Dismissed

George Kurian v. Sub Inspector of Police

Kerala HC23 Mar 2018Crl.MC/6204/2014

Case brief

AI extract

What is this about?

The petitioner, a Branch Manager of an RBI-registered non-banking financial company, challenged criminal proceedings alleging offences under the Kerala Money Lenders Act and IPC. He argued he was not required to obtain a license. The court held that the petitioner must rely on the interim Supreme Court stay at the trial level, not quash the case now.

What did the court decide?

None. The criminal appeal was dismissed with directions to plead the interim stay before the trial court.

George Kurian Vs Sub Inspector of Police — Corruption | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ASHOK MENON

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FRIDAY, THE 23RD DAY OF MARCH 2018 / 2ND CHAITHRA,1940

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Crl.MC.No. 6204 of 2014

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AGAINST THE ORDER/JUDGMENT IN CC 500/2014 of J.M.F.C., KATTAPPANA

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PETITIONER(S)/ACCUSED

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GEORGE KURIAN

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S/O. KURIAN, RESIDING AT MAVUNKAL HOUSE, KOCHUTHOVALA, KATTAPPANA, IDUKKI DISTRICT, PINCODE-685508.

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BY ADV.SRI.PEEYUS A.KOTTAM

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RESPONDENT(S)/COMPLAINANTS/STATE:

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1. SUB INSPECTOR OF POLICE

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KATTAPPANA POLICE STATION (INVESTIGATING OFFICER IN CRIME NO. 919/2014 OF KATTAPPANA POLICE STATION), IDUKKI DISTRICT, PINCODE-685508.

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2. RAJESH KUMAR T.G. S/O. GOPALAN, THADATHIL HOUSE, CHINNAR, ELAPPARA P.O., IDUKKI DISTRICT, PINCODE-685501.

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3. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682031.

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R1&R3 BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA. R2 BY ADV. SRI.NIREESH MATHEW

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02-03-2018, AND THE COURT ON 23-03-2018 PASSED THE FOLLOWING:

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Crl.MC.No. 6204 of 2014 (E)

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APPENDIX

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PETITIONER(S)' EXHIBITS:

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ANNEXURE A1-	TRUE COPY OF CERTIFICATE OF REGISTRATION BEARING NO. A.16.00151 DATED 03-04-2002 ISSUED BY RESERVE BANK OF INDIA TRIVANDRUM TO THE PETITIONER.
ANNEXURE A2-	TRUE COPY OF THE FRESH CERTIFICATE OF INCORPORATION BEARING NO. U65921KLI989PLCOO5568 DATED 01-02-2002 CONSEQUENT ON CONVERSION INTO A PUBLIC LIMITED COMPANY ISSUED BY THE REGISTRAR OF COMPANIES KERALA TO THE PETITIONER.
ANNEXURE A3-	TRUE COPY OF SEIZURE MAHAZAR DATED 02-06-2014 IN CRIME NO. 919/2014 KATTAPPANA POLICE STATION.
ANNEXURE A4-	TRUE COPY OF FIRST INFORMATION REPORT DATED 02-06-2014 IN CRIME NO. 919/2014 OF KATTAPPANA POLICE STATION.
ANNEXURE A5-	CERTIFIED COPY OF FINAL CHARGE NO. 1313/2014 DATED 03-07-2014 SUBMITTED BEFORE JUDICIAL FIRST CLASS MAGISTRATE COURT KATTAPPANA IN CC NO. 500/2014.
ANNEXURE A6-	TRUE COPY OF LEDGER EXTRACT PERTAINING TO ACCOUNT OF CW-1, 2ND RESPONDENT HEREIN, MAINTAINED BY M/S. RELIANT HIRE PURCHASE COMPANY LTD.

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RESPONDENT(S)' ANNEXURES:

NIL

/TRUE COPY/

PA TO JUDGE

dkr

ASHOK MENON, J.

Crl.M.C. No. 6204 of 2014

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------------------------------------------Dated this the 23^rd day of March, 2018

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O R D E R

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The petitioner is the Branch Manager of Reliant Hire Purchase Company Ltd. Kattappana, a company registered under the Indian Companies Act, 1956 as per Annexure A2 certificate of incorporation, and having Annexure A1 certificate of registration issued by the Reserve Bank of India for working as a non-banking financial institution. The petitioner states that the company has right to get involved in all sorts of financial activities like, disburse hire purchase loans, recover the sum and to perform non-banking financial activities.

