IN THE HIGH COURT OF KERALAATERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.KEMAL PASHA THURSDAY,THE 5TH DAYOF SEPTEMBER 2013/14TH BHADRA, 1935 Crl.MC.No. 224 of 2008 ( ) --------------------------- CC 37/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT,PARAVOOR PETITIONERS/ACCUSED 3,4 & 5:: ------------------------------------------------------------ 1. SANDHYA.S.PILLAI, ANANDHABHAVAN, AYIROOR P.O.
2. SAJEESH ANAND, ANANDHABHAVAN, AYIROOR P.O.
3. SAJEEV ANAND, ANANDHABHAVAN, AYIROOR P.O. BY ADVS.SRI.M.BALAGOVINDAN SRI.M.R.SASITH PANICKER RESPONDENTS : ------------------------------ 1. STATE REPRESENTED BY THE STATE PROSECUTOR, HIGH COURT , ERNAKULAM.
2. SUKUMARAN.P.,PRASANTHI BHAVAN, PARIPPALLI.P.O., KOLLAM. ADDL.R3 IMPLEADED ADDL.R3. S.GIRIJA DEVI, W/O.LATE P.SUKUMARAN, PRASANTHI BHAVAN, PARIPPALLI.P.O., KOLLAM. ADDL.R3 IS IMPLEADED VIDE ORDER
DATED 06.08.2008 IN CRL.M.A.NO.4138/2008 R1 BY PUBLIC PROSECUTOR SMT.SHEEBA.M.T ADDL.R3 BY ADV.SRI.S.D.ASOKAN THIS CRIMINAL MISC. CASE HAVING BEEN FINALLYHEARD ON 05-09-2013, THE COURT ON THE SAME DAYPASSED THE FOLLOWING: AV Crl.MC.No. 224 of 2008 ( ) APPENDIX PETITIONERS' ANNEXURES : ANNEXURE-1 : TRUE COPY OF THE COMPLAINT C.C.NO.37/2007 OF THE J.F.C.M COURT,PARAVOOR ANNEXURE-2 : TRUE COPY OF THE PARTNERSHIP DEED ANNEXURE-3 : TRUE COPY OF THE RELEVANT PAGE OF SSLC BOOK SHOWING THE AGE OF 1ST PETITIONER ANNEXURE-4 : TRUE COPY OF THE RELEVANT PAGE OF SSLC BOOK SHOWING THE AGE OF 2ND PETITIONER ANNEXURE-5 : TRUE COPY OF THE RELEVANT PAGE OF SSLC BOOK SHOWING THE AGE OF 3RD PETITIONER ANNEXURE-6 : TRUE COPY OF THE JUDGMENT
OF THE COURT OF THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION DT.31-05-2005 RESPONDENTS' ANNEXURES : ANNEXURE R3(a) : TRUE COPY OF THE LETTER DATED 25.11.98 OF THE INSPECTING ASST.COMMISSIONER, THIRUVANANTHAPURAM ANNEXURE R3(b) : TRUE COPY OF THE LICENCE DATED 16.6.1986 OF THE INSPECTING ASST.COMMISSIONER, THIRUVANANTHAPURAM ANNEXURE R3(c) : TRUE COPY OF THE APPLICATION SUBMITTED BY M.SADANANDAN PILLAI FOR RENEWALOF LICENCE DURING 1988-89 ANNEXURE R3(d) : TRUE COPY OF THE CERTIFICATE ISSUED BY THE UNITED INDIA INSURANCE CO. ANNEXURE R3(e) : TRUE COPY OF THE LETTER DATED 18.7.97 ISSUED BY INSPECTING ASST.COMMISSIONER, THIRUVANANTHAPURAM TO THE TREASURY OFFICER, VARKALA ANNEXURE R3(f) : TRUE COPY OF THE JUDGMENT
DATED 3.11.2003 IN OS NO.266/2000 PASSEDBY THE MUNSIFF'S COURT, VARKALA ANNEXURE R3(g) : TRUE COPY OF THE EXTRACT OF ADMISSION REGISTER OF THE 2ND PETITIONER 16.8.2000 ISSUED BY HEADMASTER, GOVT. U.P.S.AYIROOR ANNEXURE R3(h) : TRUE COPY OF THE EXTRACT OF ADMISSION REGISTER OF THE 2ND PETITIONER 16.8.2000 ISSUED BY HEADMASTER, GOVT.U.P.S.AYIROOR /TRUE COPY/ P.A TO JUDGE AV B. KEMAL PASHA, J ------------------------------------ Crl.M.C.No. 224 of 2008 ----------------------------------- Dated this the 5th day of September, 2013 ORDER
The petitioners, who are A3, A4 and A5 respectively in C.C.No.37/2007 of the Judicial First Class Magistrate's Court, Paravoor, Kollam, have come up with a prayer to get the proceedings against them in the said case, quashed.
