Bangalore District Court
Mahendrakumar K H Pi vs P B Ramakrishna on 25 April, 2024
1
KABC030077912021 Digitally signed
by R
R MAHESHA
MAHESHA Date:
2024.04.25
17:35:32 +0530
IN THE COURT OF THE IX ADDL.CHIEF
METROPOLITAN MAGISTRATE, AT BENGALURU.
Dated this the 25 th day of April 2024
Present : Sri.R.Mahesha.
B.A.L., LL.B.,
IX Addl.C.M.M., Bengaluru.
JUDGMENT
1.C.C.No. 2270/2021
2.Date of offence 27/06/2019
3.Complainant State by RMC Yard
Police Station.
4.Accused Ramakrishna.P.B.
S/o Basappa,
Aged about 48 years,
R/at No.31, 2nd floor,
4th Block, 6th Cross,
Nandini Layout,
Bengaluru.
5. Offences U/Sec.5, 39, 41(A) of Karnataka
complained of Money Lenders Act 1961, &
section 3 & 4 of the Karnataka
Prevention of charging Exorbitant
interest Act 2004 and Sec.420 of
IPC.
2
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted.
8.Date of Order 25-04-2024.
The Police Sub-Inspector of RMC Yard Police Station,
Bengaluru has filed this charge sheet against the accused for the offences punishable U/Sec.5, 39, 41(A) of Karnataka Money Lenders Act 1961, & section 3 & 4 of the Karnataka Prevention of charging Exorbitant interest Act 2004 and Sec.420 of IPC.
02. The brief facts of the prosecution case are as under:
The prosecution has alleged that, on 27-06-2016 at about 12.00 am when CW.1-Mahendrakumar K.H., Police Sub-Inspector was in the Police Station got credible information that, some unknown person was doing illegal money lending business without obtaining any license from the Government and receiving excess interest i.e., 5% to 12% from the public and cheated to the public near RMC Yard Market, within the limits of RMC Yard Police Station. Immediately, CW.1 called panchas to the station 3 and rushed to the spot along with CW.2 to 11 and at the spot they carefully observed and came to know that some unknown person was recovering money from vendors forcibly. Thereafter, CW.1 caught hold the said unknown person and enquired him and came to know his name as P.B.Ramakrishna S/o.Basappa and also came to know that he was involved in the business of lending money to the vendors and charging exorbitant interest to them without having valid licence. Further, it is the case of the prosecution that CW.1 had seized the original site papers , blank cheques and blank e-stamp paper from the possession of accused in the presence of panchas. Thereafter, CW.1 rushed to the Police Station and lodged the complaint against the accused. Based on his complaint FIR came to be registered in Cr.No.127/2019 for the offences punishable U/Sec.5, 39, 41(A) of Karnataka Money Lenders Act 1961, & section 3 & 4 of the Karnataka Prevention of charging Exorbitant interest Act 2004 and Sec.420 of IPC. Thereafter, police officers conducted investigation and filed charge sheet against the accused for the above said alleged offences.4
03. After registration of the FIR the accused has been arrested and produced before this Court. Later he has been enlarged on bail. After filing of the charge sheet this Court has taken cognizance of the offences punishable U/Sec.5, 39, 41(A) of Karnataka Money Lenders Act 1961, & section 3 & 4 of the Karnataka Prevention of charging Exorbitant interest Act 2004 and Sec.420 of IPC. The copy of the charge sheet has been furnished to the accused as per Sec.207 of Cr.P.C. Subsequently, the charge has been framed and read over to the accused. But the accused has pleaded not guilty and claimed to be tried. Hence, the case has been posted for prosecution evidence.
04. The prosecution in order to prove its case has examined in all 3 witnesses as PW.1 to PW.3 and got marked 33 documents as Ex.P.1 to Ex.P.33. After conclusion of the prosecution evidence the statement of the accused u/Sec.313 of Cr.P.C. has been recorded. He has denied the incriminating circumstances appearing in the prosecution evidence. He has not chosen to adduce his defence evidence.
