IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 9TH NOVEMBER 2009 / 18TH KARTHIKA 1931 Crl.MC.No. 2152 of 2009() ------------------------------------ CC.1310/2008 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, KASARAGOD. CRIME NO.332/2008 OF HOSDURG POLICE STATION. .................... PETITIONER(S): ---------------------- K. KRISHNAN, AGED 59, S/O.KANNAN MANIYANI, R/AT VYSHAKH, THULICHERY, AJANUR VILLAGE, MANIKKOTH P.O., KASARAGOD DIST. BY ADV. MR.KODOTH SREEDHARAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, THROUGH THE STATION HOUSE OFFICER, HOSDURG, REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. * ADDL. R2 IMPLEADED ADDL. R2: K. ABDUL KHADER, AGED 57 YEARS, S/O.POKKER ALI, SHEMINAS, BANKALAM, MADIKKAI VILLAGE, KASARAGOD DISTRICT. * ADDL. R2 IMPLEADED AS PER ORDER DATED 16/07/2009 IN CRL.MA.3855/2009 IN CRL.MC.2152/2009. R1 BY PUBLIC PROSECUTOR MR.S.U. NAZAR. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2152 OF 2009 ------------------------------------------ Dated 9th November 2009 O R D E R Based on a complaint received, from Abdul Khader to the effect that the petitioner is lending money on getting blank cheque and stamp papers as security, Deputy Superintendent of Police, Kanhangad instructed Sub Inspector of police, Hosdurg to conduct a search. Sub Inspector conducted a search on 2/6/2008 in the house of the petitioner and in his presence seized a signed blank stamp paper for Rs.50/- where the name of Abdulkhader, his signature and thumb impression were found, registered Crime No.332/2008 of Hosdurg police station under Annexure-III FIR on the allegation that petitioner committed offences under Sections 17, 18A and sub Section 6A of Section 18A of Kerala Money Lenders Act. Thereafter, Annexure-II final report was later filed after investigation. It was taken cognizance for the offence under Section 17 and 18A and 6(A) of Money Lenders Act by Judicial First Class Magistrate-I, Crmc 2152/09 2 Hosdurg as C.C.1310/2008. This petition is filed under Section 482 of Code of Criminal Procedure to quash the final report and the cognizance taken contending that none of the offences are attracted and in the absence of a case that petitioner is a pawnbroker, he cannot be prosecuted for solitary action of giving a loan. 2. Though as directed, petitioner impleaded Abdulkhader, the de facto complainant as second respondent and notice was served on him, he did not appear. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. As per Annexure-III FIR, crime was registered based on the search conducted by Sub Inspector of Police on 2/6/2008, whereunder a signed blank stamp paper was seized from the house of the petitioner. Final report does not disclose any other evidence or material to show that any other petitioner had granted loan or obtained security in any other case. Instead the only allegation is with regard to the transaction with second respondent who is shown as third prosecution witness in the final report on the allegation that from him a fifty rupee signed blank stamp paper was allegedly obtained by the petitioner as security for the Crmc 2152/09 3 loan. 3. Section 17 provides penalty for carrying on business without licence or in violation of the conditions of licence. Under the said section whoever carries on the business of money-lending without a licence or in violation of the conditions of the licence or otherwise than in conformity with the terms and conditions of the licence shall be punishable as provided therein. Therefore, to attract Section 17, an accused must have carried on business of lending money in violation of the conditions of the licence. Section 18 provides that whoever contravenes any of the provisions of the Act or of any rule made thereunder or of any terms or conditions of a licence granted or deemed to be granted thereunder or make claim or a statement which is false or which he does not believe to be true, shall if no other penalty is provided elsewhere is liable for the punishment provided thereunder. 3. Sub Section 6A of Section 18A provides that a pawnbroker who takes from the pawner any power of attorney or any other document with blank entries shall be punishable for the offence as provided under Section 18A. To attract Sub section 6A petitioner shall Crmc 2152/09 4 be a pawnbroker and the second respondent a pawner. Pawner is defined under clause 7B of Section 2 as means a person delivering an article for pawn to a pawnbroker. There is no allegation that the second respondent has delivered any article in pawn. Even otherwise when there is no case that petitioner is a pawnbroker, there is no question of attraction of Sub Section 6A of Section 18A of the Act. 4. Pawnbroker is defined under clause (7A) of Section 2 as follows. “7A. Pawnbroker means a person who carries on the business of taking goods and chattles in pawn for a loan.” Therefore, unless a person carries on the business of taking goods and chattles in pawn for a loan, he will not be a pawnbroker as defined under the Act. There is no allegation in Annexure-II final report that petitioner is carrying on the business of taking goods and chattles in pawn for a loan. Therefore, he cannot be a pawnbroker as defined under clause 7A of Section 2 of the Act. 5. Money lender is defined under clause 7 of Section 2, means a person whose main or subsidiary Crmc 2152/09 5 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, or his principal place of business and a pawn broker. In the absence of material to show that main or subsidiary occupation of the petitioner is business of advancing and realising loans or acceptance of deposits and in the course of such business, even of he had granted a loan to second respondent, by that solitary transaction he will not be a money lender as defined under clause 7 of Section 2 also. If that be so, he cannot be prosecuted either for the offence under Section 17 or Sub Section 6A of Section 18A of Money Lenders Act. In such circumstances, continuation of the prosecution is only an abuse of process of the court. Petition is allowed. C.C.1310/2008 on the file of Judicial First Class Magistrate-I, Hosdurg is quashed. M.SASIDHARAN NAMBIAR, JUDGE. uj.