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.