Venupillai V.A. and Tulasi v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 31[ST] DAY OF MAY 2023 / 10TH JYAISHTA, 1945`** ## **`CRL.MC NO. 6900 OF 2017`** ## **`CC No. 619/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NEDUMKANDOM`** ## **`PETITIONERS/ACCUSED NOS.1&2:`** ``` 1VENUPILLAIV.A AGED59YEARS R/ATBLOCKNO.661,BALAGRAM,KARUNAPURAMVILLAGE, UDUMBANCHOLATALUK,IDUKKIDISTRICT,PIN-685552. 2TULASI AGED46YEARS W/O.VENUPILLAI,R/ATBLOCKNO.661,BALAGRAM, KARUNAPURAMVILLAGE,UDUMBANCHOLATALUK, IDUKKIDISTRICT,PIN-685552. BYADVS. SRI.TOMJOSE SMT.GEETHAJOBOZHUKAYIL ``` ## **`RESPONDENTS/STATE & DE FACTO COMPLAINANT:`** ``` 1STATEOFKERALA REPRESENTEDBYTHEPUBLICPROSECUTOR,HIGHCOURTOF KERALA,ERNAKULAM. ``` ``` 2SUBINSPECTOROFPOLICE NEDUMKANDAMPOLICESTATION,NEDUMKANDAMP.O., IDUKKIDISTRICT,PIN-685553. ``` ``` 3P.T.SATHYARAJAN S/O.P.K.THANKAPPAN,BLOCKNO.653,PATTAMCOLONY, BALAGRAM,IDUKKIDISTRICT,PIN-685552. ``` ``` BYADVS. ``` Crl.M.C No.6900 of 2017 2 ``` SRI.P.CHANDYJOSEPH SRI.P.CHANDYJOSEPH SRI.C.K.VIDYASAGAR ``` ``` SRIVIPINNARAYAN,SRPUBLICPROSECUTOR ``` ``` THISCRIMINALMISC.CASEHAVINGCOMEUPFORADMISSIONON 31.05.2023,THECOURTONTHESAMEDAYPASSEDTHEFOLLOWING: ``` Crl.M.C No.6900 of 2017 3 ## **ORDER** The petitioners herein are the accused in C.C No.619 of 2014 on the file of the Judicial First Class Magistrate Court, Nedumkandam. In the aforesaid case, they are accused of having committed offences punishable under Section 17 of the Kerala Money Lenders Act and Section 4 of the Kerala Prohibition of Charging Exorbitant Interest Act. 2. The prayer in this petition is to quash Annexure-B FIR and Annexure C charge sheet in C.C.No.619/2014 pending on the file of the JFMC, Nedumkandam. 3. The prosecution allegation is that the accused, in violation of the provisions of the Kerala Money Lenders Act and the Kerala Prohibition of Charging Exorbitant Interest Act, 2012, charged exorbitant interest on the loan advanced by them. It is also alleged that despite payment of the principal and interest, the petitioners refused to return the original documents taken by them by way of security. 4. Sri. Tom Jose, the learned counsel appearing for the petitioners, would rely on Annexures-C to G documents, and it is argued that evaluation of the same would disclose that the dispute between the Crl.M.C No.6900 of 2017 4 parties is purely civil in nature. According to the learned counsel, the petitioners herein have not violated any of the provisions of the Money Lenders Act. 5. In response, it is submitted by the learned Public Prosecutor that allegations in the Final report do disclose the ingredients of the offences and this Court will not be justified in relying on the documents produced by the accused to quash the proceedings. Reliance is placed on the final report and also on the statements given by the witnesses, and it is submitted that it cannot be said that the ingredients of the offence are not made out. According to the learned Public Prosecutor, no reliance can be placed on the documents produced by the petitioners along with this petition. 6. I have heard the learned counsel for the petitioners and the learned Public Prosecutor. 7. In **State of A.P. v. Golconda Linga Swamy** [2004 (6) SCC 522], the Apex Court had occasion to succinctly lay down the principles that should guide the court while considering a petition under Section 482 of the Cr.P.C. Paragraph Nos. 5-8 of the judgment reads as under: **5.** Exercise of power under S.482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any Crl.M.C No.6900 of 2017 5 new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. Ail courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the Section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercises of the Crl.M.C No.6900 of 2017 6 powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto. **6.** In R.P. Kapur v. State of Punjab [AIR 1960 SC 866] this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6) - (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; - (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; - (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. **7.