2. The case before the court below is the result of a private complaint filed by way of protest complaint by the second respondent herein as complainant, alleging offences punishable under Section 409 read with Section 34 of the Indian Penal Code. The father of these petitioners is arraigned as the first accused in the complaint.
3. It is alleged that the present petitioners were also admitted as partners in a partnership firm named Indian Ananda Fund (Bank) which was allegedly constituted on 16.07.1979. It is alleged that huge amounts were amassed from the public including the complainant herein, by the said partnership firm on which the first accused was the Managing Partner, and thereafter the said firm defrauded and cheated all the members of the public from whom Crl.M.C.No. 224 o”
2. various amounts were obtained by it. It is alleged that the entire amounts were misappropriated, thereby the partners committed criminal breach of trust as bankers, and thereby committed the offence under Section 409 read with Section 34 of the Indian Penal Code.
4. The case of the petitioners is that the first and second petitioners were minors at the time when the partnership was allegedly constituted, and that the third petitioner was not even born at the time when the partnership was allegedly constituted. A copy of the partnership deed has been produced as Annexure-A2 which reveals that these petitioners were admitted as partners 8, 9 and 10 in the partnership deed and they were styled as minors. Of course, as per Section 30(1) of the Indian Partnership Act, 1932, minors can also be admitted as partners of the firm with the consent of all the other partners at the time being.
5. The copy of the relevant page of SSLC Book of the first petitioner has been produced as Annexure-A3 which reveals that the first petitioner, who was admitted as 8th Crl.M.C.No. 224 o”
3. partner in the firm, was born on 31.05.1975. It seems that her age has been falsely noted in Annexure-A2 partnership deed as 13, whereas, she was only 4 years old as on the date of constitution of the partnership. Annexure-A4, the relevant page of SSLC Book of the second petitioner reveals that his date of birth is 30.05.1977. In Annexure-A2 partnership deed, his name has been shown as the 9th parter, and his age has been falsely shown as 10 years. At the same time, the records clearly reveals that he was only 2 years old at the time of constitution of the firm. It is strange to note that the third petitioner was admitted as 10th partner in Annexure A2 partnership deed, by showing his age as 7 years. Whereas, the relevant page of SSLC Book produced as Annexure A5 clearly reveals that his date of birth is 25.05.1981, which means that he was not even born on the date of constitution of the partnership.
6. It seems that under the guise of a partnership, numerous members of the public were cheated and defrauded. Of course, they have the right to proceed against the concerned persons for such criminal acts. At the same Crl.M.C.No. 224 o”
4. time, petitioners 1 and 2, who were falsely admitted in the said partnership deed, are entitled to the protection under Section 30(3) of the Indian Partnership Act as well as under Section 82 of the Indian Penal Code, as they were under the age of seven, even at the time of the constitution of the partnership. As far as the third petitioner is concerned, he was not even born, when he was admitted as a partner by styling him as a person of 7 years of age in Annexure-A2 partnership deed. It seems that Annexure-A2 partnership deed is also a document which was subsequently cooked up as an anti dated document and that is the reason why the person who was born two years after the date of constitution of the said partnership was also seen admitted as a partner in the said partnership deed. It has come out that large scale cheating had taken place. At the same time, the petitioners are not liable to be proceeded against, for any criminal liability in the matter. As per Section 30(3) of the Indian Partnership Act, a minor who is admitted as a partner is not personally liable, for any liability or any acts of the firm, which cause any liability. Matters being so, the Crl.M.C.No. 224 o”
5. proceedings against the petitioners in C.C.No.37/2007 of the Judicial First Class Magistrate's Court, Paravoor are only to be quashed, and I do so. In the result, this Crl.M.C is allowed by quashing the proceedings against the petitioners in C.C.No.37/2007 of the Judicial First Class Magistrate's Court, Paravoor. It is made clear that this order will not stand in the way in proceeding with the complaint against the other partners. Sd/- B. KEMAL PASHA, JUDGE AV /True Copy/ P.A to Judge