Sundaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941** **Crl.MC.No.3413 OF 2016** **AGAINST THE ORDER/JUDGMENT IN CC 566/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ALATHUR** **CRIME NO.864/2013 OF Nenmara Police Station , Palakkad** ## **PETITIONER/ACCUSED:** **SUNDARAN AGED 42 YEARS S/O MADHAVAN, PADINJARETHARA, VALLANGHI, NENMARA, PALAKKAD DISTRICT.** **BY ADVS. SRI.PRASUN.S SRI.PAUL MATHEW (PERUMPILLIL)** ## **- RESPONDENT/COMPLAINANT STATE:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN 682031.** ## **OTHER PRESENT:** **SRI.C.S. HRITHWIK, SR.P.P. SRI.E.C.BINEESH, PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13.11.2019, THE COURT ON 29.01.2020 PASSED THE FOLLOWING:** Crl.MC 3413/2016 2 ASHOK MENON, J. -----------------------------------Crl.MC No.3413 of 2016 ------------------------------------Dated this the 29[th] day of January, 2020 ## O R D E R Petitioner is the sole accused in CC No.566/2014 on the files of the Judicial First Class Magistrate's Court, Alathur for having allegedly committed offences punishable under Sections 13 and 17 of the Kerala Money-Lenders Act, 1958 ['Money-Lenders Act' for short] and under Section 3 read with Section 9(a) of the Kerala Prohibition of Charging of Exorbitant Interest Act, 2012. The facts in brief are thus: 2. Pursuant to a search of the residence of the petitioner by the Sub Inspector of Police, Nenmara on 12.7.2013, four blank signed stamp papers having a value of Rs.100/- each purchased in the names of charge witness Nos.1 & 2 were seized. According to the prosecution, the stamp papers indicated the fact that the petitioner was involved in business of money lending without a valid licence and is charging Crl.MC 3413/2016 3 exorbitant interest in violation of the aforementioned provisions. 3. The petitioner submits that a perusal of the 161 statements given by charge witness Nos.1 & 2 which accompanies the final report at Annexure-A1, indicate that no offence as alleged was committed by him. None of those witnesses contend that they were charged exorbitant interest, nor had they stated that they were coerced, molested or harassed in any manner by the petitioner for recovery of any loan. On the contrary, their statements revealed that they had voluntarily handed over those stamp papers to the petitioner. The petitioner submits that there is not an iota of evidence to indicate that he was engaged in the main or subsidiary business of money lending. No documents are forthcoming to substantiate the fact that the petitioner has been lending money to various persons or that he was accepting deposits from others. There is also no records or accounts indicating that the petitioner was charging exorbitant interest. The statements of charge witness Nos.3 to 6 would indicate Crl.MC 3413/2016 4 that the petitioner was not engaged in the business of money lending or charging exorbitant interest. It is therefore prayed that the prosecution case is baseless and needs to be quashed under Section 482 Cr.PC. 4. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor. 5. Relevant portion of Section 2(7) of the MoneyLenders Act, which defines a 'money-lender', reads as thus: “ 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 reading of the Section would indicate that for a person to be called a money-lender, he should be doing some business in money lending either as his main or subsidiary occupation. In the instant case, there is absolute lack of material to indicate that the petitioner was engaging himself in such a business. No account books, ledgers or documents evidencing such Crl.MC 3413/2016 5 lending of money to various persons apart from the four blank signed stamp paper, is recovered by the detecting officer. Hence, there is total lack of evidence to indicate that the petitioner was conducting business of money lending. 6. In order to prosecute a person for charging exorbitant interest, there must be an indication about charging of exorbitant rate of interest from persons to whom the money is lend by him. There is no such evidence collected by the prosecution in this case. Section 7(1) of the Money-Lenders Act reads as thus : “ 7 Interest and charges allowed to money lenders .- (1) No money-lender shall charge interest on any loan at a rate exceeding 2% above the maximum rate of interest charged by commercial banks on loans granted by them: Provided that money-lender shall be entitled to charge a minimum of one rupee as interest on any transaction. Provided further that the Government may specify, by notification, the rate of interest under sub-Section (1) from time to time.” There is no evidence regarding the rate of interest, much less evidence regarding the petitioner charged Crl.MC 3413/2016 6 exorbitant interest. 7. Necessarily, no offence is attracted under Section 3 read with Section 9(a) of the Kerala Prohibition of Charging Exorbitant Interest Act. 8. Section 13 of the Money-Lenders Act prescribes penalty for whoever molests or abets the molestation of any debtor for the recovery of any loan. None of the charge witnesses has given statement to the effect that they were abetted either by the petitioner or by any one else on his abetment for recovery of any loan. 9. Since there is no material to show that the petitioner was lending money as a business, license as required under Section 17 of the Money-Lenders Act is not necessary. This court has in Vimal v. State of Kerala [2015 (1) KLT 524] held that lending of money to a person under one or more documents will not by itself constitute the offence of unauthorised money lending meant under the Kerala Money Lenders Act and that the prosecution will have to prove some sort of business in money lending for successful prosecution. The mere fact the accused was found in possession of some cheque Crl.MC 3413/2016 7 leaves or some other documents will not prove a business transaction. 10. In Kurian v. Leelamma Sebastian [2015 (4) KLT 476] , this Court held that 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. Casual instances of money lending will not attract a prosecution case under the Money-Lenders Act. Hence, I find that the prosecution as against the petitioner herein in CC No.566/2014 will not lie and is liable to be quashed. Accordingly, entire proceedings as against the petitioner herein in CC No.566/2014 on the files of the Judicial First Class Magistrate's Court, Alathur shall stand quashed under Section 482 Cr.PC and the petitioner is discharged. ## **Sd/-** ## **ASHOK MENON** **JUDGE** jg Crl.MC 3413/2016 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1** **THE TRUE PHOTO COPY OF THE FINAL REPORT C.C.NO.566 OF 2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, ALATHUR**