Kerala High Court
Sanu Sunny vs State Of Kerala on 28 November, 2017
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 28TH DAY OF NOVEMBER 2017/7TH AGRAHAYANA, 1939
Crl.MC.No. 5629 of 2015 ()
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CRIME NO. 107/2014 OF PUNALUR POLICE STATION , KOLLAM
PETITIONER(S)/ACCUSED:
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SANU SUNNY
S/O SUNNY, 'SANU BHAVAN', KANIR NIRAPPU,
KARUVALOOR, PUNALUR
BY ADVS.SRI.MANOJ RAMASWAMY
SMT.SANJANA R.NAIR
SMT.V.SREEJA
RESPONDENT(S):
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1. STATE OF KERALA
REPRESETNED BY THE PUBLIC PROSECUTO,
HIGH COURT OF KERALA, ERNAKULAM-682 031
2. SOFIA SALIM AGED 36 YEARS
W/O SALIM ,'SALMA MANZIL', VAZHAVILA,
VENCHEMBU PO,KARAVALOOR, PUNALUR-601 333
R2 BY ADV. SRI.ABDUL JALEEL.A
R2 BY ADV. SMT.M.A.SULFIA
R BY PUBLIC PROSECUTOR:SRI E C BINEESH
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
28-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 5629 of 2015 ()
APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE A1: TRUE COPY OF THE FIR NO. 107/14 DT. 128/1/14
PUNALUR POLICE STATION , KOLLAM DISTRICT
ANNEXURE A2; TRUE COPY OF THE APPLICATION FROM MONEY LENDERS
LICENCE
ANNEXUREA3: TRUE COPY OF THE MONEY LENDING LICENCE NO,
32020354293 DT. 6/2/14 ISSUED IN THE NAME OF THE PETITIONER
ANNEXURE A4: TRUE COPY OF THE FINAL REPORT DT. 30/6/14 IS CRIME
NO. 107/15 OF PUNALUR POLICE STATION
RESPONDENT(S)' EXHIBITS:NIL
True Copy / P A to Judge
SUNIL THOMAS, J.
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Crl.M.C.No.5629 of 2015
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Dated this the 28th day of November, 2017
ORDER
Petitioner herein stands arrayed as the accused in Crime No.107 of 2015 of Punalur Police Station for offences punishable under sections 294(b) and 420 of the Indian Penal Code and Section 3 of the Kerala Money Lenders Act.
2. The crux of the allegation of the de facto complainant as is revealed from the FI statement and also from the final report laid is that about 8 months prior to the lodging of the FIS on 18.01.2014, de facto complainant had obtained a loan from the petitioner herein. It was agreed to pay interest @Rs.10/- for every 100 rupees. It was alleged that at the time of passing of the consideration, the RC book of the vehicle, the title deeds, a signed blank cheque and two signed blank papers were also obtained. It is stated that interest was paid regularly. Subsequently, on 16.01.2013 at 5 p.m., petitioner herein allegedly waylaid the de facto complainant, abused her and demanded the money. Alleging that the petitioner herein has committed the offences punishable under the Act, complaint was laid and crime was registered. Final report was laid at the end of investigation for the above offences. The above criminal proceeding is initiated by the petitioner herein Crl.M.C.5629/15 2 on a premise that the prosecution is not legally sustainable. It was further contended that the offences alleged against the petitioner herein are not discernible from the facts disclosed.
2. Notice was served on the second respondent. The second respondent has appeared through the counsel.
3. Learned counsel for the petitioner invited my attention to the detailed FIS given by the complainant. It was stated that the tenor of the FIS indicates that the petitioner herein had voluntarily undertaken to enter into the money transaction on mutually agreed terms. The statement does not disclose that the de facto complainant has a case that she was cheated by the petitioner herein. Of course, the only contention she has now raised seems to be that exorbitant interest was claimed and offence under section 294(b) IPC was committed.
4. Regarding the offence under section 294(b) IPC, the only material on record is that, on the relevant day, petitioner herein waylaid the de facto complainant and abused her. The exact words allegedly used by the petitioner herein are not mentioned. There is also no further allegation that the words spoken were sufficient to constitute an offence punishable under section 294(b) IPC. Learned counsel relied on the decision of this Court in Latheef v. State of Crl.M.C.5629/15 3 Kerala (2014(2) KHC 604) wherein this Court had held that abusive words, humiliating words or defamatory words, will not as such, amount to obscenity as defined under section 294 IPC. In the above circumstances, the offence under section 294(b) IPC is not legally sustainable.
5. Petitioner herein is charged with offence under section 3 of the Kerala Money Lenders Act. Learned counsel for the petitioner, relying on Annexures-2 and 3 submitted that the petitioner herein is a licensed money lender, having obtained money lending license evidenced by Annexure-A3 pursuant to Annexure-A2 application. The application was filed on 16.05.2013 and it was issued on 06.02.2014. The money transaction took place some time 8 months prior to 18.01.2014. It appears that, at that time, the application was pending. In the light of proviso to section 3 of the Money Lenders Act, even if an application for money lending is pending, he is deemed to be a money lender as defined under section 3 of the Money Lenders Act. Even otherwise, an offence under money Lenders Act can be attracted only if there is evidence to show that one is carrying on money lending as a business. It is also settled legal position that sporadic or isolated instance of money transaction will not satisfy the offence of money lending. Crl.M.C.5629/15 4 Having considered these facts, I am inclined to hold that offence under section 3 of the Money Lenders Act will not survive in the case. In the above circumstance, prosecution of the petitioner herein is not legally sustainable. Consequently, Crl.M.C is liable to be allowed.
In the result, Crl.M.C is allowed. All further proceedings arising from Crime No.107 of 2015 of Punalur Police Station will stand quashed.
Sd/-
SUNIL THOMAS Judge Sbna/28/11/17 True Copy / P A to Judge