** In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not Crl.M.C No.6900 of 2017 7 support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]. A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 102) - “ 102. (1) Where the allegations made in the first - information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a Crl.M.C No.6900 of 2017 8 case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognisable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Crl.M.C No.6900 of 2017 9 Act concerned, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” **8.** As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest court of a State 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 magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305] and Raghubir Saran (Dr.) v. State of Bihar [AIR 1964 SC 1] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are Crl.M.C No.6900 of 2017 10 to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognisance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint/FIR has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant or disclosed in the FIR that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint/FIR is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 Crl.M.C No.6900 of 2017 11 SCC 194], State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651], State of U.P. v. O.P. Sharma [(1996) 7 SCC 705], Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259] and State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89]. 8. It is no more res integra that the exercise of power under S.482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet does not constitute the ingredients of the offences alleged. Interference by the High Court under S.482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in their defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under S.482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offense alleged against the accused, the Court cannot quash a criminal proceeding (see **Rajeev Kourav v. Baisahab and Ors** [2020 (2) KLJ 463]. The observations and directions issued by the Hon’ble Supreme Court in Crl.M.C No.6900 of 2017 12 ## **Neeharika Infrastructure Pvt. Ltd. M/s. v. State of Maharashtra** **and Ors** [AIR 2021 SC 1918] are also instructive. Having considered all the relevant inputs, I do not find any exceptional reason for this Court to invoke the powers under Section 482 Cr.P.C to quash the criminal proceedings against the petitioners. This petition is accordingly dismissed. It is made clear that the observation made above was made solely for the purpose of disposal of this petition and shall not be considered as any observations on the merits of the case of the petitioners. It would be open to the petitioners to raise all their contentions before the learned Magistrate at the appropriate stage. It is also made clear that the right of the petitioners to plea discharge is also left open. If any such application is filed at the appropriate stage, the learned Magistrate shall consider the same and pass expeditious orders. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** ``` IAP ``` Crl.M.C No.6900 of 2017 13 ## **`APPENDIX OF CRL.MC 6900/2017`** ``` PETITIONERS’ANNEXURES: ``` ``` ANNEXUREATRUECOPIESOFTHEPOLICECOMPLAINT PREFERREDBYP.T.SHEELA,THANKAMANIAND DEFACTOCOMPLAINANTP.T.SATHYARAJAN. ``` ``` ANNEXUREBATRUECOPYOFTHEF.I.R.LODGEDINCRIME NO.479/2014. ``` - `ANNEXURE C A TRUE COPY OF THE CHARGE SHEET IN C.C.NO.619/2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, NEDUMKANDAM.` - `ANNEXURE D A TRUE COPY OF THE DECREE IN O.S.NO.59/2007 BEFORE THE HON'BLE MUNSIFF'S COURT, KATTAPPANA.` - `ANNEXURE E A TRUE COPY OF THE ORDER IN IA NO.62/2008 IN O.S.NO.59/2007.` - `ANNEXURE F A TRUE COPY OF THE JUDGMENT IN O.S.NO.90/2004 BEFORE THE MUNSIFF COURT, KATTAPPANA DATED 16.09.2006.` - `ANNEXURE G A TRUE COPY OF THE REPORT PUBLISHED IN MALAYALA MANORAMA DAILY DATED 08.06.2014.` - `ANNEXURE H A TRUE COPY OF THE JUDGMENT OF HONOURABLE HIGH COURT OF KERALA IN O.P.(C) 2993/2014 DATED 07.11.2016.`