Allowed

C.v.Wilson v. State of Kerala

Kerala HC1 Dec 2021Crl.MC/3584/2015

Case brief

AI extract

What is this about?

The Kerala High Court quashed criminal proceedings against a money lender alleging violation of record-keeping mandates under the Kerala Money Lenders Act. Finding the final report vague and failing to allege specific licence condition breaches, the court held Section 17 was not attracted and invoked inherent powers to quash.

What did the court decide?

All further proceedings in C.C. No. 234/2015 on the file of the Judicial First Class Magistrate Court, Kunnamkulam are quashed.

C.v.Wilson Vs State of Kerala — Money Laundering | Kerala HC (2021)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.

¶4

WEDNESDAY, THE 1^ST DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943 CRL.MC NO. 3584 OF 2015

¶5

[TO QUASH THE PROCEEDINGS IN C.C.NO.234/2015 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM ARISING OUT OF CRIME NO.2260/2014 OF KUNNAMKULAM POLICE STATION, THRISSUR

¶6

DISTRICT]

¶7

PETITIONER/ACCUSED:

¶8

C.V.WILSON AGED 55 YEARS S/O CHIRIYAKKU, CHERUVATHOOR HOUSE, PAREMPADAM, KUNNAMKULAM-680503.

¶9

BY ADVS. SRI.SANTHEEP ANKARATH SRI.ARUN MATHEW VADAKKAN

¶10

RESPONDENT/COMPLAINANT:

¶11

STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031., REPRESENTING THE STATION HOUSE OFFICER, KUNNAMKULAM POLICE STATION, KUNNAMKULAM680503, THRISSUR DISTRICT.

¶12

OTHER PRESENT:

¶13

PP-SRI.SUDHEER GOPALAKRISHNAN FOR THE RESPONDENT

¶14

THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶15

CRL.MC No.3584 of 2015 2

¶16

O R D E R

¶17

The petitioner is the sole accused in C.C. No.234

¶18

of 2015 on the file of the Judicial First Class

¶19

Magistrate Court, Kunnamkulam which arose from Crime

¶20

No.2260/2014 of Kunnamkulam Police Station. The aforesaid crime was registered for the offence punishable under Section 17 of the Kerala Money Lenders Act(for short KML Act) and Annexure A1 is the First Information Report (FIR).

¶21

The prosecution case is that on 9.10.2014 at

¶22

about 2 p.m. police officials came to the

¶23

establishment of the petitioner and informed that they have received a complaint from a person, and they conducted an inspection in the premises. Thereafter, on the basis of the said inspection, Annexure-A1 FIR was registered for the offence mentioned above and after completing the

¶24

investigation, Annexure-A4 final report was filed before the Judicial First Class Magistrate Court,

¶25

Kunnamkulam. Later,cognizance was taken thereon by the learned Magistrate.

¶26

CRL.MC No.3584 of 2015 3

¶27

This Crl.M.C. is filed by the petitioner

¶28

seeking to quash all further proceedings therein on

¶29

the ground that the allegations contained in

¶30

Annexure-A4 final report do not constitute an offence of Section 17 of the KML Act.

¶31

Heard Sri. Sandeep Ankarath, the learned

¶32

counsel for the petitioner and Sri. Sudheer

¶33

Gopalakrishnan, the learned Public Prosecutor for the

¶34

respondent.

¶35

The specific case advanced by the learned

¶36

counsel for the petitioner is that he is conducting

¶37

the business of money lending on the basis of a

¶38

licence obtained in this regard as evidenced by

¶39

Annexure A2. Annexure A2 licence is being renewed

¶40

from time to time and to show the validity of the

¶41

aforesaid licence during the period of inspection, he

¶42

relies on Annexure-A5 which is a receipt for fees

¶43

registration renewal e-payment dated 14.5.2014. It is contended that as per Section 17 of the KML Act, the prosecution can be initiated against the petitioner only if he is carrying on the business without

¶44

CRL.MC No.3584 of 2015 4

¶45

obtaining a licence and therefore it is contended the proceedings as against the petitioner herein are not legally sustainable. On the other hand, the learned Public Prosecutor would contend that in the event of violation of the conditions of licence also, Section 17 of the KML Act would get attracted and the case of the prosecution is that they have carried out business without maintaining proper records.

¶46

The fact that the petitioner was having a

¶47

valid licence for money lending is not disputed. As pointed out by the learned Public Prosecutor, Section

¶48

17 of the KML Act would get attracted if the allegation is that the petitioner was carrying on the

¶49

business of money lending, in violation of the conditions of the licence or otherwise than in conformity with the terms and conditions of the licence. Therefore, the only question that arises is

¶50

as to whether any allegation to that effect is contained in Annexure-A4 final report. On going through the contents of Annexure-A4, it can be seen that, the only allegation against the petitioner is

¶51

CRL.MC No.3584 of 2015 5

¶52

that, he was found carrying out the business of money lending without maintaining proper records. However, the allegation contained in Annexure-A4 is too vague

¶53

as it does not contain any allegation as to the record which the petitioner failed to maintain so as to attract the offence under Section 17 of the KML Act. Section 9 of the KML Act provides for the documents to be maintained by a money lender. As per the said section, the only record to be maintained is a register of account showing each debt separately with the details of the said transactions. Even going by the averments contained in Annexure-A4, it is evident that, during the inspection, they have found a day-book from the premises indicating such transactions. Even though there was allegation that the entries was not proper, I am of the view that, that itself would not attract the offence under

¶54

Section 17 of the KML Act. This is because what is

¶55

contemplated as an offence under Section 17 of the

¶56

KML Act is the violation of conditions in the

¶57

licence. Annexure-A2 is the licence provided by the

¶58

CRL.MC No.3584 of 2015 6

¶59

authority which contained certain allegations. The

¶60

aforesaid conditions are extracted hereunder:

¶61

“1. This licence shall not be transferred to other person

¶62

2. The licence shall be produced to any Inspector appointed to inspect the accounts of the money lender or to any officers of the Agrl. Income Tax and Sales Tax Department not below the rank of a Sales Tax Officer/Agri. Income Tax Officer.

