Kerala High Court
Jayapal vs The State Of Kerala on 7 November, 2024
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:83012
CRL.MC NO. 1732 OF 2019
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY,THE 7TH DAY OF NOVEMBER 2024 / 16TH KARTHIKA, 1946
CRL.MC NO. 1732 OF 2019
CRIME NO.697/2014 OF Anchal Police Station, Kollam
CC NO.1414/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II
(FOREST OFFENCES),PUNALUR
PETITIONERS/ACCUSED 1 & 2:
1 JAYAPAL
AGED 34 YEARS, S/O.MUTHUSWAMY,
ABT PARCEL SERVICE BUILDING FOR RENT,
MUTHUPALAYAM, SANKARANDAPALAYAM POST,
DARMAPURAM TALUK, TAMIL NADU STATE.
2 SELVAKUMAR
AGED 28 YEARS, S/O.SAKTHIVEL,
RESIDING AT ABT PARCEL SERVICE BUILDING,
MARKET JUNCTION FOR RENT, MURUKOOR,
VATTAKAPPADI POST, DARMAPURAM TALUK,
TAMIL NADU STATE.
BY ADVS. K.S.BHARATHAN
SRI.ABEL ANTONY
SMT.SITHARA
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
07.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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CRL.MC NO. 1732 OF 2019
2
P.V.KUNHIKRISHNAN, J.
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Crl.M.C. No.1732 of 2019
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Dated this the 07th day of November, 2024
ORDER
Petitioners are the accused in C.C.No.1414/2016 on the
file of the Judicial First Class Magistrate Court-II, Punalur. The
above case is charge-sheeted against the petitioners alleging
offences punishable under Section 420 of the Indian Penal Code
and Sections 3 and 4 read with Section 17 of the Money
Lenders Act, 1958 (for short, Act 1958).
2. The prosecution case is that, on 18.05.2014, the Sub
Inspector of Police, Anchal, along with Police officials, while
making enquiries with regard to the cases involving the illegal
lending of money as contemplated under Act 1958, found the
petitioners travelling in a motorcycle bearing Reg. No. TN-56/Z-
5178. The Police officials immediately stopped the vehicle of
the petitioners and enquired about the same. They found a
dairy along with the petitioners and recovered an amount of
Rs.16,655/- from the box of the said vehicle. The petitioners
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CRL.MC NO. 1732 OF 2019
were immediately arrested by the Sub Inspector of Police,
Anchal and the dairy, cash as well as the vehicle were seized by
the Police. Thereafter, Annexure-A1 First Information Report
was registered. Subsequently after investigation, the final
report is filed as evident by Annexure-A2. According to the
petitioners, even if the entire allegations are accepted, no
offence is made out.
3. Heard Adv. Sithara, representing Adv.K.S.Bharathan,
the learned counsel for the petitioner and the learned Public
Prosecutor.
4. The counsel for the petitioners submitted that even if
the entire allegations are accepted, no offence is made out
against the petitioners. The counsel takes me through the final
report and submitted that there is no allegation against the
individual petitioners about the offence alleged. It is also
submitted that there are no victims in this case and the case is
suo motu registered. The counsel also submitted that simply
because a diary and some amount is seized from the possession
of the petitioners, that will not attract the offence under Act
1958. Hence it is submitted the continuation of prosecution is
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not necessary. The Public Prosecutor submitted that the
contentions raised by the petitioners are to be raised before the
trial court at the appropriate stage. Prima facie there are
materials to show that the petitioners committed offence
especially because huge amount and diary are seized is the
submission of the petitioner.
5. This Court considered the contentions of the
petitioners and the Public Prosecutor. This Court perused the
final report. It will be better to extract the relevant portion of
the final report:
"പ്രതികൾക്ക് അമിത പലിശയ്ക്ക് പണം കടം കൊടുത്ത്
ഇടപാടുകാരെ വിശ്വാസവഞ്ചന ചെയ്ത് ചതിക്കണമെന്നുള്ള
ഉദ്ദേശത്തോടും കരുതലോടുംകൂടി പ്രതികൾ TN-56/Z-5187 നമ്പർ
മോട്ടോർസൈക്കിളിൽ സഞ്ചരിച്ച് പണപ്പിരിവ് നടത്തി കൈവശം
കണക്കുകൾ എഴുതിയ ഡയറിയും 16655/- രൂപയും കൈവശം
സൂക്ഷിച്ചു വരുന്നതിന് 18.05.14 15.15 മണിക്ക് അഞ്ചൽ
വില്ലേജിൽ തഴമേൽ മുറിയിൽ ഞാറക്കാട്ട് എന്ന സ്ഥലത്ത് വെച്ച്
വാദിമുതൽ പേരാൽ കാണപ്പെട്ട് മേൽ വകുപ്പുകൾ പ്രകാരമുള്ള
കുറ്റം ചെയ്തിരിക്കുന്നു എന്നുള്ളത് "
6. A perusal of the above would show that the
allegation against the petitioners is that they were found in a
motorcycle with an amount of Rs.16,655/- and a diary.
