Kuttisankara Guptan and Sreekanth v. State of Kerala and Gopalakrishnan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 2[ND] 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. Crl.M.C.No.3000 OF 2021 4 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 Crl.M.C.No.3000 OF 2021 5 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 Crl.M.C.No.3000 OF 2021 6 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. Crl.M.C.No.3000 OF 2021 7 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 Crl.M.C.No.3000 OF 2021 8 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 Crl.M.C.No.3000 OF 2021 9 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 Crl.M.C.No.3000 OF 2021 10 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 Crl.M.C.No.3000 OF 2021 11 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** Crl.M.C.No.3000 OF 2021 12 ## **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.**|