¶63

3. All books accounts and documents maintained by the Licencees and all charge and securities taken by him shall be open to inspection by any officer mentioned in condition 2.

¶64

4. The Licensee shall not remove the accounts and registers to any place outside the area where he is carrying on the business of money-lending except with the permission in writing of the authority who had given him licence.”

¶65

In the said conditions, the allegation now raised against the petitioner does not find any place. On going through the other documents, which form part of Annexure-A4, it is seen that there is an allegation, by relying upon the statement given by CW8 District Registrar of Chits, wherein it is stated that the petitioner does not have the licence to conduct the business of chit. However, the specific allegation for charging the offence under Section 17 of the KML

¶66

CRL.MC No.3584 of 2015 7

¶67

Act, as stated in the charge sheet is that the

¶68

petitioner was conducting money lending business

¶69

without the licence or conducting such business in

¶70

violation of the conditions of licence. The

¶71

allegation with regard to the conduct of chit

¶72

business is not a matter coming within the said

¶73

provision. The term money lender has been defined under Section 2(7) of the Act which reads as follows:

¶74

“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 name called, of his principal place of business and a pawn broker, but does not include―”

¶75

(a) a bank or a co-operative society; or

¶76

(b) the Life insurance Corporation of India established under section 3 of the Life Insurance Corporation Act, 1956 (Central Act 31 of 1956); or

¶77

[“(bb) the industrial Credit and Investment Corporation of India Limited incorporated under the Indian Companies Act, 1913 (7 of 1913);”];

¶78

(c) the industrial Finance Corporation established

¶79

under section 3 of the Industrial Finance Corporation Act, 1948 (Central Act 15 of 1948)

¶80

[(d) **********************************]

¶81

CRL.MC No.3584 of 2015 8

¶82

(e) the State Financial Corporation established under section 3 of the State Financial Corporation Act, 1951 (Central Act 63 of 1951); or

¶83

(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

¶84

(g) any institution in the public sector, whether incorporated or not exempted by the Government by notification

¶85

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 the State shall be deemed to be the money-lender in respect of that business for the purposes of this Act.

¶86

Explanation II.― For the purposes of this Clause (7A), proviso to sub-section (1) of section 3, clause (a) of sub-section (3) of section10, [section 16B] and section 17, the word “person” shall include “a firm or a joint family;”

¶87

Thus, it is evident that, the allegation of chitty

¶88

transaction without valid licence is completely a

¶89

different allegation which would not attract the

¶90

offence under Section 17 of the KML Act. As mentioned

¶91

above, the allegations contained in Annexure-A4 do

¶92

not reveal any allegation as to the violation of conditions of licence. In the absence of any such

¶93

CRL.MC No.3584 of 2015 9

¶94

allegations, no offence under Section 17 of the KML Act would get attracted.

¶95

In such circumstances, I am of the view that this is a fit case in which the powers of this Court under

¶96

Section 482 of the Cr.PC can be invoked as the

¶97

allegations do not constitute an offence under

¶98

Section 17 of the KML Act. Accordingly this Crl.MC is allowed and all further proceedings in C.C.No.234/2015 on the file of the Judicial First

¶99

Class Magistrate Court, Kunnamkulam which arises from Crime No.2260/2014 of Kunnamkulam Police Station, Thrissur are hereby quashed.

¶100

The above Crl.M.C. is disposed of as above.

¶101

Sd/-

¶102

ZIYAD RAHMAN A.A. JUDGE

¶103

pkk

¶104

CRL.MC No.3584 of 2015 10

¶105

APPENDIX OF CRL.MC 3584/2015

¶106

PETITIONER’S ANNEXURES:

¶107

ANNEXURE A1 CERTIFIED COPY OF FIRST INFORMATION REPORT DATED 9.10.2014 IN CRIME NO.2260/2014 OF KUNNAMKULAM POLICE STATION.

¶108

ANNEXURE A2: TRUE COPY OF CERTIFICATE OF REGISTRATION DATED 19.12.2008 ISSUED BY INSPECTING ASSISTANT COMMISSIONER, DEPARTMENT OF COMMERCIAL TAXES.

¶109

ANNEXURE A3: TRUE COPY OF FIRST INFORMATION REPORT NO.2313/2013 REGISTERED AT THE INSTANCE OF JIJI FRANCO AND DATED 9.11.2013 OF KUNNAMKULAM POLICE STATION.

¶110

ANNEXURE A4: CERTIFIED COPY OF FINAL REPORT DATED 28.11.2014 IN CRIME NO.2260/2014 OF KUNNAMKULAM POLICE STATION.

¶111

//TRUE COPY//

¶112

SD/-

¶113

PS TO JUDGE

C.v.Wilson v. State of Kerala

Case brief

What is this about?

What did the court decide?

C.v.Wilson v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sajeev Vs State of Kerala

Susheel Sarkar Vs State of Kerala

Sindhu Jose Vs Rony C.J

A.U.Raghurama Panicker Vs Bijil

Muhammed Jafri @ Athil Vs State of Kerala

Rajan Frederic Vs State of Kerala