IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 3813 of 2010()
1. M.K.DIVAKARAN, AGED 80,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. VILASINI, W/O.SASHIKUMAR,
For Petitioner :SRI.C.S.MANILAL
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :01/12/2010
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.3813 OF 2010
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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
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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
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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
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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,
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Pathanamthitta is quashed. It is made clear
that case may be proceeded against other
accused.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.