The Merchants Association Cherthala vs State Of Kerala
2024 Latest Caselaw 4435 Ker

Kerala High Court

The Merchants Association Cherthala vs State Of Kerala on 6 February, 2024

Author: Devan Ramachandran

Bench: Devan Ramachandran

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN
     TUESDAY, THE 6TH DAY OF FEBRUARY 2024 / 17TH MAGHA, 1945
                      WP(C) NO. 1355 OF 2023
PETITIONERS:
     1     THE MERCHANTS ASSOCIATION CHERTHALA
           REGISTRATION NO.ALP/TC/461/22, BUILDING NO.8/80,
           CHERTHALA P.O., ALAPPUZHA, REPRESENTED BY ITS
           SECRETARY, PIN - 688524
     2     SINIL KUMAR E.K.
           AGED 47 YEARS,
           S/O.V.N.KUNJAPPAN, SECRETARY,
           THE MERCHANTS ASSOCIATION CHERTHALA,
           KANNIKATTU VEETTIL, MARUTHORAVATTAM P.O.,
           CHERTHALA TALUK, ALAPPUZHA, PIN - 688539
           BY ADVS.
           C.R.SYAMKUMAR
           HELEN P.A.
           RENOY VINCENT
           SHAHIR SHOWKATH ALI
RESPONDENTS:
     1     STATE OF KERALA
           REPRESENTED BY ITS HOME SECRETARY, SECRETARIAT,
           THIRUVANANTHAPURAM, PIN - 695001
     2     HOME SECRETARY
           SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
     3     DISTRICT POLICE CHIEF
           CCSB ROAD, CIVIL STATION WARD, ALAPPUZHA,
           PIN - 688012
     4     DEPUTY SUPERINTENDENT OF POLICE
           CHERTHALA, ALAPPUZHA - 688524.
     5     SABULAL K.V
           CMC 34, CHERTHALA P.O., CHERTHALA TALUK, ALAPPUZHA,
           PIN - 688524
     6     BHASI B., MATTAVANA, CMC 23, CHERTHALA P.O.,
           CHERTHALA TALUK, ALAPPUZHA, PIN - 688524
           BY ADVS.
           PUBLIC PROSECUTOR
           T.JAYAKRISHNAN
           R.KRISHNAKUMAR (CHERTHALA)(K/1680/2000)
           K.R.RANJITH, GOVERNMENT PLEADER WITH STATE ATTORNEY()
           SRI. K.R.RANJITH, SPL. GP.,
           SMT. SRADHA MOHAN, FOR R4 & R5
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 1355 OF 2023             2

                             JUDGMENT

The petitioners seek a direction to respondent No.2 to consider

and pass orders on Ext.P7 complaint preferred by them against

respondents 5 and 6, containing the allegation that the latter is

conducting an unregulated Deposit Scheme, under the aegis of an

unregistered Association called the Merchants Association. They assert

that the actions of respondents 5 and 6 come within the ambit of the

prohibited activities as per the Banning of Unregulated Deposit

Schemes Act, 2019 ('BUDS Act'); and therefore, that the 2 nd

respondent is obligated to consider Ext.P7 and take necessary action

thereon as per law.

2. The afore submissions of the petitioners, as made by their

learned counsel - Sri.Renoy Vincent, however, were opposed by

Sri.Ranjith K.R. - learned Special Government Pleader, saying that this

writ petition may not be now maintainable because, as is evident from

Ext.P13 produced by the petitioners themselves, they have already

approached the learned Magistrate through a private complaint, which

has been taken cognizance of by it and the Police directed to

investigate. He submitted that, therefore, normally, in such cases, the

2nd respondent cannot intervene; but added that if this Court is still

inclined to direct him to consider Ext.P7 on its merits, including on the

question of its maintainability, there is no legal impediment in doing

so.

3. Learned counsel appearing for respondents 5 and 6 -

Smt.Sradha Mohan, submitted that her clients have nothing to hide

and that they are willing to abide by and co-operate with any

directions or investigation to be ordered by any competent Court or

the Police. She submitted that, therefore, if this Court is inclined to

direct the 2nd respondent to consider Ext.P7, then it may be allowed to

be done only after affording her clients also an opportunity of being

heard.

