M V BANY Vs. STATE

JUDGEMENT

(1.) These to Criminal Miscellaneous petitions are filed under S.482 Cr. P.C. to quash the proceedings in C.C. 3664 of 1985 on the file of the II Metropolitan Magistrate, Madras. The first accused is the petitioner in Cr. M.P., 5389 of 1985 while the second accused is the petitioner in Cr. M.P. 5387 of 1985.

(2.) The brief facts of the case are these : The second accused M.V. Baby (petitioner in Cr. M.P. 5387 of 1985), M.C. Kuriakose, and Lalu Alex joined together and constituted a firm by and under the name of Kopanhagan Pharmaceuticals with its registered office at Pushpanagar, Madras 34. On a complaint given by M. C. Kuriakose, one of the partners, the respondent Sub Inspector, Central Crime Branch, has filed a charge sheet against these two petitioners for offences under S.408 and S.408 read with S.34, I.P.C. The allegation is that these two accused in furtherance of their common intention the first accused (petitioner in Cr. M.P. 5389 of 1985) being a clerk employed in the partnership firm and the second accused (petitioner in Cr. M.P. 5387 of 1985) being the managing partner of the said firm dishonestly converted the properties entrusted with them for their personal gain by lifting the goods without the knowledge of the other partners to the shop of the second accused at Piravan, Ernakulam Dt., Kerala, by booking the consignments in their names and made themselves liable for offences punishable under S.408. I.P.C. by the first accused and S.408 read with Sec. 34, I.P.C. by the second accused. The charge sheet has been taken of file by the II Metropolitan Magistrate, Madras and numbered as C.C. 3664 of 1985. It is to quash these proceedings the two accused have filed these petitions.

(3.) The second accused (petitioner in Cr. M.P. 5387 of 1985) is admittedly the Managing partner of the firm Kopanhagan Pharmaceuticals. It is his case that the other two partners, viz., M.C. Kuriakose and Lalu Alex did not bring in sufficient funds for the running of the business and it was the second accused who invested large funds from his own resources and that the two other partners did not take any interest in the aforesaid partnership firm and virtually abandoned the business. The second accused, therefore, decided to close down the business. At his request, the first accused who was an employee of the firm disposed of some of the stock and the unsold stock was invoiced to the second accused's pharmacy at Piravan. In or about April 1983, all the three partners met and looked into the accounts and it was found that the other two partners M.C. Kuriakose and Lala Alex were liable to pay to the second accused Rs. 16000 each. Instead of paying the amount tax Mr. M.C. Kuriakose has given the criminal complaint. It is also averred by the second accused that the two other partners have also filed suit on the file of the Sub Court, Ernakulam in O.S. 614 and 615 of 1983 for rendition of accounts against the second accused. The car of the second accused has also been attached before judgment and on furnishing bank guarantee the accused has taken delivery of the vehicle. It is therefore contended by both the accused that there is no case for criminal breach of trust.