Retnamma v. State of Kerala and Others

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 27[TH] DAY OF OCTOBER 2021 / 5TH KARTHIKA, 1943 CRL.MC NO. 4477 OF 2015 [AGAINST THE PROCEEDINGS IN CRIME NO.943/2014 OF THIRUVALLA POLICE STATION] ## PETITIONER/ACCUSED: RETNAMMA,AGED 61 YEARS W/O.BALAKRISHNA PILLAI, RETNALAYAM, VALLAMKULAM EAST, ERAVIPEROOR, THIRUVALLA, PATHANAMTHITTA. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU ## RESPONDENTS/STATE/COMPLAINANTS: 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 REJIMON, AGED 40 YEARS S/O.GOPINATHAN, CHEMANAPALLATHU HOUSE, VALLAMKULAM,ERAVIPEROOR, THIRUVALLA, PATHANAMTHITTA689545 3 SAJITHA REJI,AGED 37 YEARS W/O.REJIMON, CHEMANAPALLATHU HOUSE, VALLAMKULAM,ERAVIPEROOR, THIRUVALLA, PATHANAMTHITTA. ## OTHER PRESENT: R1 BY PP-SRI. ARAVIND V. MATHEW. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.10.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.MC.No.4477 of 2015 2 ## O R D E R The petitioner who is the accused in Crime No.943/2014 of Thiruvalla Police Station has filed this Crl.M.C, seeking to quash Annexure B final report submitted in the said crime and all further proceedings pursuant thereto. 2. The aforesaid final report was submitted by the 1[st] respondent, on the basis of the complaint submitted at the instance of 2[nd] and 3[rd] respondents on the ground that the petitioner is conducting illegal money lending with exorbitant rate of interest. Based on their complaint, Annexure-A F.I.R. was registered and as part of investigation, an inspection was conducted in the premises of the petitioner, wherein, certain sale deeds, blank cheques, stamp papers were recovered. On the basis of the same, the police submitted Annexure-B charge sheet, after completing the investigation, alleging the offences under CRL.MC.No.4477 of 2015 3 Sections 3 r/w. 17 of the Kerala Money Lenders Act, 1958 (‘the Act’) and Section 4 of the Kerala Prohibition of Charging of Exorbitant Interest Act. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Even though notices were served upon party respondents, there is no appearance for them. 4. The learned counsel for the petitioner contends that no offence is made out, even if the entire allegations made out in Annexure B charge sheet are accepted on the face value thereof. Section 17 of the Act would not get attracted in this case, as according to him he is not a money lender as defined under the Act. It is also contended that, apart from a single instance of money lending which is made to the 2[nd] and 3[rd] respondents, who are husband and wife, no other instances of money lending are alleged against the petitioner. In such circumstances, it was contended that the proceedings are liable to be CRL.MC.No.4477 of 2015 4 quashed by invoking the powers of this Court under Section 482 of the Cr.PC. The learned counsel also relies on the judgment in Kurian V.V. v. Leelamma Sebastian and Another [2015(4) KLT 476] wherein it is observed that casual instances of money lending will not attract a prosecution under the Kerala Money Lenders Act. 5. The crucial question that has to be considered is whether Section 17 of the Act is attracted or not. Section 17 of the Act contemplates penalty for carrying out business of money lending without licence or in violation of the conditions of licence. The crucial ingredient to attract the said offence is that the accused must have been conducting money lending business. The term money lender has been defined under Section 2(7) of the Act which reads as follows: 2(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 CRL.MC.No.4477 of 2015 5 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) [(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. Explanation II.― For the purposes of this Clause (7A), proviso to sub-section (1) of section 3, clause (a) of sub-section (3) of section10, CRL.MC.No.4477 of 2015 6 [section 16B] and section 17, the word “person” shall include “a firm or a joint family;” A reading of the said provision would indicate that unless the accused is carrying on a business of advancing and realizing loans or acceptance of deposits, it cannot be treated as a business of money lending. Merely because the accused happened to advance an amount of Rs.5,75,000/- to the defacto complainant, the petitioner cannot be said to be a person engaged in the business of money lending. 6. From the materials before me, it can be seen that an amount of Rs.5,75,000/- was borrowed by respondents 2 and 3 from the petitioner. Later, as the party respondents failed to repay the same, the petitioner along with her husband submitted a complaint before the Secretary, Eraviperoor Grama Panchayat. On the basis of the said complaint, a settlement was arrived at and as per Annexure-D, 2[nd] and 3[rd] respondents had agreed to repay the loan within one year from the date of settlement. It is CRL.MC.No.4477 of 2015 7 pointed out that, subsequent to the same, a complaint was submitted by the 2[nd] and 3[rd] respondents against the petitioner which ultimately resulted in Annexure-A F.I.R. which is sought to be quashed by the petitioner in this petition. 7. On examination of the factual situation revealed from the above, it can be seen that the instance of money lending in this case was a single one. The final report does not indicate that the petitioner was indulging in money lending as his main or subsidiary occupation. Unless there are materials to establish the fact that the petitioner was indulging in money lending as a business, the petitioner cannot be treated as a money lender as defined under Section 2(7) of the Kerala Money Lenders Act. Being a money lender is one of the most basic ingredient to attract Section 17 of the Act. Since there are no materials to establish the same, the offence under section 17 is not attracted. CRL.MC.No.4477 of 2015 8 8. Even though, Section 4 of the Kerala Prohibition of Charging of Exorbitant Interest Act, is alleged against the petitioner, the contents of the final report does not indicate the ingredients of the said offence as well. No documents indicating the charging of excessive interest is seen produced. Moreover, Annexure D would indicate that the 3[rd] respondent, who is the wife of the 2[nd] respondent, on 7.05.2013 agreed to repay the amount borrowed from the petitioner in installments within a period of one year. Annexure-A FIR is seen registered on 12.05.2014, ie. after one year. No complaint is seen to have been submitted by the party respondents during the period in between, either with regard to the demand of any excess interest or as to any molestation. This would indicate that, the allegation of the offence under Section 4 of the Kerala Prohibition of Charging of Exorbitant Interest Act, is charged without any ground and CRL.MC.No.4477 of 2015 9 thus the entire proceedings are an abuse of process of law. In such circumstances, I am inclined to invoke the powers of this Court under Section 482 of the Cr.PC and accordingly Annexure-B final report in Crime No.943/2014 of Thiruvalla Police Station and all further proceedings pursuant thereto are hereby quashed. The Crl.M.C. is allowed as above. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC.No.4477 of 2015 10 ## APPENDIX OF CRL.MC 4477/2015 PETITIONER’S ANNEXURE: ANNEXURE A: TRUE COPY OF THE FIR IN CRIME NO.943/2014 OF THIRUVALLA POLICE STATION ANNEXURE-B: TRUE COPY OF THE FINAL REPORT IN CRIME NO.943/2014 OF THIRUVALLA POLICE STATION. ANNEXURE-C: TRUE COPY OF THE COMPLAINT DATED 24/4/2014 PREFERRED BY THE PETITIONER AND HER HUSBAND BEFORE THE SECRETARY, ERAVIPEROOR GRAMA PANCHAYAT. ANNEXURE-D: TRUE COPY OF THE MINUTES OF THE MEETING OBTAINED UNDER RIGHT TO INFORMATION ACT. ANNEXURE-E: TRUE COPIES OF THE TREATMENT RECORDS ISSUED FROM INDO-AMERICAN HOSPITAL, BRAIN AND SPINE CENTRE, VAIKOM. //True copy// Sd/PS to Judge