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Admittedly there is no victim in this case and the case is
registered suo motu based on the search and seizure of the
above articles. In such circumstances whether the offence
alleged is attracted is the question to be decided. This Court in
V.V. Kurian v. Leelamma Sebastian [2015 SCC OnLine Ker
31293] observed that a solitary instance of money lending will
not attract the offence. It will be better to extract the relevant
portion of that judgment:
"3. The final report does not show that the
petitioner herein is a money lender as defined
under the law, or that money lending is his main or
subsidiary occupation. On a particular occasion,
the 1 st respondent happened to borrow Rs.5
Lakhs from the petitioner, and when she failed to
return the amount, the petitioner brought a
prosecution against her under Section 138 of the
N.I.Act. He brought such prosecution when the
cheque issued by the 1 st respondent was bounced
due to insufficiently of funds. The 1 st respondent
faced the said prosecution for months, and till the
last day of judgment, she did not think of filing a
complaint against the petitioner. Much thought is
not required to suspect the truth of the complaint.
The petitioner's case that the prosecution is a
counterblast to the prosecution brought against
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the defacto complainant under Section 138 of the
N.I.Act, can be accepted without any hesitation.
She was given notice in this proceedings. But she
opted to remain absent. There is reason to believe
that she is not interested in the prosecution, or
that she knows what will ultimately happen, if the
prosecution proceeds under the Kerala Money
Lenders Act.
4. I find that the petitioner herein cannot be said
to be a money lender as defined under the law,
and he cannot be prosecuted under the Kerala
Money Lenders Act, just because he happened to
lend an amount of Rs.5 Lakhs on one occasion to
the defacto complainant. It appears that this has
been the trend in Kerala, that even on a complaint
alleging just one instance of money lending as part
of a private affair between individuals, the police
would register crime under the Kerala Money
Lenders Act, and without obtaining any advice
from anybody, the police would mechanically
submit final report under the Kerala Money
Lenders Act. This will have consequences, and
such a prosecution where the accused will not
satisfy the definition of "money lender" under the
law, will definitely amount to abuse of legal
process."
7. Again, this Court in Stephen v. State of Kerala
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CRL.MC NO. 1732 OF 2019
[2017 SCC OnLine Ker 5717] considered the same question
after relying on the decision in V.V.Kurian's case (supra). The
relevant portion of the that judgment is extracted hereunder:
"3. Proceeding is challenged by the petitioner
herein contending that the provisions under the
money lenders Act is not applicable to him and he
was not involved in the activity of money lending.
To buttress the argument, the learned counsel for
the petitioner relied on the decision reported in
[Kurian V.V Vs Leelamma Sebastian and
Another (2005(4) KLT 476)], wherein this court
has held that mere money lending even, if proved
as a casual instance cannot lead to a conclusion
that the person was engaged in money lending, as
defined under the Money Lenders Act. The final
report laid in this case indicates that the case was
charge suo motu on the basis of the personal
apprehension of the detecting officer that the
petitioner herein was engaged in money lending.
The version of CW1 and CW2 clearly show that
they have only seen the accused standing on the
road side. He was questioned whether he was
holding any licence for money lending to which he
replied in the negative. On the basis of an
influence that he was engaged in money lending,
crime was registered. Evidently there is no
material to show that he was actually engaged in
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money lending business. It has been consistently
laid by this court that even sporadic instance of
money lending cannot lead to an offence under the
Money Lenders Act. In this case there is only mere
suspicion which cannot stand the test of law.
Evidently a successful prosecution is not possible
on the basis of this evidence which is sought to be
marshalled by the prosecution. Having considered
this fact, I am satisfied that Section 482 Cr.P.C is
liable to be invoked." [underline supplied]
8. In the light of the above principle, this Court perused
the final report. Except the seizure of the amount and the diary,
there are no other materials produced by the prosecution to
prove the case. I am of the considered opinion that in the light
of the above principle laid down by this Court, continuation of
prosecution against the petitioners are not necessary.
Therefore, this criminal miscellaneous case is allowed. All
further proceedings against the petitioners in
C.C.No.1414/2016 on the file of the Judicial First Class
Magistrate Court-II, Punalur, are quashed.
sd/-
P.V.KUNHIKRISHNAN
JV JUDGE
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CRL.MC NO. 1732 OF 2019
PETITIONER ANNEXURES
ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION
REPORT ALONG WITH SCENE MAHAZAR
PREPARED BY THE SUB INSPECTOR OF
POLICE, ANCHAL POLICE STATION AS FIR
NO.697 OF 2014 DATED 18.5.2014.
ANNEXURE A2 TRUE COPY OF THE FINAL REPORT DATED
19.5.2018 PRODUCED BEFORE THE HON'BLE
JUDICIAL FIRST CLASS MAGISTRATE COURT-
I, PUNALUR AND LATER TRANSFERRED TO
JUDICIAL FIRST CLASS MAGISTRATE COURT-
II, PUNALUR.
