IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 CRL.MC.NO. 231 OF 2011() -------------------------------------- CC.588/2010 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-I, PONNANI .................... PETITIONER(S): ACCUSED --------------------------------------- C.PRADEEP KUMAR,POKKANDATH HOUSE, EDAPPALL THUYYAM.P.O,MALAPPURAM DISTRICT, PIN-679576. BY ADV. SRI.M.AJAY SRI.ABHIJETT LESSLI RESPONDENT(S): STATE & INVESTIGATION OFFICER ------------------------------------------------------------------------------- 1. THE STATE OF KERALA(REPRESENTED BY ITS PUBLIC PROSECUTOR,HIGH COURT OF KERALA), ERNAKULAM-682031. 2. THE CIRCLE INSPECTOR OF POLICE,PONNANI POLICE STATION,PONNANI,MALAPPURAM DISTRICT, PIN-679577. BY PUBLIC PROSECUTOR SHRI MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.231 of 2011 ==================================== Dated this the 03rd day of February, 2011 O R D E R Petitioner is accused in Crime No.360 of 2010 of Ponnani police station and C.C. No.558 of 2010 of the court of learned Judicial First Class Magistrate, Ponnani for offences punishable under Sections 3, 17, 18A and 18A(6A) of the Money Lenders Act (for short, “the Act”). It is alleged that petitioner who is a Government servant, without authority under the Act is engaged in money lending and for the said purpose has taken from the customers their title deeds, blank cheques and blank stamp papers. Respondent No.2, Circle Inspector, Ponnani is said to have searched house of petitioner on 25.07.2010 and seized the offending documents. After investigation he has filed Annexure-IV, final report. It is contended by learned counsel that no offence as alleged is made out even going by the entire records produced by the prosecution. It is pointed out that no offensive material is seized from the petitioner indicating that he has committed any offence as alleged. In such a situation prosecution of petitioner is unwarranted. Interference under Section 482 of the Code of Criminal Procedure (for short, “the Code”) is requested. CRL.M.C. No.231 of 2011 -: 2 :- 2. Learned Public Prosecutor submitted that altogether 11 witnesses were questioned though only 7 of them are cited as witnesses in the list of witnesses appended to the final report. It is submitted by the learned Public Prosecutor that one Dhanalakshmi (not cited as a witness in the list of witnesses) has stated when questioned by the police with reference to the document relating to her family property that the said property was sold to one Ashraf (CW7) but she does not know how the said document happened to be in the custody of petitioner. 3. Section 3 of the Act states that a money lender is to obtain licence. 'Money lender' is defined in Sec.2(7) of the Act as meaning a person whose main or subsidiary occupation is the business of advancing and realizing 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 of office or branch offices or a laison office or any other office by whatever name called or his principal place of business and a pawn broker. 'Pawn broker' is defined in Section 2(7A) as meaning a person who carries on the business of taking goods and chattels in pawn for a loan. Section 17 of the Act deals with penalty for carrying on business without licence or in violation of the conditions of CRL.M.C. No.231 of 2011 -: 3 :- licence. Section 18A of the Act states that the act of pawn broker mentioned therein shall be punishable. Sub-sec.(4) deals with pawn broker who under any pretence purchases, except at a public auction any pledge while in pawn with him. Sub-sec.6A states about taking from the pawner any power of attorney or any other document with blank entries. 4. Primarily to attract of the offence attributed to the petitioner he should be shown to be a money lender or a pawn broker as stated in Sec.2(7) and 2(7A) of the Act. Annexure-I is the list of documents allegedly seized from the possession of petitioner. Though final report states that signed blank cheques were also seized from the possession of petitioner, going by Annexure-I, search memo and the list there was only one signed blank cheque allegedly drawn by CW6, brother-in-law of petitioner and all other documents were title deeds or photocopies of title deeds. No record showing that petitioner is either engaged in money lending or accepting pawn is produced. What then available is only the statement of CWs 5 to 7 the witnesses cited by the prosecution. Annexure-IX is the readable copy of statement of CW5. He states that the document (shown to him by the police officer and allegedly seized from the possession of CRL.M.C. No.231 of 2011 -: 4 :- petitioner) stands in his name which concerned 1½ cents meant for a way, that it was intended for providing a way to the property of petitioner as well, petitioner also had paid money (part of the sale consideration) and hence the said document was given to the petitioner for safe custody. C.W6 is another independent witness (readable copy of his statement is Annexure-X). He is the brother-in-law of petitioner who is said to have given the signed blank cheque to the petitioner (seized by the police). But it is seen that the Investigating Officer has not questioned C.W.6 with reference to the circumstances under which signed blank cheque happened to be in the custody of petitioner. He is seen to have stated that he is working abroad and came on leave (when he was questioned by the police). He stated that the document of title shown to him (by the police at the time of questioning) is of the property purchased by him and petitioner, his brother-in-law. The document is being kept in safe custody by the petitioner. C.W.7 is the last independent witness cited by the prosecution and the readable copy of his statement is Annexure-XI. He stated that he purchased 48 cents at Kalady and that Rajani, wife of petitioner and one Sreeja purchased property adjoining his property. He is acquainted with the petitioner. When the land CRL.M.C. No.231 of 2011 -: 5 :- was surveyed he was not at station and since the survey number of the property belonging to him and wife of petitioner (Rajani) are one and the same for the purpose of conducting resurvey he entrusted his title deed to the petitioner. He had not taken back that deed from the petitioner after resurvey was over. 5. Evidently statement of C.Ws.5 to 7 did not disclose either that petitioner is a money lender or pawn broker. I asked the learned Public Prosecutor whether Investigating Officer has recorded statement of any other person though not cited as witness for the prosecution which stated that petitioner is engaged in money lending or receiving pledge. Learned Public Prosecutor after perusal of the case diary stated about statement of Dhanalakshmi which I have stated above. That statement of Dhanalakshmi only leads to CW7, whose statement I have already referred to. Thus material on record are not at all sufficient to show or even raise a strong suspicion (so that a charge could be framed) that petitioner has committed the offence as alleged. In such a situation I do not consider it necessary to ask petitioner to face the procedure of trial. Having regard to the particular facts and circumstances of the case I am inclined to think that the extraordinary jurisdiction under Sec.482 CRL.M.C. No.231 of 2011 -: 6 :- of the Code has to be exercised. It is pertinent to note that no witness has stated that petitioner is engaged in money lending or pawn broking and no record indicating such money lending or pawn broking also is seized by the police officer. Resultantly, Criminal Miscellaneous Case is allowed and final report in Crime No.360 of Ponnani police station, cognizance taken thereon and proceeding against the petitioner in C.C.588 of 2010 of the court of learned Judicial First Class Magistrate, Ponnani are quashed. THOMAS P. JOSEPH, JUDGE. vsv