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The 1^st respondent registered Crime No.919/2014 of Kattappana Police Station at Annexure A4, alleging offences punishable under Section 17 of the Kerala Money Lenders Act and Section 420 of I.P.C. The allegation against the petitioner is that with an intention to acquire illegal benefit and without any licence or permission, the company advanced hire purchase to the 2^nd

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Crl.M.C.6204/2014

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respondent, defacto complainant for the purchase of an autorickshaw and towards security for prompt repayment of the amount, collected the R.C.Book, key, two blank cheques and signed stamp papers, etc; towards the loan of Rs.1 lakh and that although the 2^nd respondent repaid a sum of Rs.1,84,000/- as on 30-052014, demanded a sum of Rs.15,000/- more for returning the documents and thereby committed the alleged offence.

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The petitioner's contention is that the neither an offence punishable under Section 17 of the Money Lenders Act nor an offence under Section 420, I.P.C. will be attracted as the petitioner's Company is a non-banking financial institution, which is not obliged to obtain the licence under the Act and doing the financial activities as per the guidelines and instructions being issued by the RBI. To attract Section 420, I.P.C. the ingredients are not sufficient and neither pleaded nor alleged. The 1^st respondent came to the Branch of the company with media men, conducted search and seized an amount of Rs.74,700/- as per the mahazar at Annexure A3. After completion of the investigation, Annexure A5 final report has been filed before the Judicial First Class Magistrate Court, Kattappana.

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Crl.M.C.6204/2014

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As there was an attempt to bring the non-banking financial institutions within the purview of the Kerala Money Lenders Act, 1958, it was challenged before this Court by the Association of non-banking financial companies. However, this Court dismissed the Writ Petitions by a common judgment. Writ Appeals filed by the Association too were dismissed confirming the judgment in the Writ Petitions. S.L.P.No.35778/2009 was filed before the Honourable Supreme Court and vide order dated 09-12-2009 at Annexure A7, the Apex Court directed an interim stay till pendency of the matter. As far as the complaint filed by the defacto complaint is concerned, the entire hire purchase amount has been paid with overdue interest as disclosed by the ledger extract at Annexure A6, which would also indicate that the amount advanced to the defacto complainant was Rs.1,24,000/- as on 02-12-2010 and he had agreed to repay the same in 40 monthly installments of Rs.4,025/-each. He was a chronic defaulter, as can be seen from the ledger extract. It is therefore prayed that the entire proceedings in the criminal case pending as C.C.No.500/2014 be quashed exercising the extraordinary jurisdiction of this Court.

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Crl.M.C.6204/2014

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The learned Senior Public Prosecutor appearing for respondents 1 and 3 submits that Annexure A1 does not indicate the place of business, and therefore, the certificate is not sufficient. But he is not able to point out the provision which would indicate that the certificate should mention the place of business. The place of business is a requirement for the license to be issued under the Kerala Money Lenders Act. It is admitted by the learned Counsel for the petitioner that the company did not have license under Section 17 of the Kerala Money Lenders Act. When the authorities insisted on such licence, the writ petitions were filed before this Court, which were dismissed and the Writ Appeals were also dismissed and now the matter is pending before the Apex Court and by virtue of the interim order produced as Annexure A7, the business is continuing. However, as long as the Honourable Supreme Court does not come to the decision regarding the requirement of money lenders licence, it cannot be held that licence under Section 17 is not required. As the law stands now, compliance of Section 17 is mandatory. But the petitioner is able to continue the business only because of the stay obtained from the Apex Court. But this does

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Crl.M.C.6204/2014

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not mean that the criminal proceedings initiated against them be quashed on the basis of the stay they have obtained as per Annexure A7. In case, the Hon'ble Supreme Court affirms the order of the Division Bench of this Court dismissing the Writ Appeals questioning the compliance of Section 17 of the Money Lenders Act, the criminal proceedings is perfectly valid and once it is ordered to be quashed, it cannot be revived. Under the circumstances, I find that it would be premature for this Court to quash the proceedings in Crime No.919/2014 of Kattappana Police Station. Annexure A7 has ordered the appeals to be expedited. The fact regarding the interim order which enables the petitioner to continue the business will have to be urged before the trial court and the same shall be considered by the trial court on its merit. With these observations, the Crl.M.C. is dismissed.

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Sd/ASHOK MENON Judge

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dkr

George Kurian v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

George Kurian v. Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

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