Padmakumari Amma V.R. v. B. Jayanthi & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 07TH DAY OF DECEMBER 2020 / 16TH AGRAHAYANA, 1942** ## **CRL.MC.NO.6371 OF 2015** **CC 488/2015 OF TEMPORARY JUDICIAL FIRST CLASS MAGISTRATECOURT, KOLAM CRIME NO.821/2014 OF KOLLAM WEST POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED:** **PADMAKUMARI AMMA V.R.,AGED 53 YEARS, W/O.K.G.SREEKUMAR, 'PADMASREE', KUDAVATTOOR P.O.,ODANAVATTOM (VIA), KOTTARAKKARA, KOLLAM DISTRICT-691512.** **BY ADV. SRI.T.R.HARIKUMAR** ## **RESPONDENTS/COMPLAINANT & STATE:** **1 B.JAYANTHI, AGED 51 YEARS, W/O.VIJAYAKUMAR IPS, RESIDING AT 'KRISHNASREE', OLAYIL MALAYALI SABHA NAGAR 105, THEVALLY DIVISION, KOLLAM DISTRICT, PIN 691009. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTROR, HIGH COURT OF KERALA, KOCHI, PIN 682031.** **ADV. SRI.C.UNNIKRISHNAN (KOLLAM) FOR R1 SRI.B.JAYASURYA, PUBLIC PROSECUTOR FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -----------------------------------------Crl.M.C. No. 6371 of 2015 -----------------------------------------Dated this the 7[th] day of December, 2020 ## O R D E R The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“........quash Annexure-VIII Final Report and all further proceedings in C.C. 488/2015 pending before the Temporary Judicial First Class Magistrate Court, Kollam.”_ 2. The petitioner herein has been arrayed as the sole accused in instant impugned Anx. II FIR in Crime No.821/2014 of Kollam West Police Station, which has been registered 3.6.2014 for offences punishable under Secs.13 & 17 of the Kerala Money Lenders Act, 1958, in pursuance of Anx. I complaint/petition filed by the 1[st] respondent lady defacto complainant before the District Police Chief, Kollam. The police after investigation has filed the impugned Anx.VIII final report/charge sheet in the said Crime No.821/2014 of Kollam West Police Station, which has now led to the pendency of Calender Case C.C.No.488/2015 on the file of the Temporary Judicial First Class Magistrate Court, Kollam. 3. The case of the petitioner is that the abovesaid impugned Crl.M.C. No. 6371 of 2015 ..3.. criminal proceedings have been set in motion at the instance of the 1[st] respondent lady defacto complainant on the basis of false allegations made by her due to extraneous and malicious considerations. Further that, the 1[st] respondent is a lady employed at the Kadakkal Branch of the Kollam Co-operative Agricultural and Rural Development Bank Ltd. and that the 1[st] respondent had befriended the petitioner through her cousin Baiju, who is also employed in the said Bank and that the acquaintance later grown into friendship and was nurtured for quite some time and the petitioner had time and again helped the 1[st] respondent financially to meet her ostentatious way of life. That, the 1[st] respondent herein is the daughter of a former State Cabinet Minister and also the wife of an influential police officer belonging to the Indian Police Service Cadre of the Kerala State who was then in the rank of District Police Chief. That, by initially repaying smaller amounts borrowed from the petitioner promptly, the 1[st] respondent had gained the trust and confidence of the petitioner. That, in the year 2014 at a time when the daughter of the 1[st] respondent was to complete her MBBS course and her marriage was also fixed, the 1[st] respondent requested the petitioner to arrange for an amount of Crl.M.C. No. 6371 of 2015 **==> picture [19 x 9] intentionally omitted <==** Rupees Twenty Lakhs, and promised to repay the amount immediately. Since the petitioner did not had such funds with her, she arranged the money through a relative of her named Gopalakrishnan, who is a NRI and said Gopalakrishnan wanted a nominal interest to be paid for the amount advanced by him, for which the 1[st] respondent was also agreeable. Thereupon, the amount was handed over to the 1[st] respondent and towards discharge of said liability, the 1[st] respondent issued 4 cheques dated 