4. When I evaluate and consider the afore submissions, prima

facie, there is a valid question as to whether, after the learned

Magistrate has taken cognizance of a private complaint by the

petitioners, any further action can be taken forward independently by

the 2nd respondent. However, this is a matter that the said Authority

can certainly consider, while deciding Ext.P7 complaint of the

petitioners; and since the learned Special Government Pleader agrees

to do so, subject to the question of its maintainability, I am certain that

this Court will be justified in directing the said Authority to consider

the same.

In the afore circumstances, I allow this writ petition, to the

limited extent of directing the 2nd respondent to take up Ext.P7

complaint of the petitioners and dispose of the same, after hearing

them, as also respondents 5 and 6; thus culminating in an appropriate

order and necessary action thereon, as expeditiously as is possible, but

not later than one month from the date of receipt of a copy of this

judgment.

I, however, make it clear that since I have not entered into the

merits of any of the rival contentions, every question, including as to

whether the 2nd respondent is competent to decide Ext.P7 at this point

after the private complaint has been registered, are left open to be

decided by the said Authority, while the afore exercise is completed.

Sd/-

DEVAN RAMACHANDRAN

JUDGE MC/7.2

APPENDIX OF WP(C) 1355/2023

PETITIONER EXHIBITS Exhibit-P1 THE TRUE COPY OF THE CERTIFICATE OF REGISTRATION ISSUED TO THE PETITIONER NO.1 DATED 17.11.2022 Exhibit-P2 THE TRUE COPY OF THE RTI APPLICATION SUBMITTED BY MR. HARISH T.G. DATED 21.10.2022 Exhibit-P3 THE TRUE COPY OF THE RTI REPLY RECEIVED BY MR. HARISH T.G. DATED 19.11.2022 Exhibit-P4 THE TRUE COPY OF THE RECEIPT NO. 1725 ISSUED BY 'THE MERCHANTS ASSOCIATION,DATED 21.10.2022' Exhibit-P4(a) THE TRUE COPY OF THE RECEIPT NO.1481 DATED 19.1.2022 ISSUED BY 'THE MERCHANTS ASSOCIATION' Exhibit-P5 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER NO.2 BEFORE THE RESPONDENT NO.4 DATED 15.12.2022 Exhibit-P6 THE TRUE COPY OF THE RECEIPT NO.3070/P1- 652/22/SSD DATED 15.12.2022 ISSUED TO THE PETITIONER NO.2 Exhibit-P7 THE TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER NO.1 BEFORE THE RESPONDENT NO.2 DATED 24.12.2022 Exhibit-P8 THE TRUE COPY OF THE ACKNOWLEDGMENT CARD RECEIVED BY THE PETITIONER NO.2 Exhibit P9 The certified copy of a letter issued from the office of the Registrar of Societies dated 8.3.2023 Exhibit P10 True copy of the gazette notification dated 08.03.1977 Exhibit P11 The true copy of the loan application form issued by 'The Merchants Association' Exhibit P12 Ttrue copy of the details of remittances made before the 'The Merchants Association' Exhibit P13 THE TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER NO.2 BEFORE THE JFCM - I, CHERTHALA PENDING AS C.C. NO.1682/2023 Exhibit P14 THE TRUE COPY OF THE PRINTOUT OF THE PROCEEDINGS IN C.C. NO.1682/2023 TAKEN FROM THE E-COURTS WEBSITE RESPONDENT EXHIBITS Exhibit R5(a) A true copy of plaint dtd. 20-10-2022 in

O.S No 545/2022 on the files of Munsiffs Court Cherthala Exhibit R5(b) A true copy of plaint dtd. 24-11-2022 in O.S No 614/2022 on the files of Munsiffs Court Cherthala Exhibit R5(c) A true copy of Certificate of Registration of Societies to The Merchants Association Cherthala Reg.No.S.45/71 dtd. 5-10-1971