Crl.M.C. to quash an FIR registered against a licensed money lender for hypothetical unlicensed operation, unlicensed money lending and debt recovery harassment. Court held Section 482 CrPC not appropriate as investigation is ongoing and evidence is incomplete.
Criminal Miscellaneous Case dismissed. Rights to challenge final report reserved.
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 ZIYAD RAHMAN A.A.
TUESDAY, THE 16TH DAY OF NOVEMBER 2021 / 25TH KARTHIKA, 1943
CRL.MC NO. 5927 OF 2014
TO QUASH F.I.R IN CRIME NO.1317/2014 DATED 21.6.2014 OF Kundara
Police Station, Kollam
PETITIONER/ACCUSED:
P.G.KOSHY PANICKER AGED 50 YEARS S/O. I. GEORGE PANICKER, PUSHPAMANGALAM HOUSE, PUNNAMUKKU, PERUMPUZHA, KOLLAM. BY ADVS. SRI.JOY GEORGE SRI.C.X.ANTONY BENEDICT SMT.TANYA JOY
RESPONDENTS:
1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 SUB INSPECTOR OF POLICE KUNDARA POLICE STATION, KUNDARA, KOLLAM. R1 & R2 BY SHRI. ARAVIND V. MATHEW
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.10.2021, THE COURT ON 16.11.2021 PASSED THE FOLLOWING:
CRL.MC No.5927 of 2014 2
ORDER
The petitioner who is the accused in Crime No.1317/2014 of Kundara Police Station has filed this Crl.M.C, to quash Annexure-A3 FIR submitted in the said Crime. The aforesaid case was registered against him for the offences punishable under section 511 of 420,468,471 of the Indian Penal Code (IPC) and under Sections 3,4,17,18A of the Kerala Money Lenders Act.
during inspection, several receipts without any serial numbers or license number, registers, blank cheques and stamp papers were seized. On the basis of the said documents, it is alleged that the petitioner was indulging in the business
CRL.MC No.5927 of 2014 3
of money lending, without any license under the Kerala Money Lenders Act (KML Act).
petitioner is a person who has a license under the Kerala Money Lenders Act, and even if the allegations contained in the FIR are accepted in its entirety, no offences alleged against him are made out. In such circumstances, he seeks to quash the said FIR and all further proceedings pursuant thereto, by invoking the inherent powers of this Court under section 482 of the Code of Criminal Procedure (Cr.PC).
CRL.MC No.5927 of 2014 4
jurisdictional Magistrate deleting the offences under section 3,4,17 and 18A of KML Act. However,
it was pointed out that, based on the investigation conducted on the basis of the records seized by the police from the office of the petitioner, certain instances of molestation of certain debtors were found and accordingly they have incorporated the offence under section 13 of the KML Act, and a report to that effect is already submitted before the Magistrate Court. It was asserted in the said statement that, as part of the investigation several instances of
harassment of debtors were revealed .
contends that, the entire proceedings are liable
to be quashed as the same stems up from a
personal rivalry of certain police officers with the petitioner. He also refers to Annexures A4
CRL.MC No.5927 of 2014 5
and A5 to substantiate the same. He also brought my attention to the averments in paragrahs 3 and 4 of the Crl.M.C, where specific reference of instances showing the personal grudge of the officers are mentioned. According to him, allegations against him do not attract any of the offences alleged and the entire proceedings were initiated only to harass him.
during which sufficient materials have been unearthed revealing the culpability of the petitioner for the offences and the charge sheet could not be filed as there was an order of stay in this Crl.M.C. It is contended that, as the
case is only at the stage of investigation, it is not proper to invoke the powers under section 482 of Cr.P.C.
