Petitioners challenged FIR registration alleging cheating and money lending offences. Court quashed proceedings observing lack of specific allegations under Money Lenders Act and finding the subsequent complaint an abuse of process given prior conviction for cheque bounce by the complainant.
FIR in Crime No.1090/2013 and all consequential proceedings are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938
Crl.MC.No. 3193 of 2013 ()
FIR IN CRIME NO. 1090/2013 OF PATHANAMTHITTA POLICE STATION, PENDING ON THE FILE OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA
PETITIONER(S)/ACCUSED 1 TO 3:
1. P.G.VIJAYAN
S/O. GOPALAN CHETTIYAR, VIJAYA BHAVAN, THEKKEMALA.P.O., CHEKKULAM, PATHANAMTHITTA DISTRICT.
2. RENJAN.M.
S/O. MUTHAYYAN CHETTIYAR, SREEMANGALAM, PRAKANAM.P.O., PATHANAMTHITTA.
3. SASIDHARAN MANGALATHIL HOUSE, PRAKKANAM.P.O.,PATHANAMTHITTA.
BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH
RESPONDENTS/STATE, COMPLAINANT & DEFACTO COMPLAINANT:
1. STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-682031.
2. THE SUB INSPECTOR OF POLICE PATHANAMTHITTA POLICE STATION, PATHANAMTHITTA DISTRICT-689001.
3. ANILKUMAR.K. KAIMANNIL VEEDU, ELANTHOOR.P.O., PATHANAMTHITTA DISTRICT-689643.
R1 & R2 BY PUBLIC PROSECUTOR SMT. MAYA M.N.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 3193 of 2013 ()
APPENDIX
PETITIONER(S)' EXHIBITS
ANNEXURE.I CERTIFIED COPY OF FIR IN CRIME NO. 1090/2013 OF PATHANAMTHITTA POLICE STATION.
ANNEXURE.II TRUE COPY OF THE JUDGMENT DATED 23-7-2010 IN S.T. 814/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PATHANAMTHITTA.
ANNEXURE.III. TRUE COPY OF THE KERALA PROHIBITION OF CHARGING EXORBITANT INTEREST ACT, 2012.
RESPONDENT(S)' EXHIBITS
----------------------NIL
TRUE COPY
P.A. TO JUDGE
SHG/
K.P.JYOTHINDRANATH, J.
Crl.M.C.No.3193 OF 2013
ORDER
This is a petition filed to quash all the proceedings in Crime No.1090/2013 of Pathanamthitta Police Station. It can be seen that this petition was filed as back as on 29.07.2013. The crux of the allegations and the relief sought is as follows :
The petitioners are accused 1 to 3 in Crime No.1090/2013 of Pathanamthitta Police Station. The offences alleged are under Sections 420, 468 read with Section 34 of IPC and also under Section 13 and 17 of the Kerala Money Lenders Act, 1958. As per the prosecution version, the defacto complainant obtained a loan of Rs.7,000/- at an interest of Rs.10/- per Rs.100/- per month from the the first accused. At the time of receiving the loan amount, a blank cheque was obtained by accused No.1. It is the case that accused Nos. 2 and 3 are the co-brothers of the first accused. It appears that thereafter the so called
Crl.M.C.No.3193/2013 2
cheque was allegedly misused by the first accused and filed S.T.No.814/2009 before the Judicial First Class Magistrate Court II, Pathanamthitta alleging an offence under Section 138 of the Negotiable Instruments Act. The case therein is that a cheque was issued for Rs.75,000/- against a loan of Rs.75,000/-. The case ended in conviction. It is the case of the petitioner that the said case attained finality as no appeal or no further proceeding taken against the same before the superior courts. Later on, when 'Kubera' operations started by the Police, a false complaint has been filed before the Police alleging offences under Sections 420, 468 read with Section 34 of IPC and also under Sections 13 and 17 of the Kerala Money Lenders Act. The said crime is under challenge.
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3
submission made before me is that whether in the complaint allegation against the petitioner is therein to attract an offence under Section 13 and 17 of the Kerala Money Lenders Act when the said allegations are lacking, registration of an offence under Section 13 and 17 of the Kerala Money Lenders Act will not be proper. Then the counsel also submitted before me that in this case it can be seen that the accused filed the complaint under Section 138 of the Negotiable Instruments Act on which the court took cognizance of the offence under Section 138 of the Negotiable Instruments Act and convicted the defacto complainant herein for an offence under Section 138 of the Negotiable Instruments Act. In this case, a notice was issued to respondent No.3 who was shown as respondent No.3 in this proceeding.
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Annexure 2, there is nothing to disbelieve the petitioner herein in that
regard.
and the the accused therein. It can be seen that both are Anil Kumar. Under such circumstances, it can be only said that there was a case for an offence under Section 138 of the Negotiable Instruments Act in between the petitioner herein and the defacto complainant, respondent No.3 herein and in respect of the same, it appears that a complaint before the Police is filed and a crime is registered for an offence under Section 420 and 468 of IPC. It have also perused the first information on which the crime was registered. There is no allegation to attract the registration of a crime for offence under section 13 and 17 of the Money Lenders Act. The information is seen given on seeing a paper report.
A similar case was considered by this Court in Kurian V.V. v. Leelamma Sebastian and Another ( 2015 KHC 5272) . Considering
the dictum laid down therein, I feel that this is a case where the powers
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5
vested under Section 482 of Cr.P.C. can be used, as the process appears to be an abuse of process of the court. Hence the FIR in Crime No.1090/2013 of Pathanamthitta Police Station and all the
consequential proceedings are hereby quashed.
Sd/-
K.P.JYOTHINDRANATH JUDGE
True copy
P.A. To Judge
sv.
3 issues framed by the court
Whether Section 13 and 17 of the Kerala Money Lenders Act were properly invoked given lack of specific allegations.
Whether registration of an offence under Section 420 and 468 IPC was appropriate when the defendant had already been convicted under Section 138 of the NI Act for the same transaction.
Whether the present proceedings amount to an abuse of process of the court under Section 482 Cr.P.C. warranting quashing.
Colour shows how this judgement treated each authority
Kurian V.V. v. Leelamma SebastianRelied on¶52
Kurian V.V. v. Leelamma Sebastian and Another ( 2015 KHC 5272)
7 provisions across 4 enactments
P.G.Vijayan and Others
State of Kerala
Anilkumar.K.
K.P.Jyothindranath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