1.8.2014 for Rupees Five Lakhs each drawn on the Kollam Branch of the State Bank of India. Further that, apprehending that the said friend of the petitioner will immediately institute criminal proceedings in that regard, the 1[st] respondent has made a preventive move by filing Anx.I petition/complaint before the District Police Chief, Kannur, and on account of the influence yielded by her husband in the police department, the aforesaid proceedings has been set in motion and registered as Anx.II FIR which resulted in the impugned final report at Anx.VIII. Further, the counsel for the petitioner would point out that, the very same complainant, viz the 1[st] respondent, has raised similar allegations as against other persons and had arrayed them as accused as can Crl.M.C. No. 6371 of 2015 ..5.. be seen from Anxs.IX & X final reports in Crime Nos.820/2014 & 822/2014 both of the Kollam West Police Station, wherein the allegations are pertaining to offences allegedly disclosed as per the Prohibition of Charging Exorbitant Interest Act, etc but relating to similar allegations in financial transactions etc. The petitioner would also place reliance on Anx.XI enquiry report dated 19.10.2016 issued by the Dy.S.P. of Police on a petition filed by the petitioner herein and her husband in which the falsity of the allegations in the present impugned criminal proceedings and raising similar false allegations at Anxs.IX & X etc was also pointed out by the competent police official concerned. That, in Anx. XI enquiry report, the Dy.S.P. of Police has _inter alia_ found that the present case (in Anx.II) as well as that at Anxs.IX & X in Crime No.822/2014, both of Kollam West Police Station, requires serious further investigation in the matter, etc. In which there was also clear findings that there were no material evidences to prove the alleged monetary transactions between the petitioner herein and the 1[st] respondent which led to the impugned Anxs.II & VIII proceedings, and further that there are no materials to show that the petitioner herein has involved in money lending activity as Crl.M.C. No. 6371 of 2015 **==> picture [19 x 9] intentionally omitted <==** conceived in the Kerala Money Lenders Act, 1958, or that the petitioner has charged any exorbitant interest from the 1[st] respondent, etc. One of the prime contentions urged by the petitioner is that, even going by the admitted prosecution materials, there is no material to show that the alleged activity of the petitioner would fulfill the definition of money lender as understood in Sec. 2(7) of the Kerala Money Lenders Act, 1958. 4. Both parties have been heard _in extenso_ . Sec. 2(7) of the Kerala Money Lenders Act, 1958, defines money lender as follows: “ _(7).“money-lender” means 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 and includes any person appointed by him to be in charge of a branch office or branch offices or a liaison office or any other office by whatever name called, of his principal place of business and a pawn broker, but does not include―_ - _(a) a bank or a co-operative society; or_ - _(b) the Life insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (Central Act 31 of 1956); or_ - _(bb) the industrial Credit and Investment Corporation of India Limited incorporated under the Indian Companies Act, 1913 (7 of 1913);_ - _(c) the industrial Finance Corporation established under section 3 of the Industrial Finance Corporation Act, 1948 (Central Act 15 of 1948) ; or_ - _(d) *************_ - _(e) the State Financial Corporation established under section 3 of the State Financial Corporation Act, 1951 (Central Act 63 of 1951); or_ - _(f) any institution established by or under an Act of Parliament or the Legislature of a State, which grants any loan or advance in pursuance of the provisions of that Act, or_ - _(g) any institution in the public sector, whether incorporated or not exempted by the Government by notification._ _**Explanation I.