Kerala High Court
Kuttisankara Gupthan vs State Of Kerala on 2 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
TUESDAY, THE 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
CRL.MC NO. 3000 OF 2021
C.M.P. NO. 491/2019 IN C.C. NO. 1027/2016 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT - I, OTTAPALAM, PALAKKAD
CR.R.P. NO. 49/2019 OF ADDITIONAL SESSIONS COURT - IV, PALAKKAD
PETITIONERS/REVISION PETITIONERS/ACCUSED 1 AND 2:
1 KUTTISANKARA GUPTHAN,
AGED 72 YEARS
S/O. APPU GUPTHAN,
VALAPPILTHODI HOUSE,
VAYILLAMKUNNU,
KADAMPAZHIPURAM,
OTTAPALAM TALUK,
PALAKKAD DISTRICT.
2 SREEKANTH,
AGED 38 YEARS,
S/O. KUTTISANKARA GUPTHAN,
VALAPPILTHODI HOUSE,
VAYILLAMKUNNU,
KADAMPAZHIPURAM,
OTTAPALAM TALUK,
PALAKKAD DISTRICT.
BY ADVS.RAJESH SIVARAMANKUTTY
K.VIJINA
ARUL MURALIDHARAN
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682031.
2 GOPALAKRISHNAN,
AGED 53 YEARS,
MANAPATTIL VEEDU AZHIYANNUR,
KADAMPAZHIPURAM,
OTTAPALAM TALUK,
PALAKKAD DISTRICT-678632.
Crl.M.C.No.3000 OF 2021 2
R1 BY SRI. RENJITH T.R.,SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
28.09.2021, THE COURT ON 02.11.2021 PASSED THE FOLLOWING:
Crl.M.C.No.3000 OF 2021 3
ORDER
This is a petition filed under Section 482 of the Code of
Criminal Procedure challenging the correctness of the Annexures G
and H orders of the learned Judicial First Class Magistrate Court -
I, Ottapalam and also the learned Additional Sessions Judge - IV,
Palakkad. Petitioners are accused in C.C. 1027/2016 on the file of
the Judicial First Class Magistrate Court - I, Ottapalam which arose
from the final report in Crime No. 443/2014 of Sreekrishnapuram
police station. That crime was registered on the basis of the
complaint preferred by the second respondent before court which
was forwarded to the police for registering the crime and on
conclusion of investigation, charge sheet was laid before the court
alleging offence under Sections 3 read with 17 and 18A (6A) of the
Kerala Money Lenders Act, 1958 hereinafter referred to as the
KML Act and under Sections 3 read with 9(a) of the Kerala
Prohibition of Charging Exorbitant Interest Act, 2012 hereinafter
referred to as the Prohibition Act. The substance of the allegation is
that on 10.05.2011, the second respondent had availed a loan of
Rs. 30,000/- from the petitioners who are registered money lenders.
At that time, they obtained signed blank cheque of the Canara bank
bearing No. 029481 besides signed blank stamp paper for
Rs.50/- and two signed blank papers with revenue stamps from
them as security. Thereafter, he obtained Rs. 20,000 and Rs.
15,000/-, thus total loan availed was Rs. 65,000/-. Rs. 6,500/- was
being collected from him as interest. Even though on 16.11.2012,
the entire sum of Rs. 65,000/- was repaid, the petitioners/accused
failed to return the security documents and blank papers obtained
from him. He was told that the documents are kept in the locker.
That gave him a cause of action for preferring the complaint and
thus the crime was registered alleging the above said offences.
2. Pursuant to the summons, the accused persons entered
appearance before the trial court and moved a petition under
Section 239 of the Cr.P.C. for discharging them. By Annexure G
order dated 16.09.2019, the learned Magistrate though held them
not answerable of offences under the KML Act, found that there are
reasons to proceed against them under the Prohibition Act and thus
the petition for discharge was allowed only in part. Aggrieved by
the same, the petitioners preferred a revision before the Sessions
Court, but by Annexure H order that revision was dismissed and
now the petitioners have moved this Court under Section 482 of the
Code of Criminal Procedure for quashing the proceedings.
3. I heard the learned counsel for the petitioners and the
learned Senior Public Prosecutor. Even though notice was served
on the second respondent, he chose not to contest.
