K.A. Hameed and Nassar T.K v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN ``` ``` TUESDAY,THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA, 1945 CRL.MC NO. 6465 OF 2016 ``` ``` CRIME NO.772/2014 OF Palarivattom Police Station, Ernakulam CC 1097/2016 OF JMFC, KAKKANAD (TEMPORARY) ``` ## **`PETITIONERS/ACCUSED 1 AND 2:`** ``` 1K.A.HAMEED AGED 50, S/O. ABDUL KHADER, KOLLAMPARAMBIL HOUSE, VENNALA PO. KOCHI-28. 2NASSAR.T.K AGED 50, S/O. KUNJUMYTHEEN, KOLLAMPARAMBIL HOUSE,VENNALA PO., KOCHI-28 BY ADVS. SRI.K.R.VINOD SRI.S.ARAVIND MS.JENCY SUSAN JOSE SRI.V.SRI NATH ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI-31 ``` ## **`OTHER PRESENT:`** ``` SRI HRITHWIK CS, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CrlM.C..No.6465/2016 **2** **P.V.KUNHIKRISHNAN, J. -------------------------------Crl.M.C. No.6465 of 2016 ---------------------------------------------Dated this the 19[th] day of December, 2023** ## **ORDER** This Criminal Miscellaneous Case is filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity). 2. Petitioners are implicated as accused in C.C.No.1097/2016 on the file of the Judicial First Class Magistrate Court-IX, Kakkanad. The above case is chargesheeted alleging offences punishable under Section 17 of the Kerala Money Lenders Act, 1958 and Section 3 read with 4 of the Kerala Prohibition of Exorbitant Interest Act, 2012. 3. The crux of the prosecution case is that, on 28.05.2014, the 2[nd] petitioner herein, who is an employee of the 1[st] petitioner in his textile shop, was found in possession with Rs.44,480/- and upon the assumption that the said amount was the total collection of daily interest of the money financed by the 1[st] petitioner, the Sub Inspector of Police, CrlM.C..No.6465/2016 **3** Palarivattom Police Station, arrested the 2[nd] petitioner at 6.10 pm on the same day and registered Crime No.772/2014 of Palarivattom Police Station. After the arrest of the 2[nd] petitioner, the name of the 1[st] petitioner was also implicated as the 1[st] accused. Annexure-A1 is the final report. 4. It is the case of the petitioners that they are not conducting any money lending business. It is also the case of the petitioners that absolutely no material particulars have been stated by the Investigating Officer in Annexure-A1 final report to attract the offences alleged. According to the petitioners, to attract the prosecution under Section 17 of the Kerala Money Lenders Act, the accused person has to be a money lender as defined under Section 2(7) of the Act, i.e., a person whose main or subsidiary occupation is the business of advancing and realizing loans, or acceptance of deposits in the course of such business. Therefore it is submitted that even if there is any casual instances of money lending, that will not attract a prosecution under the Kerala Money Lenders Act. The petitioners also relied on the judgment of this Court in **Kurian V.V. v. Leelamma Sebastian and Another** [2015 KHC 5272]. Hence this criminal miscellaneous case is filed to quash the CrlM.C..No.6465/2016 **4** proceedings. 5. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 6. This Court perused Annexure-A1 final report. Even if the the entire final report is perused, it can only be seen that certain amount is seized from the petitioners and some witnesses stated that they borrowed money from the petitioners. That itself will not attract the offence alleged. In **Kurian V.V.’s case** (supra), this Court considered the matter in detail. It will be better to extract the relevant portion of that order: “2. It is well settled that casual instances of money lending will not attract a prosecution under the Kerala Money Lenders Act. Under Section 13 or 17 of the Kerala Money Lenders Act, only a money lender as defined under the law can be punished. Section 2(7) of the Kerala Money Lenders Act defines “money lender” as a person, whose main or subsidiary occupation is the business of advancing and realising loans, or acceptance of deposits in the course of such business, but does not include a bank or a co-operative society, or the Life Insurance Corporation of India, or the Industrial Credit and Investment Corporation of India, or the Industrial Finance Corporation, or the State Financial CrlM.C..No.6465/2016 **5** Corporation established under the State Financial Corporation Act, or any institution established by or under an Act of Parliament or the Legislature of a State. Thus, the definition is very clear as to who can be called a money lender. An individual lending money otherwise than as a money lender as defined under the law, cannot be prosecuted under the provisions of the Kerala Money Lenders Act. 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 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 CrlM.C..No.6465/2016 **6** 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. In the light of the above dictum, I am of the considered opinion that continuation of proceedings based on Annexure-A1 final report is an abuse of process of the court. Even if the entire allegations in Annexure-A1 final report is accepted in toto, the offences alleged are not attracted in the light of the principle laid down in **Kurian V.V.’s case** (supra). CrlM.C..No.6465/2016 **7** Therefore, I am of the considered opinion that this criminal miscellaneous case is to be allowed. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings against the petitioners in C.C.No.1097/2016 on the file of the Judicial First Class Magistrate Court-IX, Kakkanad, arising from Crime No.772/2014 of Palarivattom Police Station, are quashed. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** CrlM.C..No.6465/2016 **8** ## **`APPENDIX OF CRL.MC 6465/2016`** ``` PETITIONER ANNEXURES ANNEXURE A1: ``` ``` A TRUE COPY OF THE FINAL REPORT IN C.C.1097/2016 IN THE FILES OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT IX, KAKKANAD ```