K. Ibrahim Haji v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 7[TH] DAY OF DECEMBER 2021 / 16TH AGRAHAYANA, 1943 CRL.REV.PET NO. 528 OF 2021** **CRL. M.P. NO. 2147/2021 IN C.C. NO. 268/2014 OF THE CHIEF JUDICIAL** ## **MAGISTRATE COURT, THALASSERY** ## **REVISION PETITIONER/ACCUSED:** **K.IBRAHIM HAJI, AGED 81 YEARS S/O.MAMMED HAJI, SALEENA NIVAS, KADAVATHUR P.O., THALASSERY TALUK, KANNUR-670 676.** **BY ADV. PRANOY K.KOTTARAM** ## **RESPONDENTS/STATE:** **STATE OF KERALA, SUB INSPECTOR OF POLICE, KULAVALLUR POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. M.C.ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON 07.12.2021 DELIVERED THE FOLLOWING:** Crl.R.P.No.528 OF 2021 2 ## **ORDER** This is a revision filed under Sections 397 and 401 of the Code of Criminal Procedure seeking to set aside the order dated 17.08.2021 in Crl.M.P. No. 2147/2021 in C.C. No. 268/2014 on the file of the Chief Judicial Magistrate’s Court, Thalassery. Crime No. 449/2013 of Kulavallur police station in Kannur district was registered through suo motu, on the basis of a complaint given by one P.P. Ammed, who is CW2 in the final report. He had alleged that the accused, without obtaining the license under the Money lenders Act is engaged in money lending business and used to extract huge interest from the borrowers. On that basis the crime was registered and after conclusion of investigation, charge sheet was laid before the Chief Judicial Magistrate’s Court, Thalasserry. Earlier the petitioner had moved this Court under Section 482 of the Cr.P.C., Crl.M.C. 2232/2014 seeking to quash the entire final report. But by order dated 19.03.2021, the Crl.M.C. was Crl.R.P.No.528 OF 2021 3 dismissed by this Court. Then he moved a petition seeking to discharge him under Section 239 of the Cr.P.C. and by Annexure A6 order dated 17.08.2021, that petition stands dismissed and aggrieved by the same, the petitioner has moved this Court. 2. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. 3. The learned counsel for the petitioner submitted that the petitioner is not a money lender as defined under Section 2(7) of the Kerala Money Lenders Act. In fact, the defacto complainant, P.P. Ammed had borrowed an amount of Rs. 4,00,000 from him after executing an agreement and also after issuing two cheques. When the cheques were bounced, the petitioner had preferred complaint before court under Section 138 of the Negotiable Instruments Act. The trial court had convicted him and appeal preferred against that conviction was also confirmed and this complaint was preferred as a counterblast for defeating his action against the defacto Crl.R.P.No.528 OF 2021 4 complainant. According to learned counsel, the charge sheet was laid as part of the Kubera operation of the police. The alleged transaction had taken place in 2010 and so far the matter is not concluded. The petitioner is an 81 year old person. 4. On the other hand, the learned Public Prosecutor has opposed the application for quashing Annexure A6. According to him, the police could seize from his possession large number of documents which indicate that he was engaged in the business of money lending and was collecting exorbitant interest and therefore, the petition for discharging has been rightly dismissed by the trial court and the order does not warrant interference in revision. 5. As adverted to earlier, the petitioner had moved this court for quashing the entire proceedings but could not get a favourable order. Then he moved application under Section 239 of the Cr.P.C. for discharging him which also found against him and that was how he reached this Court with this revision. The learned counsel for the petitioner, relying on the decisions Crl.R.P.No.528 OF 2021 5 in **Jayachandrakurup v. State of Kerala [2018 (3) KLT 455]** and **Kurian v. Leelamma Sebastian [2015 (4) KLT 476]** submitted that he is not a money lender and some occasional lending of money to some neighbours and then seeking to get back the money will not attract offence under the provisions of the Money Lenders Act and therefore, he cannot be prosecuted. The counsel also submitted that the defacto complainant was convicted by the trial court which stands confirmed in appeal and then only he had moved the complaint, only as a counter blast for troubling the petitioner. 6. When a petition under Section 239 of the Cr.P.C. is filed the most vital consideration is whether the charge against the accused is groundless. If only the charge is found groundless, an accused is entitled to be discharged under Section 239 of the Cr.P.C. The expression ‘groundless’ occurring in Section 239 of the Cr.P.C. means, it is settled, that no reasonable person can come to the conclusion that there was any ground whatsoever to sustain the charge against the Crl.R.P.No.528 OF 2021 6 accused. At this stage, the Magistrate cannot disbelieve the evidence produced by the prosecution. A charge can be said to be when the materials furnished entice no groundless reasonable basis or foundation to support the accusation against the accused. 