―** Where a person, who carries on in the State of Kerala the business of advancing and realising loans is resident outside the State, the agent of such person resident in the State shall be deemed to be the money-lender in respect of that business for the purposes of this Act._ Crl.M.C. No. 6371 of 2015 ..7.. _**Explanation II.―** For the purposes of this clause, clause (7A), proviso to subsection (1) of section 3, clause (a) of sub-section (3) of Section 10, Section 16B and Section 17, the word “person” shall include “a firm or a joint family;_ _(7A) “pawnbroker” means a person who carries on the business of taking goods and chattels in pawn for a loan._ _**Explanation. ―** Every person who keeps a shop for the purchase or sale of goods or chattels and who purchases goods or chattels and pays or advances thereon any sum of money, with or under any agreement or understanding expressed or implied that the goods or chattels may be afterwards repurchased on any terms is a pawnbroker within the meaning of this clause;_ _(7B) “pawner” means a person delivering an article for pawn to a pawnbroker;_ _(7C) “pledge” means an article pawned with a pawnbroker;_ ” 5. Neither the 1[st] respondent herein nor the police have a case either in Anx.II FIR or in Anx.VIII Final Report that the petitioner is 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. No materials whatsoever have been produced in the impugned criminal proceedings at Anx.II FIR or Anx.VIII to even remotely suggest that the main or subsidiary occupation of the petitioner is the business of advancing and realising loans or acceptance of deposits. On the other hand it appears that, the petitioner is permanently employed at the Kadakkal Branch of the Kollam Co-operative Agricultural and Rural Development Bank Ltd. Therefore, it may not be far off the mark to atleast infer on a _prima facie_ basis that, since the petitioner is a lady who is working as a full time employee of an Crl.M.C. No. 6371 of 2015 **==> picture [20 x 9] intentionally omitted <==** institution which is an apex Co-operative Agricultural Rural Development Bank in the State, she would not have any time or resources to carry out the main or subsidiary occupation in the business of advancing and realising loans or acceptance of deposits. Moreover, this aspect of the matter is also dealt with in Anx. XI enquiry report dated 19.10.2016 issued by the Dy.S.P. of Police, wherein this cardinal aspect of the matter relating to very same criminal proceedings at Anxs.II & VIII have also been mentioned. 6. This Court has considerably taken the view in decisions as in _**Kurian V.V. v. Leelamma Sebastian & Another [2015 (4) KLT 476 = 2015 KHC 5272 (para 2)], Vimal v. State of Kerala [2015 KHC 2395 (para 1)]**_ etc that unless the prosecution has got credible materials to show that the main or subsidiary occupation of the accused is the business of advancing and realising loans or acceptance of deposits in the course of such business, etc criminal proceedings in terms of the provisions of the Kerala Money Lenders Act, 1958, will not lie. The said dictum would apply with all force in the facts and circumstances of this case. Hence, this Court is of the considered view that the very Crl.M.C. No. 6371 of 2015 ..9.. initiation and continuance of the impugned criminal proceedings at Anx.II FIR or Anx.VIII final report, which has led to the pendency of Calender Case C.C.No.488/2015 on the file of the Temporary Judicial First Class Magistrate Court, Kollam, is vitiated and is also illegal and _ultra vires_ and hence is liable for interdiction at the hands of this Court. 