P.G.KOSHY PANICKER v. STATE OF KERALA AND SUB INSPECTOR OF KUNDARA POLICE STATION

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 16[TH] DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943 CRL.MC NO. 5927 OF 2014 TO QUASH F.I.R IN CRIME NO.1317/2014 DATED 21.6.2014 OF Kundara Police Station, Kollam ## PETITIONER/ACCUSED: P.G.KOSHY PANICKER AGED 50 YEARS S/O. I. GEORGE PANICKER, PUSHPAMANGALAM HOUSE, PUNNAMUKKU, PERUMPUZHA, KOLLAM. BY ADVS. SRI.JOY GEORGE SRI.C.X.ANTONY BENEDICT SMT.TANYA JOY ## RESPONDENTS: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SUB INSPECTOR OF POLICE KUNDARA POLICE STATION, KUNDARA, KOLLAM. R1 & R2 BY SHRI. ARAVIND V. MATHEW THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.10.2021, THE COURT ON 16.11.2021 PASSED THE FOLLOWING: CRL.MC No.5927 of 2014 2 ## ORDER The petitioner who is the accused in Crime No.1317/2014 of Kundara Police Station has filed this Crl.M.C, to quash Annexure-A3 FIR submitted in the said Crime. The aforesaid case was registered against him for the offences punishable under section 511 of 420,468,471 of the Indian Penal Code (IPC) and under Sections 3,4,17,18A of the Kerala Money Lenders Act. 2. The aforesaid case was registered based on an inspection conducted in the office of the petitioner, who is conducting the business of money lending, on 21.06.2014. It is alleged that, during inspection, several receipts without any serial numbers or license number, registers, blank cheques and stamp papers were seized. On the basis of the said documents, it is alleged that the petitioner was indulging in the business CRL.MC No.5927 of 2014 3 of money lending, without any license under the Kerala Money Lenders Act (KML Act). 3. The case of the petitioner is that, the petitioner is a person who has a license under the Kerala Money Lenders Act, and even if the allegations contained in the FIR are accepted in its entirety, no offences alleged against him are made out. In such circumstances, he seeks to quash the said FIR and all further proceedings pursuant thereto, by invoking the inherent powers of this Court under section 482 of the Code of Criminal Procedure (Cr.PC). 4. A statement has been filed on behalf of the respondents along with a detailed report of the investigating officer wherein, the prayer sought for by the petitioner is stoutly opposed. It is mentioned in the said statement that, subsequent to the registration of Annexure A3 FIR, the petitioner has produced the license obtained by him and acting upon the same, the police has already filed a report before the CRL.MC No.5927 of 2014 4 jurisdictional Magistrate deleting the offences under section 3,4,17 and 18A of KML Act. However, it was pointed out that, based on the investigation conducted on the basis of the records seized by the police from the office of the petitioner, certain instances of molestation of certain debtors were found and accordingly they have incorporated the offence under section 13 of the KML Act, and a report to that effect is already submitted before the Magistrate Court. It was asserted in the said statement that, as part of the investigation several instances of harassment of debtors were revealed . 5. Heard Sri. Joy George, learned counsel for the petitioner and Sri. Aravind V. Mathew, the learned Public Prosecutor. 6. The learned counsel for the petitioner contends that, the entire proceedings are liable to be quashed as the same stems up from a personal rivalry of certain police officers with the petitioner. He also refers to Annexures A4 CRL.MC No.5927 of 2014 5 and A5 to substantiate the same. He also brought my attention to the averments in paragrahs 3 and 4 of the Crl.M.C, where specific reference of instances showing the personal grudge of the officers are mentioned. According to him, allegations against him do not attract any of the offences alleged and the entire proceedings were initiated only to harass him. 7. Per contra, the learned public Prosecutor seriously opposes the said contentions, by placing reliance upon the contents of the statement filed by the police. It is pointed out that, investigation has proceeded substantially, during which sufficient materials have been unearthed revealing the culpability of the petitioner for the offences and the charge sheet could not be filed as there was an order of stay in this Crl.M.C. It is contended that, as the case is only at the stage of investigation, it is not proper to invoke the powers under section 482 of Cr.P.C. CRL.MC No.5927 of 2014 6 8. The