7. What is important to be considered when an application under Section 239 Cr.P.C. is filed is whether a prima facie case is made out on the police report. If prima facie materials are there, the court is justified in framing charge. Similarly, it is also the settled proposition of law that in discharging the accused under Section 239 of the Cr.P.C, Magistrate is not entitled to consider the statement of person forming no part of police challan or documents which are highlighted by the accused. Here the petitioner wants to say that, it is a counter blast of the proceedings initiated against the defacto complainant by him that has already ended in conviction. That may be correct. But Annexure A1 order indicates that there were material evidences to support the Crl.R.P.No.528 OF 2021 7 ## prosecution allegation. 8. At this stage, while this Court sitting in revision, the court is expected to go into the legality, propriety and correctness of the order passed by the learned Magistrate. While considering the application for discharge, the learned Magistrate has taken into consideration the search conducted by the Investigating Officer after the registration of crime. The police had searched the house of the petitioner on 23.06.2013 and found the following documents in his house:- 1. A blank stamp paper of Rs. 100/- denomination signed by one Savithri K.K., Punnol; 2. A blank stamp paper of Rs. 100/- denomination signed by one P.K. Nanu Pullukkara; 3. A white paper affixed with a one rupee revenue stamp and signed by P.K. Nanu; 4. Two blank signed cheques issued from Villiappalli Panchayath Service Co-operative Bank; 5. Two blank signed cheques issued from account No.1734 of Kodiyeri Service Co-operative Bank Limited; 6. One blank signed cheque issued from the Vaisya Bank, Vadakara; 7. One cheque book containing signed and written Crl.R.P.No.528 OF 2021 8 cheques issued, from the account of Maharoof maintained with State Bank of Travancore, Peringathur Branch, in the name of the accused for various amounts; 8. One cheque book of P.P. Ammed in account No. 730 maintained with North Malabar Gramin Bank Ltd; 9. On pass book of North Malabar Gramin Bank issued to Ammed P.P. That means, not only from the defacto complainant but from other persons also the petitioner had obtained documents. Numerous blank stamp papers and blank cheques were found in his possession and power. In fact the petitioner has not produced all necessary documents before this Court. Even the charge sheet is a truncated document. Charge sheet indicates that he had lent money to at least two persons i.e., CWs 2 and 7. Their statements are not forthcoming. The impugned order indicates that nine items of properties and large number of signed stamp papers and signed cheques were found in his upkeep. That would only indicate that the petitioner was engaged in money lending business in a large scale. Therefore, Crl.R.P.No.528 OF 2021 9 there is absolutely no basis in his contention that the charge alleged against him are groundless. 9. The decisions relied on by the learned counsel for the petitioner are not applicable in the facts of the case. Both were Crl.M.C.s, for quashing the proceedings. In **Jayachandrakurup** 's case (supra), the contention is that some financial assistance was given to a friend or neighbour. Similarly, in the case of **Kurian** (supra) only individual case of lending money has been noticed. But here, as noticed earlier, large number of documents were seized which prima facie indicate that he was engaged in the business of money lending. He is not a money lender; he has not obtained license and from the oral testimony of CWs 2 and 7, it was suggested that he was engaged in money lending business in large scale. In the complaint, CW2 had alleged that after lending Rs. 1,50,000/-, even after repaying more than double the amount, the petitioner was demanding huge amount in return and therefore, the correctness of such a statement can be decided only after taking Crl.R.P.No.528 OF 2021 10 evidence. It is not a case of groundless prosecution and therefore, revision is only to be dismissed. 10. After considering rival contentions and the parameters followed by the learned Magistrate, I do not find valid reasons to interfere with the order. The fact that he is a 81 year old person would not mitigate the allegations against him and therefore, the Crl. Rev. Petition is only to be dismissed. Dismissed. Sd/- **K.HARIPAL JUDGE** **DCS/05.12.2021** Crl.R.P.No.528 OF 2021 11 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**ANNEXURE A1**|**A TRUE COPY OF THE COMPLAINT DATED**| |---|---| ||**25.05.2013.**| |**ANNEXURE A2**|**TRUE COPY OF THE FIR NO.449 DATED**| ||**23.06.2013 OF KULAVALLUR POLICE STATION.**| |**ANNEXURE A3**|**TRUE COPY OF THE CHARGE SHEET DATED**| ||**08.01.2014 IN CC NO.268/14 OF THE CHIEF**| ||**JUDICIAL MAGISTRATE, THALASSERY.**| |**ANNEXURE A4**|**TRUE COPY OF THE ORDER OF THE HON'BLE HIGH**| ||**COURT IN CRL.MC NO.2232/2014 DATED**| ||**19.03.2021.**| |**ANNEXURE A5**|**TRUE COPY OF THE DISCHARGE APPLICATION**| ||**FILED BY THE PETITONER DATED 05.08.2021.**| |**ANNEXURE A6**|**CERTIFIED COPY OF THE ORDER DATED**| ||**17.08.2021 DISMISSING THE DISCHARGE**| ||**APPLICATION.**|