BIJU, S/O. SIVARAJAN vs STATE OF KERALA

Petitioner seeks a relief under Sec.482 of Cr.P.C .

The relief he seeks is to quash a criminal prosecution against him.

The 2nd respondent filed a complaint before the Judicial Magistrate-I, First Class, Neyyattinkara under Sec.190 of Cr.P.C . The complaint was forwarded to the Ariyancode police station under Sec.156(3) of Cr.P.C . An FIR was registered. It was registered under Secs 120B, 196, 209, 211, 420 and 506 of IPC and also under Sec.17 of the Kerala Money Lenders Act, 1958 (for short the Act).

Annex-A1 and annex-A2 are copies of the complaint and the FIR respectively.

Heard the learned counsel for the petitioner and the learned public prosecutor. The 2nd respondent to whom notice was issued from this court did not appear.

The petitioner is shown as the 2nd accused in annex-A2 FIR. The allegations in annex-A1 complaint are the following : The 2nd respondent was in need of money for the treatment of her husband. The former therefore approached the petitioner and the 1st accused for a loan of Rs.50,000/-. The amount was given on execution of a sale deed in respect of the property of the 2nd respondent and also against a post-dated cheque.

The sale deed was executed in favour of the 1st accused. The cheque was issued to the petitioner by the son of the 2nd respondent. When the amount was attempted to be repaid, both the 1st accused and the petitioner refused to receive the same.

Thereby they committed the offences alleged against them.

The offences alleged against the petitioner and the co-accused are those punishable under Secs 120B, 196, 209, 211, 420 and 506 of IPC and also under Sec.17 of the Act. The learned counsel for the petitioner submits that at no stretch of imagination the allegations in the complaint could be said to disclose commission of any of the offences shown in the complaint and the FIR.

One of the offences alleged against the petitioner is the one punishable under Sec.17 of the Act.

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 is a punishable offence under Sec.17 of the Act. Sec.3 of the Act insists on a licence for doing money lending business. Sec.2(7) defines the term "money-lender" to mean 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. The complaint does not contain any allegation to attract the definition of the term "money-lender". A solitary instance of granting a loan of Rs.50,000/- is the sole allegation in the complaint. Therefore the provisions of the Act are not attracted.

Another offence alleged is the one punishable under Sec.196 of IPC . Whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricated shall be punished under Sec.196 of IPC . It is not alleged how and when the petitioner used as evidence false or fabricated evidence. He filed a complaint under Sec.138 of the Negotiable Instruments Act (N.I.Act for short). The complaint admits that the cheque was issued to him by the son of the 2nd respondent. The complaint filed under Sec.138 of the N.I.Act was not even terminated when annex-A1 was filed. Sec.196 of IPC is also out of question.

Another offence shown in the FIR is the one punishable under Sec.209 of IPC . Whoever fraudulently or dishonestly, or with intent to injure or annoy any person, makes in a court of justice any claim which he knows to be false is a punishable offence under Sec.209 of IPC . There is no such allegation. What the petitioner did do was only to file a complaint under Sec.138 of the N.I

Act. Sec.209 is also not attracted in any manner.

Sec.211 of IPC is the next offence alleged. The said penal provision is attracted when with intent to cause injury to any person, a person institutes or causes to be instituted any criminal proceedings against that person, or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceedings or charge against that person. Sec.211 is the penal provision for false accusation. Admittedly the petitioner did not prosecute the 2nd respondent in any court of law.

Therefore Sec.211 of IPC too is not attracted.

Sec.506 of IPC is also out of the reach of the 2nd respondent. There is no allegation in the complaint against the petitioner to suggest criminal intimidation as defined in Sec.503 of

IPC .

What remains is Sec.420 of IPC . The allegation in the complaint touching cheating is made against the 1st accused. It is alleged that he had taken a sale deed from the 2nd respondent undertaking to re-convey the property when the loan was discharged. Going by the complaint, the 1st accused was the person who refused to re-convey the property. The petitioner is not in the picture so far as the said allegation is concerned.

It is seen that annex-A1 complaint, so far as the petitioner is concerned, is an empty complaint.

There is no material in it against him to prosecute him for any offence. A criminal prosecution against such a person does amount to abuse of process of court. It appears that the 2nd respondent is fully aware that her complaint against the petitioner is baseless. That must be the reason why the 2nd respondent did not respond to the notice issued by this court. The Crl.M.C deserves to be allowed.

The criminal miscellaneous case is allowed. All proceedings against the petitioner in crime no.318/2013 of Ariyancode police station are quashed.