IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3466 of 2009()
1. REENY RAJAN BABU, AGED 55 YEARS,
... Petitioner
2. SERU MOHAN BABU, AGED 53 YEARS,
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.V.V.RAJA
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :20/01/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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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.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006