CRL.MC No.5927 of 2014 6
whether, the petitioner could make out case for invoking the powers under section 482 of Cr.P.C. The prayer sought for by the petitioner is to quash Annexure A3 FIR. It is to be noted in this regard that FIR is a document, which contains the basic information received by the police at the
first instance as to the commission of an
offence, which enables the police to commence a detailed investigation and to find out the incriminating materials against the accused. It is not necessary that it should contain all the details of the case, and nothing precludes the investigating officer to add or delete any offences, on the basis of the materials collected during the investigation. It is true that, from the contents of Annexure A3 FIR, it can be seen that, the proceedings have been initiated under the premise that the petitioner was carrying out
the business of money lending without any license, but the same was proved to be incorrect,
CRL.MC No.5927 of 2014 7
as later, the petitioner has produced a valid license which was subsisting at the relevant time. Consequently, the police have already filed a report before the jurisdictional Magistrate, deleting the offences under KML Act, relating to the same. Apparently what remains is the offences under provisions of 420,468,471 r/w 511 of IPC. Further, offence under section 13 of KML Act is also reported to have been incorporated.
CRL.MC No.5927 of 2014 8
paragraphs 5 and 6 of the report of the investigating officer produced along with the statement of the respondents. It is pointed out that, even those instances do not make out a case
for section 13 of the KML Act and hence the
proceeding is an abuses of process of court.
that, one instance of harassment is that of one Usha, whose signed blank cheques were found in
the office of the petitioner during the search conducted by the police. She has stated that,
those documents were forcibly taken by the
petitioner a few years back and it must be her
husband who had taken loan. Another instance is
relating to one Sharlet, who stated that she
borrowed an amount of Rs. 3 lakhs from the
petitioner at an exorbitant interest by submitting blank cheques and documents. It is
alleged by her that, even though she repaid the
said amount along with interest, the petitioner
refused to return the documents and demanded more
CRL.MC No.5927 of 2014 9
money and interest. Another instance of harassment is mentioned by one Mini whose late husband, borrowed an amount of Rs 2 Lakhs from the petitioner. As mentioned above, the petitioner seriously disputing the veracity of the said instances of harassment mentioned in the said report. Thus the question that emerges is as to whether the above aspects makes out a case warranting invocation of power under section 482 of Cr.PC.
witnesses as if such evidence is being examined during the course of trial.
Supreme Court was pleased to observe as follows;
CRL.MC No.5927 of 2014 10
“21. Based on the above precedent, the High Court while exercising its powers under Section 482 of the Cr.PC to quash the FIR instituted against the second respondentaccused should have applied the following tests; i)whether the allegations made in the complaint, prima facie constitute an offence; and ii) whether the allegations are so improbable that a prudent man would not arrive at the conclusion that there is sufficient ground to proceed with the complaint. …..”
above, it can be seen that, the scope for
interference in the matter at this stage is very less. It is true that, contents of the FIR
reveals that, the proceeding was initiated on the impression that, the petitioner was conducting business of money lending without a proper license, which is later found to be baseless. However, it is seen that, during investigation conducted on the basis of the documents seized from the petitioner, certain allegations of molestation of certain persons, who had borrowed amounts from the petitioner are revealed and an investigation is going on in relation to the
CRL.MC No.5927 of 2014 11
same. Though the said allegations are seriously
disputed by the petitioner, I am not in a position to examine the sustainability of the
same at this juncture. First of all, the statements made by the aforesaid witness are not before me at the moment and what is available is
only the report of investigating officer indicating the same. Unless the contents of the statements of the witness are examined, the veracity of the same cannot be ascertained.
M.P v. Surendra Kori [2012 (4) KLT Suppl. 35 (SC)], it was held as follows;
“ The High Court in exercise of its powers under section 482 CrPC does not function as a Court of Appeal or Revision. This court has, in several judgments held that inherent jurisdiction under Section 482 CrPC, though wide, has to be used sparingly, carefully and with caution. The High Court, under section
CRL.MC No.5927 of 2014 12
482, should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of wide magnitude and cannot be seen in their true perspective without sufficient material.”
of the above principle, it can be seen that, the matter is under investigation and at the moment the evidence leading to the allegations are not before me. From the nature of the allegations, as contained in the report of the investigating officer, it cannot be concluded that, no prima facie case is made out for attracting the offence under section 13 of the KML Act. If this court is interfering in the proceedings pursuant to Annexure A3 FIR at this juncture, it would close the doors for the investigating agency to complete the investigation and would be left with no opportunity to bring the incriminating materials, if any, available against the accused.
