Kerala High Court
Haneefa vs State Of Kerala on 16 January, 2025
2025:KER:2980
Crl.M.C.No.1627/2019
-:1:-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
THURSDAY, THE 16TH DAY OF JANUARY 2025 / 26TH POUSHA, 1946
CRL.MC NO. 1627 OF 2019
CRIME NO.1343/2015 OF NOORANADU POLICE STATION, ALAPPUZHA
AGAINST THE ORDER IN CC NO.396 OF 2016 OF JUDICIAL MAGISTRATE
OF FIRST CLASS - II, MAVELIKKARA
PETITIONER/ACCUSED:
HANEEFA,
AGED 58 YEARS,
S/O.IBRAHIM RAWTHER, HANSA MANZIL,
ADIKATTUKULAMGARA MURI, PALAMEL VILLAGE.
BY ADVS. R.SUNIL KUMAR
SMT.A.SALINI LAL
RESPONDENTS/DE-FACTO COMPLAINANT:
1 STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
2 SHANAVAS,
AGED 52 YEARS, S/O.SHAHUL HAMEED, SHEHANAS VIHAR,
AADIKKATTUKULANGARA, PALAMEL-690504.
BY ADVS.SRI.RASHEED C.NOORANAD FOR R2
ANITHA M.N. (EKM) FOR R2
SRI. G. SUDHEER, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
19.12.2024, THE COURT ON 16.01.2025 PASSED THE FOLLOWING:
2025:KER:2980
Crl.M.C.No.1627/2019
-:2:-
ORDER
The petitioner is the accused in C.C.No.396/2016 on the files of
the Judicial First Class Magistrate Court-II, Mavelikkara, a case relating
to the commission of offence under Section 420 of the Indian Penal
Code, 1860, Section 3 read with Section 17 of the Kerala Money-Lenders
Act, 1958, and Section 9 (a) of the Kerala Prohibition of Charging
Exorbitant Interest Act, 2012. He seeks to quash the proceedings in the
said case stating the reason that the offence alleged are not attracted in
the facts and circumstances of the case.
2. The prosecution case is that the petitioner, who was having
no licence or other authority for money lending, advanced a loan of
Rs.3,00,000/- to the second respondent for exorbitant interest after
procuring four signed blank cheque leaves, a signed blank paper affixed
with revenue stamp and the land tax receipt of the immovable property
of the second respondent, and gained unjust enrichment by encashing
an amount of Rs.4,00,000/- by misusing one of the signed blank
cheques obtained from the second respondent, even after the
repayment of an amount of Rs.1,50,000/- out of the principal amount.
3. The case has been registered by the Sub Inspector of Police,
Nooranadu, on the basis of the First Information Statement given by the
2025:KER:2980
Crl.M.C.No.1627/2019
-:3:-
second respondent. During the course of investigation, the SI of Police,
Nooranadu, recovered the cheque leaf allegedly misused by the
petitioner for drawing the amount of Rs.4,00,000/- from the account of
the second respondent. The necessary bank statements showing the
transaction in the above regard were also collected by the Investigating
Officer and produced before the Magistrate. After the completion of the
investigation, a final report has been laid in respect of the commission of
the above said crime by the petitioner.
4. The petitioner, on appearance before the learned Magistrate,
filed C.M.P.No.5935/ 2017 seeking discharge under Section 239 of the
Code of Criminal Procedure, 1973 (in short, ‘Cr.P.C.’). The learned
Magistrate, after taking into account the prosecution records including
the statements of the witnesses, found that a prima facie case has been
made out against the petitioner and hence the prayer for discharge
cannot be allowed. With the above observation, C.M.P.No.5935/ 2017
was dismissed by the learned Magistrate.
5. Heard the learned counsel for the petitioner, the learned
counsel for the second respondent and the learned Public Prosecutor
representing the State of Kerala.
2025:KER:2980
Crl.M.C.No.1627/2019
-:4:-
6. In the present petition, the contention of the petitioner is
that the act of lending an amount of Rs.4,00,000/- to the second
respondent and the collection of money from the account of the second
respondent making use of the cheque given by the second respondent
will not constitute any offence. The dictum laid down by a Single
Bench of this Court in Kurian v. Leelamma Sebastian [2015(4) KLT
476] is relied on by the learned counsel for the petitioner in support of
the above argument.
7. It is true that in Kurian v. Leelamma Sebastian (supra),
the learned Single Judge held that in a case where the accused is not
shown to be a money lender, the causal instances of money lending will
not attract a prosecution under the Kerala Money-Lenders Act, 1958.
However, the facts and circumstances of the present case are totally
different from the facts of the said case.
8. Section 2(7) of the Kerala Money-Lenders Act, 1958 defines
“money lender” 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
2025:KER:2980
Crl.M.C.No.1627/2019
-: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);] or
(c) the Industrial Finance Corporation established under section 3
of the Industrial Finance Corporation Act, 1948 (Central Act 15 of
1948); or[(d) x x x]
(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
2025:KER:2980
Crl.M.C.No.1627/2019
-:6:-
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 section 10, [section 16B] and section 17, the
word “person” shall include “a firm or a joint family;”
9. The statement given by the second respondent as well as
the witnesses cited as CW2 and CW3 in the final report, contain clear
indications that the petitioner is a person involved in the business of
advancing and realising loans. Thus, the Investigating Agency is seen to
have gathered prima facie materials to show that the petitioner is a
money lender.
10. Section 3(1) of the Kerala Money-Lenders Act, 1958,
stipulates that no person shall carry on the business as a money lender
without a licence obtained under the said Act. Section 17 of the said Act
prescribes the punishment of imprisonment extending upto three years
and fine of Rs.5,00,000/- for the offenders who carries on money
lending business without licence. So also, Section 3 read with Section
9(a) of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012,
provides for a penalty of imprisonment for three years and fine of
2025:KER:2980
Crl.M.C.No.1627/2019
-:7:-
Rs.50,000/- for those who charge exorbitant interest on any loan
advanced by him.
11. A reading of the final report and the other relevant records
relied on by the prosecution would prima facie show that there is a
sustainable complaint that the petitioner had committed the aforesaid
offences alleged against him. The truth and falsity of the accusations in
the above regard are to be tested in the trial before the learned
Magistrate. As the records relied on by the prosecution ex facie point to
the commission of the offence alleged against the petitioner, it is not
possible for this Court to invoke the inherent powers under Section 482
Cr.P.C. to nip the prosecution in the bud, and to terminate the
proceedings before the learned Magistrate. Therefore, the petition filed
by the petitioner herein is legally unsustainable.
In the result, the petition is hereby dismissed.
(sd/-)
G. GIRISH, JUDGE
DST
2025:KER:2980
Crl.M.C.No.1627/2019
-:8:-
APPENDIX
PETITIONER ANNEXURES
ANNEXURE 1 CERTIFIED COPY OF THE F.I.R.NO.1343/15 OF THE
NOORANAD POLICE STATION.
ANNEXURE 2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME
NO.1343/15 OF THE NOORANAD POLICE STATION.
ANNEXURE 3 CERTIFIED COPY OF THE ORDER IN C.M.P.NO.5935/17
IN C.C.NO.396/2016 OF JFMC-II, MAVELIKKARA.
[ad_1]
Source link