134/2009 of JUDL.MAGISTRATE OF FIRST CLASS-III, PUNALUR .................... PETITIONER(S): ACCUSED 6 AND 8: ----------------------------------------------------- 1. REENY RAJAN BABU, AGED 55 YEARS, W/O.P.T. RAJAN BABU, RESIDING AT JAYABHARATHAM BUNGLOW, NO.1, ERUMAPETTY IN PUNALUR VILLAGE, PATHANAPURAM TALUK. 2. SERU MOHAN BABU, AGED 53 YEARS, W/O. P.T. MOHAN BABU, RESIDING AT JAYABHARATHAM GARDENS, NEAR RAILWAY STATION, PUNALUR VILLAGE, PATHANAPURAM TALUK. BY ADVS. MR.V.V.RAJA, MR.M.T.SURESHKUMAR. RESPONDENT(S): COMPLAINANT: --------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL.R2 IS IMPLEADED: R2. MATHEWS THOMAS, S/O.THOMAS, AGED 60 YEARS, RESIDING AT KUMBAZHA KADAKKAL MEMURIYIL, KUMPAZHA, PATHANAMTHITTA. (*ADDL.R2 IS IMPLEADED AS PER ORDER DTD. 20/11/2009 IN CRL.M.A.NO.6251/2009) R1 BY PUBLIC PROSECUTOR MR. S.U. NAZAR R2 BY ADV.MR.MANOJ RAMASWAMY THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/01/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.3466 OF 2009 =========================== Dated this the 20th day of January,2010 ORDER Petitioners are accused 6 and 8 in C.C.1134/2009 on the file of Judicial First Class Magistrate's Court, Punalur taken cognizance for the offence under section 420 read with section 34 of Indian Penal Code against nine accused, on Annexure 2 final report. Second respondent is the de facto complainant. Annexure 1 F.I.R was registered on recording the First Information Statement of the second respondent. Prosecution case, as is clear from Annexure 2 final report, is that nine accused are partners of Jayabharatham Financiers and the said financiers collected Rs.4,75,000/- as fixed deposit and Rs.42,679/- as subscription of the chitty from first charge witness and Rs.1,25,000/- was collected Crl.M.C.3466/2009 2 from the second charge witness and in the name of the daughter of the third charge witness Rs.7,78,315/- was collected from the third charge witness, in the name of the mother of the fourth charge witness Rs.2,20,000/- was collected from the fourth charge witness, and Rs.50,000/- was collected from the fifth charge witness and Rs.1,15,000/- was collected as fixed deposit from the sixth charge witness and cheated all of them by not repaying the amount when demanded and thereby committed the offences. This petition is filed under section 482 of the Code of Criminal Procedure contending that petitioners are accused 6 and 8 and they were implicated only on the allegation that they are partners of the firm “Jayabharatham Financiers” and though petitioners, who are wives of the two brothers of the first accused, and they were earlier partners of Jayabharatham Financiers, the said firm was defunct from 1995 onwards and a lawyer notice was sent at the instance of the petitioners, to the first accused for dissolution of the said firm and for settlement of the account Crl.M.C.3466/2009 3 stating that as the firm is defunct and a firm at will, steps are to be taken for dissolution of the firm and settlement of the accounts. Petitioners have filed Annexure 6 plaint before Sub Court, Kottarakkara as O.S.270/1995 for dissolution of the firm. By Annexure 7 judgment Sub Court dissolved the partnership firm Jayabharatham Financiers and a preliminary decree was passed. There is finding in Annexure 7 that even according to the first accused, the managing partner the firm was not functioning after 1995. It is contended that in such circumstances, petitioners cannot be prosecuted for the amount collected by the first accused or the other accused. Annexure 3 and 4 deed of partnership were also produced to show that first accused and others had constituted Jayabharatham Financiers and Chits and petitioners are not partners of firms and if the other accused had collected money, petitioners are not liable and continuation of the proceedings as against the petitioners is an abuse of process of the court. Crl.M.C.3466/2009 4 2. Learned counsel appearing for the petitioners, second respondent and learned Public Prosecutor were heard. 3. Petitioners who are none other than the wives of two other brothers of the first accused, were implicated in the case only on the allegation that they were partners of the firm by name Jayabharatham Financiers. Though Annexure 6 plaint and Annexure 7 judgment in O.S.270/1995, shows that the firm Jayabharatham Financiers was constituted on 1.5.1982 and both the petitioners were partners of the firm, by Anneuxre 7 judgment the firm was dissolved. Annexure 7 judgment also shows that even according to the first accused the managing partner of the firm was not functioning from 1995 onwards. Annexure 3 and 4 establish that first accused and others had started Jayabharatham Financiers and Chits by Annexure 3 Partnership Deed dated 1.4.1992 and by Annexure 4 deed of partnership dated 1.4.2003, which was continuation of the original partnership firm which was constituted on 1.11.1992. Therefore even if the Crl.M.C.3466/2009 5 partners of the Jayabharatham Financiers had collected amount for the firm constituted under Annexure 3 or 4, petitioners cannot be made liable as they are not partners of the firm. When Annexure 7 judgment shows that, as claimed by the petitioners in Annexure 5 notice Jayabharatham Financiers was defunct from 1995, petitioners cannot be prosecuted for either the collection or deposits subsequent to 1995 or its non payment. Therefore continuation of the prosecution as against the petitioners is only an abuse of process of the court. Petition is allowed. Cognizance taken as against petitioners the accused 6 and 8 in C.C.1134/2009 by Judicial First Class Magistrate Court is quashed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006