5
05. Heard the arguments of both sides. Perused the entire documents placed on record.
The counsel of accused has relied the below recent decisions of Hon'ble High Court of Karnataka;
1. Crl.Petition NO. 101569/2016 Clubbed With (CW) Crl. Petition NOs. 100759/2016, 100124/2017, 101566/2016, 100003/2017, 100005/2017, 100004/2017, 101491/2015, 101402/2016, 100884/2016, 100883/2016, 100882/2016, 101368/2016, 101452/2016, 101242/2016, 100718/2016, 100793/2016, 101752/2015 100624/2016.
2. Crl.Petition NO. 100916/2023, Srikanth Vs. State of Karnataka and others
06. The points that arise for my consideration are as under:
(1)Whether the prosecution proves beyond reasonable doubt that, on 27-06-2016 at about 12.00 am when CW.1-
Mahendrakumar K.H., Police Sub-Inspector was in the Police Station got credible information that, some unknown person was doing illegal money lending business without obtaining any license from the Government and receiving excess interest i.e., 5% to 12% from the public and cheated to the public and thereby committed an offence punishable under Sec.5, 39, 41(A) of Karnataka Money Lenders Act 1961, & section 3 & 4 of the Karnataka Prevention of 6 charging Exorbitant interest Act 2004 and Sec.420 of IPC ?
(2) What order ?
07. My findings on the above points are as under:
Point No.1 : In the Negative,
Point No.2 : As per final order, for the following :
REASONS
08. Point No.1 :- It is well settled that in a criminal case the entire burden of proof rests upon the prosecution and the accused need to prove nothing. Suffice for the accused to create doubt about the case of the prosecution and the reliability of the witnesses for the prosecution.
09. It is the case of the prosecution that, on 27-06-2016 at about 12.00 am when CW.1-Mahendrakumar K.H., Police Sub-Inspector was in the Police Station got credible information that, some unknown person was doing illegal money lending business without obtaining any license from the Government and receiving excess interest i.e., 5% to 12% from the public and cheated to the public. 7 Therefore, the burden is on the prosecution to prove the guilt of the accused. As already stated supra, the prosecution in order to prove its case has examined in all 3 witnesses as PW.1 to PW.3 and got marked 33 documents as Ex.P.1 to Ex.P.33.
10. Before discussing the evidence adduced by the prosecution, it is necessary to have a look into the offences charged against the accused. As already stated supra, the Investigating Officer has filed the charge sheet against the accused for the offences punishable u/Sec. under Sec.5, 39, 41(A) of Karnataka Money Lenders Act 1961, & section 3 & 4 of the Karnataka Prevention of charging Exorbitant interest Act 2004 and Sec.420 of IPC is penal provision which prescribes the punishment for molestation. Sec.39 of the Act is general provision regarding the penalties. Sec.3 of the Karnataka Prohibition of Charging Exorbitant Interest Act prohibits charging Exorbitant Interest. Sec.4 of the said Act prescribes punishment for contravention of Sec.3.
8
11. The prosecution has been examined prosecution has been examined CW.2 as PW.1, CW.5 as PW.2 and CW.6 as PW.3, they being Police Officers and accompanied raiding Police Officers with CW.1. PW.1 to 3 have specifically testified before this court that, on 27.06.2019 CW.1 got credible information that, the person by name P.B.Ramakrishna was doing illegal money lending business without obtaining any license from the Government and receiving excess interest from the public and cheated to the public. Further, they stated before this court that, on the very same day at about 3.00 they went to alleged place of incident i.e., ' Basaveshwara Swamy Real Estate Office' and CW.7 to 9 were enquired the person by name Ramakrishna, he told them that, he has not taken any license from the Government. Further, it is the case of the prosecution that CW.1 had seized the 5 coloured note books, blank cheques, blank e-stamp paper, Hangami hakku patra from the possession of accused in the presence of panchas. After that, they seized entire items by drawing Ex.P.1 and they returned with accused along with seized articles and produced before CW.16. Further, 9 CW.16 prepared FIR, original copy of FIR submitted before Jurisdictional trial court and copy of FIR forwarded to his Police Officers. After that, he handed over this case file to CW.2. Further, PW.2 deposed before the court that, he arrested accused and followed directions of Hon'ble court and he got proper surety and recorded voluntary statement of accused. He came to conclusion that, the accused was doing illegal money lending business without obtaining any license from the Government and receiving excess interest from the public and cheated to the public. He identified the sized articles in future. At this stage, Learned Sr.A.P.P. has pryayed time to produce documents. Further, PW.1 to 3 testified before this court that, he identified Ex.P.1 to 33 and accused. They have been subjected to cross examination by accused.