crucial point to be considered is whether, the petitioner could make out case for invoking the powers under section 482 of Cr.P.C. The prayer sought for by the petitioner is to quash Annexure A3 FIR. It is to be noted in this regard that FIR is a document, which contains the basic information received by the police at the first instance as to the commission of an offence, which enables the police to commence a detailed investigation and to find out the incriminating materials against the accused. It is not necessary that it should contain all the details of the case, and nothing precludes the investigating officer to add or delete any offences, on the basis of the materials collected during the investigation. It is true that, from the contents of Annexure A3 FIR, it can be seen that, the proceedings have been initiated under the premise that the petitioner was carrying out the business of money lending without any license, but the same was proved to be incorrect, CRL.MC No.5927 of 2014 7 as later, the petitioner has produced a valid license which was subsisting at the relevant time. Consequently, the police have already filed a report before the jurisdictional Magistrate, deleting the offences under KML Act, relating to the same. Apparently what remains is the offences under provisions of 420,468,471 r/w 511 of IPC. Further, offence under section 13 of KML Act is also reported to have been incorporated. 9. It is true that, basic premise on which the proceeding was initiated namely, lack of license under KML Act, is no longer in existence, but it is contended on behalf of the prosecution that, during the investigation certain instances of molestation of certain debtors were revealed, for which, offence under section 13 of the KML Act is incorporated by deleting the offences under sections 3,4, 17 and 18A. The petitioner seriously disputes allegation of molestation of debtors demanding repayment of the amounts, by referring to the instances mentioned in CRL.MC No.5927 of 2014 8 paragraphs 5 and 6 of the report of the investigating officer produced along with the statement of the respondents. It is pointed out that, even those instances do not make out a case for section 13 of the KML Act and hence the proceeding is an abuses of process of court. 10. From the said report, it can be seen that, one instance of harassment is that of one Usha, whose signed blank cheques were found in the office of the petitioner during the search conducted by the police. She has stated that, those documents were forcibly taken by the petitioner a few years back and it must be her husband who had taken loan. Another instance is relating to one Sharlet, who stated that she borrowed an amount of Rs. 3 lakhs from the petitioner at an exorbitant interest by submitting blank cheques and documents. It is alleged by her that, even though she repaid the said amount along with interest, the petitioner refused to return the documents and demanded more CRL.MC No.5927 of 2014 9 money and interest. Another instance of harassment is mentioned by one Mini whose late husband, borrowed an amount of Rs 2 Lakhs from the petitioner. As mentioned above, the petitioner seriously disputing the veracity of the said instances of harassment mentioned in the said report. Thus the question that emerges is as to whether the above aspects makes out a case warranting invocation of power under section 482 of Cr.PC. 11. It is settled position of law that, power under section 482 of Cr.PC is to be invoked sparingly and on rare occasions. While exercising such powers this court is not supposed to examine the veracity of the statements made by the witnesses as if such evidence is being examined during the course of trial. 12. In Mahendra v. State of Karantaka [2021(6) KLT Online 1128 (SC)], the Honourable Supreme Court was pleased to observe as follows; CRL.MC No.5927 of 2014 10 _“21. Based on the above precedent, the High Court while exercising its powers under Section 482 of the Cr.PC to quash the FIR instituted against the second respondentaccused should have applied the following tests; i)whether the allegations made in the complaint, prima facie constitute an offence; and ii) whether the allegations are so improbable that a prudent man would not arrive at the conclusion that there is sufficient ground to proceed with the complaint. …..”