4. The learned counsel for the petitioners advanced mainly
three arguments before this Court. Firstly, even though he had
raised various contentions, which would support his argument that
the allegations are totally unfounded, the court did not consider the
same. In this connection, he also invited me to Annexure A
complaint preferred by the second petitioner before Judicial First
Class Magistrate, Ottapalam on the basis of which S.T. No.
2507/2013 was registered against the second respondent. That was
a complaint alleging offence under Section 138 of the Negotiable
Instruments Act. By Annexure B judgment of the trial court, the
second respondent was found guilty of offence under Section 138
of the Negotiable Instruments Act and convicted him. Against that
finding, even though an appeal was preferred that was dismissed by
Annexure C judgment of the Sessions Court, Palakkad. According
to the learned counsel, that was the provocation in initiating an
unfounded proceedings against the petitioners. According to him,
such material documents were not considered by the trial court.
Secondly, he argued that when they are discharged under the KML
Act, as a necessary corollary, the courts should not have decided to
proceed against them under the Prohibition Act, which does not
have independent existence. Thirdly, as already noticed, he said that
the crime was registered after 14 months of the alleged cause of
action, which is fatal to the prosecution.
5. On the other hand, learned Senior Public Prosecutor
submitted that the correctness of the allegations of the parties can
be considered only at the time of trial, at the threshold itself is not
justifiable that the petitioners be given an exoneration.
6. I have already noticed the precise allegation against the
petitioners who are admittedly money lenders. In Annexure G
order, the learned Magistrate found that they are money lenders,
they are holding valid licences issued by the authorities for doing
business in money lending; even though it was stated in the
complaint that stamped and signed blank papers were allegedly
obtained from the second respondent, that were not produced, so
that the allegation under the KML Act was found not sustainable.
On that basis, that part of the petition for discharge was allowed.
However, on the allegation that the petitioners had realized
exorbitant interest from the second respondent, which is a matter of
evidence, the court held that he has to face trial for the same. Such
a finding was not disturbed by the revision court also.
7. I shall consider the arguments raised by the learned
counsel for the petitioners. The main argument is that the
documents produced by them were not considered by the trial
court, at the time of considering the petition under Section 239 of
the Code of Criminal Procedure. In fact, I cannot uphold the
contention or find fault with the learned Magistrate for not giving a
complete exoneration to the petitioners. Section 239 of the Cr.P.C.
is very specific and clear. An order of discharge can be passed after
considering the police report and the documents sent with it under
Section 173 of the Cr.P.C. and making such examination, if any and
after giving the prosecution and the accused an opportunity of
being heard; then, if the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused and record
the reasons for doing it. It is stated in umpteen number of decisions
that the expression 'groundless' occurring in Section 239 of the
Cr.P.C. means that no reasonable person can come to the conclusion
that there was any ground whatsoever to sustain the charge against
the accused. The Magistrate cannot disbelieve the evidence at the
stage of considering whether he should discharge the accused by
elaborate and painstaking examination of the evidence. Order of
discharge after such elaborate examination is in excess of
jurisdiction and that cannot be accepted. (Bipat Gope and Others
v. State of Bihar [AIR 1962 (SC) 1195]).
8. Similarly, it is the consistent stand of the courts that to
hold a charge groundless, there should be no iota of evidence or the
evidence should be contraindicate the offence or there should be
other fundamental error in assuming congnizance. It is also the
settled proposition that the final report and documents relied on by
the prosecution alone can be looked into for the purpose of
considering the prima facie or otherwise of the allegations against
the accused persons. In other words, documents produced by the
accused to say that he is innocent or that charge may not be
considered is totally alien and cannot be acted upon in a petition
under Section 239 of the Cr.P.C. In discharging the accused under
Section 239 of the Cr.P.C., the Magistrate is not entitled to consider
the statement of persons forming no part of the police charge nor he
is entitled to consider the statement of the accused in the case diary
without examining the accused. That means, Annexures A to C
documents do not have any bearing in a petition under Section 239
of the Cr.P.C. Therefore, there is no substance in the contention of
the learned counsel that the trial court did not consider the
documents relied on by the petitioners.