12. The counsel for accused during course of arguments, he mainly attacked case of prosecution, the Police Officers have no right to enter premises and search seized documents, they are not the authorized officers and 10 the counsel for accused relied decisions of Hon'ble High Court of Karnataka in Crl.Petition No.101569/2016 Clubbed With (CW) Crl. Petition NOs. 100759/2016, 100124/2017, 101566/2016, 100003/2017, 100005/2017, 100004/2017, 101491/2015, 101402/2016, 100884/2016, 100883/2016, 100882/2016, 101368/2016, 101452/2016, 101242/2016, 100718/2016, 100793/2016, 101752/2015 100624/2016.
2. Crl.Petition NO. 100916/2023, Srikanth Vs. State of Karnataka, other 17 cases clubbed with Principal case Hon'ble High Court of Karnataka clearly held. As per section 15 of the Karnataka Money Lender's Act, 1961, it is only the register or assistant Registrar or any officer authorized by the State Government in this behalf may enter into the premises of the petitioners to require the production of records or documents and they are the only persons, who are having the power to entry, inspection and seizure of documents and in the present case, it is not the register or the assistant register or any officer authorized by the State Government in that behalf who entered the premises of 11 petitioners, but only the police who is the complainant along with his staff illegally enter into the premises of petitioners.
Further, the counsel for accused took this court notice about section 5 of Karnataka Prohibition of Charging Exorbitant Interest Act and section 15 of Karnataka Money Lender's Act.
1[15. Power of authorised officer to require production of records or documents and power of entry, inspection and seizure--
(1) The Registrar, Assistant Registrar or any Officer authorised by the State Government in this behalf may, for the purpose of verifying whether the business of money-lending is carried on in accordance with the provisions of this Act, enter the premises of the money lender or any person who in his opinion is carrying on the business of money-lending and call upon him to produce any record or document relating to such business and every such money lender or person shall allow such inspection and produce such record or document.
(2) The Registrar, Assistant Registrar or the other officer referred to in sub-section (1) may, for the purposes of the said sub-section, search the premises and seize any record and document as may be necessary. The record or document seized shall be retained only for such period as may be necessary for the 12 purposes of examination, prosecution or other legal action:
Provided that the provisions of sections 100 and 102 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) shall, so far as may be, apply to such search and seizure:
Provided further that for every record or document seized, appropriate acknowledgement shall be given to the person from whose custody it is seized.
(3) The Registrar, Assistant Registrar or the other officer referred to in sub-section (1) shall also have power to summon and examine the money lender or any person who in his opinion is in a position to furnish relevant information.]1
5. Deposit of money and presentation of petition to court and the procedure thereof.-
(1) A debtor may deposit the money due in respect of a loan received by him from any person together with interest at the rate fixed by the State Government under 4section 28 of the Karnataka Money Lenders Act, 1961 into the Court having jurisdiction, along with a petition to record that the amount deposited is in full or part, satisfaction of. the loan including the interest therefor, as the case may be.
(2) The Court shall, on receipt of a petition under sub-section (1), refer a copy of the petition to the person mentioned in the petition, directing him to give his replies within a period of fifteen days as may be granted by the Court. The Court may, after due inquiry 13 and after considering the versions of both the parties, pass orders recording the satisfaction of the loan and interest therefor in full or in part, as the case may be.