CRL.MC No.5927 of 2014 13
On the other hand, even if the investigation is allowed to be proceeded, the contentions raised by the petitioner as to the lack of veracity of the statement of witness, would still be available to the petitioner, as it would be possible for him to prove his innocence at the later stage of the proceedings. In such circumstances, it is only just and proper to
permit the investigating officer to complete the investigation and submit a final report, while leaving open all the contentions and remedies available to the petitioner, by way of moving this court under section 482 Cr.PC against such
final report or to face the trial and to
establish his innocence based on evidence.
view that, an interference of this court is not warranted at this stage of the proceedings.
Accordingly, the Crl.M.C is dismissed, without prejudice to the rights, contentions and remedies of the petitioner, to challenge the final report,
CRL.MC No.5927 of 2014 14
to be filed by the investigating officer in Crime
No.1317/2014 of Kundara Police Station.
Sd/-
ZIYAD RAHMAN A.A. JUDGE
pkk
CRL.MC No.5927 of 2014 15
PETITIONER’S EXHIBITS:
| 1. ANNEXURE | A1: THE PHOTOCOPY OF THE MONEY LENDING LICENCE NO.32020469526 |
|---|---|
| 2. ANNEXURE | A2: THE PHOTOCOPY OF THE E-CHALAN RECEIPT ISSUED FROM THE COMMERCIAL TAXES DEPARTMENT |
| 3. ANNEXURE | A3: THE CERTIFIED COPY OF THE F.I.R IN CRIME NO.1317 OF 2014 OF KUNDARA POLICE STATION |
| 4. ANNEXURE | A4: THE PHOTOCOPY OF THE LETTER OF THE POLICE OFFICER IN HIS OWN HANDWRITING |
| 5. ANNEXURE | A5: THE PHOTO COPY OF THE PLAINT IN O.S.NO.635/2012 |
| 6. ANNEXURE | A6: PHOTOCOPY OF THE INFORMATION DATED 14.8.2014 RECEIVED FROM THE OFFICE OF THE ASSISTANT COMMISSIONER, COMMERCIAL TAXES DEPARTMENT. |
| 7. ANNEXURE | A7 SERIES: THE PHOTOCOPY OF THE RECEIPTS OF CERTAIN PRIVATE FINANCES. |
| 8. ANNEXURE | A8: THE PHOTOCOPY OF THE GOLD LOAN RECEIPT OF KOLLAM DISTRICT CO-OPERATIVE BANK |
| 9. ANNEXURE | A9: THE PHOTOCOPY OF THE GOLD LOAN RECEIPT OF SCHEDULED BANK, FEDERAL BANK LTD. |
| 10.ANNEXURE | A10. THE PHOTOCOPY OF THE GOLD LOAN RECEIPT OF STATE BANK OF INDIA. |
| 11.ANNEXURE | A11. THE PHOTOCOPY OF THE LETTER ISSUED FROM THE KUNDARA POLICE STATION. |
//TRUE COPY//
SD/P.S. TO JUDGE
3 issues framed by the court
Whether the High Court should quash the FIR under Section 482 CrPC given that the petitioner holds a valid license but allegations of debtor molestation exist.
Whether the investigating officer has completed the investigation or if the allegations warrant closing the case at this stage.
Whether the veracity of witness statements regarding harassment can be examined in proceedings under Section 482 CrPC.
Colour shows how this judgement treated each authority
Mahendra v. State of KarantakaRelied on¶68
Mahendra v. State of Karantaka [2021(6) KLT Online 1128 (SC)]
State of M.P v. Surendra KoriRelied on¶80
State of M.P v. Surendra Kori [2012 (4) KLT Suppl. 35 (SC)]
P.G.KOSHY PANICKER
STATE OF KERALA
SUB INSPECTOR OF POLICE KUNDARA
ZIYAD RAHMAN A.A.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
