IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 10TH JANUARY 2008 / 20TH POUSHA 1929 Crl.MC.No. 2510 of 2002 C.C.NO.1344/2001 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER: ACCUSED 1 AND 2 1. MR.VASANT R.PANDIT,PROPRIETOR, M/S.FRONTIER TRADING,SHENOY CHAMBERS, SHANMUGHAM ROAD,ERNAKULAM 2. MR.JUNG MYUNG JANG,SUPER MASTER DISTRIBUTOR, FRONTIER TRADING,913,DULA MAL TOWER. FRE PRESS JOURNAL ROAD,NARIMAN POINT, MUMBAI-400021 BY ADV. SRI.G.JANARDHANA KURUP (SR.) SRI.T.A.SHAJI RESPONDENTS: COMPLAINANT AND STATE 1. P.M.BABY,POTTEKKAL HOUSE, ADIMALY P.O., IDUKKI DISTRICT. 2. STATE OF KERAL,REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY ADV. SRI.T.RAVI KUMAR PUBLIC PROSECUTOR SRI.AMJETH ALI. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10/01/2008, ALONG WITH CRL.M.C. NO.5250 OF 2003, THE COURT ON 10/01/2008 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos.2510 OF 2002 & 5250 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of January 2008 ORDER These two petitions are at the instance of the accused. They seek to quash the respective proceedings pending against them before the trial court. Since the facts involved in these two petitions are closely inter related they are being disposed of through this common judgment. 2. Petitioners in Crl.M.C.No.2510/02 are the accused in C.C.1344/01 on the file of the Chief Judicial Magistrate's Court, Ernakulam. Respondent No.1 (hereinafter referred to as the complainant) had filed the above complaint against petitioners alleging commission of offences punishable under Sections 403 and 409 read with Section 34 IPC. 3. In Annexure-A complaint, it was alleged that petitioner No.1 was the proprietor of M/S Frontier Trading having its office at Ernakulam. Petitioner no.2 was described as the Super Master Distributor of a “magnetic bed” which promised or assured medical cure for a few ailments. Petitioner no.1 being its sole Crl.M.C.Nos.2510 OF 2002 & 5250 OF 2003 :: 2 :: distributor in India. It was further alleged that the bed was called “total sleeping system” and the concern by name Japan Life was dealing with the distribution of the bed. I do not propose to deal with the alleged qualities of the bed at this stage. According to the complainant, he was enrolled as independent representative for marketing the above bed. He had paid a sum of Rs.74,588/- as the purchase value of one sleeping system worth Rs.74,588/-. On such purchase, the complainant became entitled to work in the “multi level marketing scheme” which means that he should get three other persons to join the scheme for being promoted to the post of an Advisory Distributor. A person who joins as distributor of the company will get incentives at higher rates depending on the business canvased by the other independent representatives who get themselves enrolled by purchasing the sleeping system as a chain. 4. The grievance of the complainant in Annexure-A was that the accused had deliberately deceived him and other members by terminating their services. He further alleged that the actual Crl.M.C.Nos.2510 OF 2002 & 5250 OF 2003 :: 3 :: price of the bed was just below Rs.11,000/- and that the entire procedure which was presented as a multi level marketing system was nothing but money chain business. 5. I do not propose to refer to the various other averments made in Annexure-A complaint at this stage, since in my view the trial court has to necessarily deal with the case on the basis of the evidence that may be adduced by the parties. 6. However, there is some force in the contention raised by the learned counsel for the petitioners that the averments made in the complaint do not disclose any offence, much less those under Sections 403 and 409 IPC at all. It is vehemently contended by the learned counsel that Annexure-A complaint was a counter blast to the case registered by the police against the complainant and six others at the instance of petitioner No.1 who had filed a complaint before the Police against them alleging commission of offences punishable under Sections 120B, 406, 409 IPC and also under Section 3 and 4 of Prize Chits and Money Circulation Scheme (Banning Act) 1978 read with Section 34 IPC. Crl.M.C.Nos.2510 OF 2002 & 5250 OF 2003 :: 4 :: 7. It is true that Central Police Station, Ernakulam had registered crime No.412/2000 against the complainant and six others for the offences referred to above. Accused No.3, in the above crime, has preferred Crl.M.C.No.5250/03 seeking to quash the above charge. 8. The charge in the above crime was that the accused had, in furtherance of their common intention and also pursuant to criminal conspiracy, collected huge amounts from the public contravening the terms and conditions of business of the defacto complainant for distribution of the bed referred to above. Yet again, I refrain from making any comment on the sustainability of the police charge at this stage. As mentioned earlier, the court below has to deal with the two cases appropriately in accordance with law. 9. However, in the peculiar facts and circumstances of the case, I am satisfied that the trial court has to necessarily consider the question whether charge is liable to be framed against the accused in the two cases. It will be open to the accused in the Crl.M.C.Nos.2510 OF 2002 & 5250 OF 2003 :: 5 :: two cases to plead for discharge before the trial court, in which event, the learned Magistrate shall take a decision on the said question in accordance with law. Till such time a decision is taken on the plea of discharge, personal appearance of petitioner No.2 in Crl.M.C.No.2510/02 shall be dispensed with, if such a motion is made on his behalf. Crl.M.Cs. are disposed of in the above terms. (A.K.BASHEER, JUDGE) jes Crl.M.C.Nos.2510 OF 2002 & 5250 OF 2003 :: 6 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.Nos.2510 OF 2002 & 5250 OF 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 10th Jan. 2008