_ 13. While applying the tests as specified above, it can be seen that, the scope for interference in the matter at this stage is very less. It is true that, contents of the FIR reveals that, the proceeding was initiated on the impression that, the petitioner was conducting business of money lending without a proper license, which is later found to be baseless. However, it is seen that, during investigation conducted on the basis of the documents seized from the petitioner, certain allegations of molestation of certain persons, who had borrowed amounts from the petitioner are revealed and an investigation is going on in relation to the CRL.MC No.5927 of 2014 11 same. Though the said allegations are seriously disputed by the petitioner, I am not in a position to examine the sustainability of the same at this juncture. First of all, the statements made by the aforesaid witness are not before me at the moment and what is available is only the report of investigating officer indicating the same. Unless the contents of the statements of the witness are examined, the veracity of the same cannot be ascertained. 14. Further, even if the said statements are produced before me, it is not possible to examine the same in a proceeding under section 482 of Cr.PC. The question of veracity of the said statements is a matter of evidence. In State of M.P v. Surendra Kori [2012 (4) KLT Suppl. 35 (SC)], it was held as follows; “ _The High Court in exercise of its powers under section 482 CrPC does not function as a Court of Appeal or Revision. This court has, in several judgments held that inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under section_ CRL.MC No.5927 of 2014 12 _482, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.”_ 15. When considering this case in the light of the above principle, it can be seen that, the matter is under investigation and at the moment the evidence leading to the allegations are not before me. From the nature of the allegations, as contained in the report of the investigating officer, it cannot be concluded that, no prima facie case is made out for attracting the offence under section 13 of the KML Act. If this court is interfering in the proceedings pursuant to Annexure A3 FIR at this juncture, it would close the doors for the investigating agency to complete the investigation and would be left with no opportunity to bring the incriminating materials, if any, available against the accused. CRL.MC No.5927 of 2014 13 On the other hand, even if the investigation is allowed to be proceeded, the contentions raised by the petitioner as to the lack of veracity of the statement of witness, would still be available to the petitioner, as it would be possible for him to prove his innocence at the later stage of the proceedings. In such circumstances, it is only just and proper to permit the investigating officer to complete the investigation and submit a final report, while leaving open all the contentions and remedies available to the petitioner, by way of moving this court under section 482 Cr.PC against such final report or to face the trial and to establish his innocence based on evidence. 16. In the above circumstances, I am of the view that, an interference of this court is not warranted at this stage of the proceedings. Accordingly, the Crl.M.C is dismissed, without prejudice to the rights, contentions and remedies of the petitioner, to challenge the final report, CRL.MC No.5927 of 2014 14 to be filed by the investigating officer in Crime No.1317/2014 of Kundara Police Station. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.5927 of 2014 15 ## PETITIONER’S EXHIBITS: 1. ANNEXURE A1: THE PHOTOCOPY OF THE MONEY LENDING LICENCE NO.32020469526 2. ANNEXURE A2: THE PHOTOCOPY OF THE E-CHALAN RECEIPT ISSUED FROM THE COMMERCIAL TAXES DEPARTMENT 3. ANNEXURE A3: THE CERTIFIED COPY OF THE F.I.R IN CRIME NO.1317 OF 2014 OF KUNDARA POLICE STATION 4. ANNEXURE A4: THE PHOTOCOPY OF THE LETTER OF THE POLICE OFFICER IN HIS OWN HANDWRITING 5. ANNEXURE A5: THE PHOTO COPY OF THE PLAINT IN O.S.NO.635/2012 6. ANNEXURE A6: PHOTOCOPY OF THE INFORMATION DATED 14.8.2014 RECEIVED FROM THE OFFICE OF THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT. 7. ANNEXURE A7 SERIES: THE PHOTOCOPY OF THE RECEIPTS OF CERTAIN PRIVATE FINANCES. 8. ANNEXURE A8: THE PHOTOCOPY OF THE GOLD LOAN RECEIPT OF KOLLAM DISTRICT CO-OPERATIVE BANK 9. ANNEXURE A9: THE PHOTOCOPY OF THE GOLD LOAN RECEIPT OF SCHEDULED BANK, FEDERAL BANK LTD. 10.ANNEXURE A10. THE PHOTOCOPY OF THE GOLD LOAN RECEIPT OF STATE BANK OF INDIA. 11.ANNEXURE A11. THE PHOTOCOPY OF THE LETTER ISSUED FROM THE KUNDARA POLICE STATION. //TRUE COPY// **==> picture [116 x 23] intentionally omitted <==**