9. Of course, it has come out that the alleged incident had
happened between 10.05.2011 and 16.11.2012, but the FIR was
lodged only on 12.07.2014. By the time, Annexure A complaint
was preferred before the trial court and law was set in motion
against the second respondent. At the same time, such an aspect of
delay cannot be considered by this Court at this stage.
10. The most important aspect buttressed by the learned
counsel for the petitioners is that the Prohibition Act does not have
independent existence dehors the KML Act. It is true that Section
2(c) of the Prohibition Act defines exorbitant interest as interest at
the rate more than the rate specified in Sub-section (1) of Section 7
of the KML Act etc. At the same time, the argument of the learned
counsel that it has no independent existence cannot be accepted in
right earnest. If the argument of the learned counsel is accepted, it
would suggest that no case will sustain against a registered money
lender, under the Prohibition Act. It would create very embarrassing
and anomalous situation; that is not the intention of the legislature.
If a money lender resorts to unhealthy practices and realises
exorbitant interest as defined under the Prohibition Act or under the
KML Act, if that argument is allowed to sustain, he will be liable to
be let scot free without attaching the penal provisions.
11. As rightly pointed out by learned Public Prosecutor, it
is essentially a matter of evidence whether the petitioners had
realised huge interest from the second respondent who had
borrowed money from the petitioners. If exorbitant interests were
realized, that would necessarily attract offence under the provisions
of the Prohibition Act. Even though both the statutes are
complementary, penal provisions under the Prohibition Act have
independent existence. The learned counsel also could not bring to
me any authority which entitle them to get a total discharge under
the Prohibition Act, merely for the reason that prima facie case was
not made out against them under the KML Act.
12. It is essentially a matter of evidence whether the
petitioners had realized exorbitant interest from the second
respondent. The statements supporting the charge sheet recorded
under Section 161 of the Cr.P.C. show that there are independent
materials to say that the petitioners had realised Rs. 6,500/-, which
is estimated to be at the rate of 120% interest from the second
respondent. Correctness of such statements have to be weighed
only at the time of trial and this Court is not expected to conduct a
parallel trial or embark upon an enquiry now.
Therefore, the Crl. M.C. lacks merit and is liable to be
dismissed. Dismissed.
SD/-
K.HARIPAL
JUDGE
DCS/30.10.2021
APPENDIX
PETITIONER'S ANNEXURE
ANNEXURE A TRUE COPY OF THE COMPLAINT NUMBERED AS S.T.
NO.2507/2013 BEFORE JUDICIAL FIRST CLASS
MAGISTRATE, OTTAPALAM FILED BY 2ND
PETITIONER AGAINST 2ND RESPONDENT.
ANNEXURE B TRUE COPY OF THE JUDGMENT DATED 19/12/2015
IN S.T. NO.2507 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE - I, OTTAPALAM.
ANNEXURE C TRUE COPY OF THE RELEVANT PAGES OF THE
JUDGMENT DATED 30/11/2017 IN CRL. APPEAL
NO. 10/2016 PASSED BY THE ADDITIONAL
SESSIONS COURT-IV, PALAKKAD.
ANNEXURE D TRUE COPY OF THE FIRST INFORMATION REPORT
IN CRIME NO.443/2014 OF SREEKRISHNAPURAM
POLICE STATION, DATED 12/07/2014.
ANNEXURE E TRUE COPY OF THE FINAL REPORT TAKEN ON FILE
AS CC NO.1027/2016 ON THE FILES OF JUDICIAL
FIRST CLASS MAGISTRATE, OTTAPALAM.
ANNEXURE F TRUE COPIES OF THE LICENSE ISSUED TO THE
PETITIONERS AND RENEWED FROM TIME TO TIME
AND HAVING VALIDITY TILL 31/03/2018.
ANNEXURE G CERTIFIED COPY OF THE ORDER DATED
16/09/2019 IN CMP NO.491/2019 IN CC
NO.1027/2016 PASSED BY THE JUDICIAL
MAGISTRATE OF FIRST CLASS-I, OTTAPALAM.
ANNEXURE H CERTIFIED COPY OF THE ORDER DATED
26/04/2021 IN CRIMINAL REVISION PETITION
NO.49/2019 PASSED BY THE LEARNED ADDITIONAL
SESSIONS JUDGE-IV, PALAKKAD.