In this back drop, I have meticulously gone through above relevant provisions of act and law laid down by the Hon'ble High Court of Karnataka in the decisions relied by Learned accused advocate as rightly pointed out by Learned accused in the instant case, As per section 15 of the Karnataka Money Lender's Act, 1961, it is only the register or assistant Registrar or any officer authorized by the State Government in this behalf may enter into the premises of the accused to require the production of records or documents and they are the only persons, who are having the power to entry, inspection and seizure of documents and in the present case, it is not the register or the assistant register or any officer authorized by the State Government in that behalf who entered the premises of accused, but only the police who is the complainant along with his staff illegally enter into the premises of accused . Further, it appears from section 5 of Karnataka 14 Prohibition of Exorbitant Interest Act 2004, which provides procedures to be followed by the borrower for the repayment of the loan amount and initiation of the criminal case. Further, it appears from prosecution materials case registered against accused under section 420 of IPC, it shows that, there is a credible information to police even for the commission of cognizable offence when that is so, the police ought to have registered the FIR before proceeding to the spot. In the instant case, the Police Officers have non compliance of mandatory requirement of section 154 (1) of Cr.P.C., without registering the FIR and without making the entry of the information received in the diary kept in the concern Police Station. The police machinery proceeded to this spot, enter into the premises of the accused and seized the documents and alleged to have drawn the mahazar at the spot and arrested the accused. After completing all these process, they went back to the Police Station and thereafter lodged the complaint and registered the FIR. After entire investigation, almost completed. Thereafter, complaint was lodged and FIR was registered which is unknown to the provisions of Criminal 15 Procedure Code. Further, it appears from the decisions of Hon'ble High Court of Karnataka in case crl petition No.100916/2023 in case between Srikanth Vs. State of Karnataka and others, the Hon'ble High Court of Karnataka has discussed Hon'ble Apex Court case i.e., Lalitha Kumari Vs. Government of Uttara Pradesh, Hon'ble Apex Court held in this case that, " in case of receipt of information regarding cognizable offence and as per section 154(1) of Cr.P.C., registration of the FIR at the earliest point of time i.e., immediately after receipt of such information, is general rule. But, in these matters though such information regarding commission of cognizable offence is said to have been received by the police, even then there is no registration of the FIR immediately after the receipt of such information and even there is no material produced by the prosecution in these cases that they have entered atleast the information received. In the diaries kept in the said Police Stations and what is the said information, no documents are produced before the court. Therefore, the mandatory 16 requirement of section 154(1) of Cr.P.C., is not followed by police before proceeding to the spot on the basis of said information.
In the above back drop, the present case facts and circumstances of this case are analyzed by this court, the specific case of prosecution that, CW.1 being Police Officer has got credible information about charging of exorbitant interest and doing finance business without obtained valid license and he illegally doing finance business by collecting security documents, therefore, CW.1 and his staff conducted raid and collected Ex.P.1 to 33 documents from the possession of accused. As per section 15 of the Karnataka Money Lender's Act, 1961, it is only the register or assistant Registrar or any officer authorized by the State Government in this behalf may enter into the premises of the accused to require the production of records or documents and they are the only persons, who are having the power to entry, inspection and seizure of documents and in the present case, it is not the register or the assistant register or any officer authorized by the State 17 Government in that behalf who entered the premises of accused, but only the police who is the complainant along with his staff illegally enter into the premises of accused. As per section 5(1) the Karnataka Money Lender's Act, the borrower has filed petition before