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2019 DIGILAW 197 (KER)

Dominic Peter v. State of Kerala

2019-02-25

BHASKARAN PILLAI SUDHEENDRA KUMAR

body2019
ORDER : Bhaskaran Pillai Sudheendra Kumar, J. 1. The petitioner is the accused in C.C. No. 162 of 2017 on the files of the court below. The offences alleged are punishable under Section 3 read with Section 17 of the Kerala Money Lenders Act, 1958 and Section 2 (c) read with Section 9 (a) of the Kerala Prohibition of Charging Exorbitant Interest Act, 2012. 2. The petitioner has filed this Criminal M.C. praying for quashing the final report and further proceedings against the petitioner in the above said case. 3. Heard both sides. 4. The prosecution allegation is that the de facto complainant, who is the 2nd respondent herein, borrowed an amount of Rs. 1,00,000/- and the 2nd witness in the police charge borrowed an amount of Rs. 20,000/- from the petitioner and thereafter, the de facto complainant repaid an amount of Rs. 1,09,000/- after three months and the other person repaid an amount of Rs. 26,000/- after five months. However, the petitioner did not return the cheques entrusted by them with the petitioner. 5. In order to be a money lender as provided under Section 2 (7) of the Kerala Money Lenders Act, the main or subsidiary occupation of that person must be the business of advancing and realising loans or acceptance of deposits in the course of such business. A single instance of lending money is not sufficient for a person to be a money lender [see Balakrishna v. Babu 1994 (1) KLT 947]. 6. In this case, there is absolutely no allegation that the main or subsidiary occupation of the petitioner is the business of advancing and realising loans or acceptance of deposits. No document as alleged by the second respondent was also seized from the possession of the petitioner. There is absolutely no material before the Court to indicate that the main or subsidiary occupation of the petitioner is advancing and realising loans or acceptance of deposits in the course of such business In view of the above reasons, the petitioner cannot be said to be a money lender. Since the petitioner is not a money lender, the provisions under the Kerala Money Lenders Act and the Prohibition of Charging Exorbitant Interest Act, are not applicable against the petitioner. Having gone through the relevant inputs, I am satisfied that there is no material before the court against the petitioner constituting the ingredients of the offences alleged. Since the petitioner is not a money lender, the provisions under the Kerala Money Lenders Act and the Prohibition of Charging Exorbitant Interest Act, are not applicable against the petitioner. Having gone through the relevant inputs, I am satisfied that there is no material before the court against the petitioner constituting the ingredients of the offences alleged. For the said reason alone, the final report and further proceedings against the petitioner are to be quashed. 7. It is not disputed that the prosecution initiated against the 2nd respondent at the instance of the petitioner under Section 138 of the Negotiable Instruments Act is still pending before the Magistrate Court concerned. Having gone through Annexure -A petition filed by the 2nd respondent against the petitioner, in the light of Annexure-C complaint, it appears that Annexure-A petition was filed by the 2nd respondent only as a counterblast to shield the prosecution against the 2nd respondent initiated by the petitioner under Section 138 of the N.I. Act. Therefore, the registration of the crime and the filing of the final report against the petitioner on the basis of Annexure-A petition would amount to abuse of process of Court. 8. The Apex court in Mahindra and Mahindra Financial Services Limited and Another v. Rajiv Dubey [ (2009) 1 SCC 706 ] relied on the decision in State of Haryana v. Bhajan Lal [1992 suppl (1) SCC 335] and held that 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, proceeding initiated, is to be quashed. 9. In this case, the present complaint was instituted maliciously as a counter blast to shield the proceedings initiated against the second respondent by the petitioner under Section 138 of the N.I. Act. In the said circumstances also, the final report and further proceedings against the petitioner in the above case are to be quashed. Consequently, I am inclined to quash the final report and further proceedings against the petitioner in the above said case, in exercise of the inherent power under Section 482 Cr.P.C., to meet the ends of justice. It is ordered accordingly. In the result, this Crl. M.C. stands allowed.