7. Further, it appears that at Anx.III statement subsequently given by the 1[st] respondent on 4.6.2014, after the registration of Anx.II FIR on 3.6.2014, the 1[st] respondent has improvised her case by saying that she has borrowed an amount of Rupees Seven Lakhs from the petitioner, whereas in Anx.I petition and in Anx.II FIR her definite case is that, she had borrowed only an amount of Rupees One Lakh from the petitioner and that the petitioner was repeatedly making illegal demands to pay exorbitant interest etc. Hence, in view of the grave inconsistency in the very version of the 1[st] respondent made on 4.6.2014 as per Anx.III and that too hardly a day after the registration of Anx.II FIR dated 3.6.2014, would also be a clear pointer that the allegations have been raised wrongly and for extraneous or other ulterior considerations. Further, it appears from a reading of Anxs.VIII, IX Crl.M.C. No. 6371 of 2015 ..10.. & X final reports filed in abovesaid crimes as well as from a reading of Anx.XI enquiry report by the Dy.S.P of Police, that the very same allegations are repeated by the 1[st] respondent as against in these separate impugned criminal proceedings set in motion at her behest and that too against different persons. 8. The counsel for the petitioner would point out that the 1[st] respondent could succeed to get the crimes registered and final reports filed on account of the influence yielded by her husband who was then a Senior IPS Officer in the State, etc. That aspect of the matter need not be examined by this Court in detail for the simple reason that even a police officer in the rank of Dy.S.P. of Police has found in Anx. I about the similarity of allegations raised in three different crimes which resulted in final reports as per Anxs.VIII, IX & X, all has been set in motion by the very same defacto complainant, ie, the 1[st] respondent. 9. In the light of these aspects this Court is of the considered view that, the impugned criminal proceedings would deserve interdiction at the hands of this Court in exercise of the inherent and extra ordinary powers preserved and saved by Sec. 482 of the Cr.P.C. In that view of the matter it is ordered that the Crl.M.C. No. 6371 of 2015 **==> picture [22 x 7] intentionally omitted <==** impugned Anx.VIII final report/charge sheet filed in Anx.II FIR in Crime No.821/2014 of Kollam West Police Station, which has led to the pendency of Calender Case C.C.No.488/2015 on the file of the Temporary Judicial First Class Magistrate Court, Kollam, as against the petitioner accused and all further proceedings emanating therefrom as against the petitioner accused, will stand quashed and set aside. 10. The petitioner will produce certified copy of this order before the Investigating Officer concerned as well as before the Temporary Judicial First Class Magistrate Court, Kollam, who is dealing with C.C.No.488/2015, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 6371 of 2015 ..12.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEUXRE-I**|**A TRUE COPY OF THE COMPLAINT FILED BY THE**| |---|---| ||**1ST RESPONDENT BEFORE THE POLICE**| ||**COMMISSIONER KOLLAM CITY.**| |**ANNEUXRE-II**|**A TRUE COPY OF THE FIRST INFORMATION**| ||**REPORT DATED 03.06.2014 IN CRIME**| ||**NO.821/2014 OF THE KOLLAM WEST POLICE**| ||**STATION.**| |**ANNEUXRE-III**|**A TRUE COPY OF THE STATEMENT GIVEN BY THE**| ||**1ST RESPONDENT ON 04.06.2014 IN CRIME**| ||**NO.821/2014.**| |**ANNEUXRE-IV**|**A TRUE COPY OF THE STATEMENT GIVEN BY THE**| ||**1ST RESPONDENT ON 26.11.2014 IN CRIME**| ||**NO.821/2014.**| |**ANNEUXRE-V**|**A TRUE COPY OF THE STATEMENT GIVEN BY**| ||**GIRIJA**<br>**ON**<br>**04.06.2014**<br>**IN**<br>**CRIME**| ||**NO.821/2014.**| |**ANNEUXRE-VI**|**A TRUE COPY OF THE STATEMENT GIVEN BY**| ||**JAYAKUMAR ON 04.06.2014 IN CRIME**| ||**NO.821/2014.**| |**ANNEUXRE-VII**|**A TRUE COPY OF THE STATEMENT GIVEN BY**| ||**AJITH KUMAR ON 23.10.2014 IN CRIME**| ||**NO.821/2014.**| |**ANNEUXRE-VIII**|**CERTIFIED COPY OF THE FINAL REPORT IN**| ||**CRIME NO.821/2014 DATED 26.11.2014 OF THE**| ||**KOLLAM WEST POLICE STATION.**| |**ANNEUXRE-IX**|**A TRUE COPY OF THE FINAL REPORT IN CRIME**| ||**NO.820/2014 DATED 01.11.2014 OF THE**| ||**KOLLAM WEST POLICE STATION.**| |**ANNEUXRE-X**|**A TRUE COPY OF THE FINAL REPORT IN CRIME**| ||**NO.822/2014 DATED 13.11.2014 OF THE**| ||**KOLLAM WEST POLICE STATION.**|