jurisdictional court having jurisdiction to take necessary action against debtor. In the instant case, there has been no such complaint to the jurisdictional court by the borrowers alleging that, the accused had charged exorbitant interest as stated in the complaint. Thus, initiation of the prosecution against accused on the basis of police report, is illegal. Further, it appears from prosecution papers that, registration of the complaint by CW.16 is without taking recourse section 5 of the exorbitant interest act 2004 and such further proceedings would be illegal. The presence case facts and circumstances and decisions relied by accused facts and circumstances of this case are squarely similar and this court being guided by law laid down by the Hon'ble High Court of Karnataka which are relied by accused are squarely applicable to the case on hand and this court 18 being guided by law laid down in the above decisions and this court came to conclusion that, initiation of the prosecution against accused on the basis of police report is illegal and without taking recourse section 5 of the exorbitant interest act 2004 and further proceedings would be illegal. It is further relevant to note that the prosecution has not produced any evidence to show that the accused was involved in charging exorbitant interest. Further it is relevant to note that the prosecution is itself not sure that whether the accused was charging interest at the rate of 5% to 12%. Therefore, in the absence of any evidence it cannot be assumed or presumed that the accused was charging exorbitant interest. Further, it is relevant to note that, the prosecution has cited CW.1 to 17 in charge sheet to prove the guilt of accused, out of which, the prosecution has able to examine PW.1 to 3 rest of CW.1, 7, 8 to 17 are not stepped into witness box. Therefore, this court took prayer of Learned Senior APP rejected and CW.1, 7, 8 to 17 are dropped out vide order dated 15.12.2023. Non examination of material witnesses by the prosecution is also creates serious doubt. From view 19 in any angle, the prosecution has failed to make out a case beyond all reasonable doubt and the material on record does not fulfill the pre- requirements to attract provisions under which the charge sheet is submitted in this matter. Hence this court clearly came to conclusion that, the prosecution has utterly failed to prove the charges levelled against the accused beyond reasonable doubt. Accordingly, I answer Point No.1 in the Negative .
13. Point No.2: For the afore said reasons, I proceed to pass the following:
ORDER Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted for the offences punishable U/Sec.5, 39, 41(A) of Karnataka Money Lenders Act 1961, & section 3 & 4 of the Karnataka Prevention of charging Exorbitant interest Act 2004 and Sec.420 of IPC.
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and 20 thereafter same shall stands cancelled automatically.
(Dictated to the stenographer directly on computer, corrected directly on computer and then pronounced by me in open court on this the 25th day of April 2024).
(R.Mahesha) IX Addl.Chief Metropolitan Magistrate, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED ON
BEHALF OF THE PROSECUTION:
PW.1 : Sarthik
PW.2 : Dinesh
PW.3 : Asharani
LIST OF DOCUMENTS MARKED ON
BEHALF OF THE PROSECUTION:
Ex.P.1 : Panchaname
Ex.P.2 to 7 : Cheques
Ex.P.8 : Postal cover
Ex.P.9 : Book
Ex.P.10 : Blank cover
Ex.P.11 : Book
Ex.P.12 : Blank cover
Ex.P.13 : Book
Ex.P.14 : Blank cover
Ex.P.15 : Book
Ex.P.16 : Blank cover
Ex.P.17 : Book
Ex.P.18 : Blank cover
21
Ex.P.19 : Authorization letter
Ex.P.20 : Blank cover
Ex.P.21 : Sale deed
Ex.P.22 : Blank cover
Ex.P.23 & 24 : Cheques
Ex.P.25 & 26 : e-stamp papers
Ex.P.27 : Blank cover
Ex.P.28 : Blank e-stamp paper
Ex.P.29 : Blank cover
Ex.P.30 : Cheque
Ex.P.31 : Blank e-stamp paper
Ex.P.32 : Blank cover
Ex.P.33 : Cover
List of material objects marked on behalf of the prosecution:
-NIL-
List of witnesses examined on behalf of the defence:
-NIL-
List of documents marked on behalf of the defence:
-NIL-
List of materials marked on behalf of the defence:
-NIL-
IX ADDL.C.M.M. Bengaluru.22
CC.2270/2021 Judgment pronounced in the open court (Vide separate order) ORDER Acting under Section 248(1) of Cr.P.C., accused is hereby acquitted for the offences punishable U/Sec.5, 39, 41(A) of Karnataka Money Lenders Act 1961, & section 3 & 4 of the Karnataka Prevention of charging Exorbitant interest Act 2004 and Sec.420 of IPC.
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stands cancelled automatically.
IX ADDL.C.M.M. Bengaluru.
23