ISMAIL C.A, vs SAKKEER HUSSAIN

An FIR was registered against the petitioner. He seeks

to quash it and all proceedings pursuant thereto. The relief is

sought under Sec.482 of the Code of Criminal Procedure

( Cr.P.C for short).?

Parties are referred to in this order as they are

shown in the memorandum of the criminal miscellaneous

case.

The first respondent filed a complaint against the

petitioner under Sec.190 of Cr.P.C . A copy of it is annex-A.

The complaint was forwarded under Sec.156 (3) of Cr.P.C

directing an investigation. Thereupon annex-H FIR was

registered at the police station. The same is impugned in this

proceedings.

The dispute is between the petitioner and the first

respondent. They have their own version about the dispute.

The version of the petitioner is limned in the memorandum

of Crl.M.C. The first respondent has depicted his version in

annex-A complaint.

The petitioner''s version is stated below: Himself

and the first respondent are known to each other for several

years. The latter and his wife are builders who do real

estate business too. They invited the petitioner for a joint

venture. He accepted the offer and gave them

Rs.41,90,050/- . The petitioner was made to believe that his

money would be returned with share of profits. But the

money was not returned. Mediators intervened. A

settlement was arrived at. An agreement was executed on

7.6.2012. The first respondent undertook to return the

amount of Rs.41,90,050/- within three months. But he did

not. He took hasty steps to sell his property. Hence the

petitioner filed a suit, O.S.No.97/2013. The first respondent

sold his property despite the order of attachment passed by

the Sub-Court in O.S.No. 97/2013.

The version of the first respondent goes as

follows: The petitioner is doing money lending business without a licence. The first respondent was short of money

to buy an apartment. He was contacted by the petitioner

through one Jamal and offered to help. The petitioner came

to the house of the first respondent on 24.3.2012 and paid

him a loan of Rs.10 lakhs. From the latter and his wife the

former collected altogether ten signed blank cheques, a few

signed blank papers and the certified copy of the title deed

of the property of the first respondent. The petitioner

promised to return the signed blank cheques, signed blank

papers and the document when the amount of Rs.10 lakhs

was repaid with interest. The first respondent repaid Rs.8

lakhs towards the principal and Rs.6 lakhs towards interest.

He raised the balance and met the petitioner. The petitioner

demanded Rs.6 lakhs more towards interest. He forged an

agreement and filed a suit against the first respondent and

his wife.

Heard the learned counsel for the petitioner and

the learned Public Prosecutor.

One of the offences alleged against the petitioner

is one punishable under Sec.17 of the Kerala Money Lenders Act, 1958 (for short the Act). The other offences

alleged against him are those punishable under Secs 384,

420,448, 468 and 469 of the Indian Penal Code ( IPC for

short). The petitioner has a threefold contention. One, the

allegations against him in annex-A complaint do not

constitute any offence. Two, the dispute between the

parties is civil in nature. And three, the petitioner''s version

of the dispute alone could be true and the allegations

against him are per se false.

One allegation against the petitioner is that he is

doing money lending business without a licence. A person

whose main or subsidiary occupation is the business of

advancing and realising loans or accepting of deposits in the

course of such business is a ''money lender'' as defined in

Sec.2(7) of the Act. Sec.3 of the Act prohibits doing of

money lending business without a licence. Carrying on the

business of money lending without a licence is punishable

under Sec.17 of the Act.

The learned counsel for the petitioner submits that

a single instance of lending a loan does not amount to doing

of money lending business within the meaning of the Act.

The proposition is correct. One or two instances of

advancing a loan would not amount to doing of money

lending business. This court has said so in Vimal vs State

of Kerala and Kurian vs. Leelamma Sebastian (2015

KHC 2395 and 5272 respectively).

But the allegation against the petitioner in annex-

A complaint is not just that he lent money only once or

twice. The complaint alleges at paragraph 2 that the

petitioner is a member of a racket which is engaged in

money lending at exorbitant rates of interest against public

policy. It is alleged that he thereby swindles money. It is

also alleged that he has no licence to do money lending

business. There are sufficient allegations in annex-A

complaint against the petitioner. Rest are matters to be

ascertained in investigation.

In Vimal''s case and Kurian''s case (supra) the

respective final reports were quashed as no material could

be gathered on investigation to support the charging of any

offence under the Act. The situation is different in the present case. Here, the investigation has only started. No

conclusion is possible before conclusion of investigation.

Therefore the reported decisions are not helpful to the

petitioner to get the prosecution against him quashed.

The house of the petitioner was searched. Certain

documents were seized. Annex-I is the report of seizure.

The result of search was not much helpful to the first

respondent. But the investigation does not come to an end

with annex-I report. The said report cannot be taken as

evidence for groundless prosecution. The investigation may

have to go on further. It cannot be stalled.

The contention of the petitioner at paragraph 3 of

his memorandum should not go unnoticed. He has, no

doubt, contended that he has joined for a joint venture with

the first respondent and wife. The further contention is that

the petitioner gave Rs.41,90,050/- as he was made to

believe that the amount would be paid back to him with

share of profits. This contention produces suspicion. For,

the said contention is more close to a money lending

transaction than a joint venture or partnership where not only profit but loss too is shared. The matter is liable to be

investigated into.

Forgery is another offence alleged against the

petitioner. Annex-D is a copy of an agreement allegedly

executed by and between the petitioner and the first

respondent on 7.6.2012. It recites that the first respondent

has agreed to return Rs.41,90,050/- to the petitioner within

three months. Annex-D is the agreement allegedly forged

by the petitioner. The complaint states at paragraph 4 that

the petitioner forged an agreement as if it were executed

on 7.6.2012 to the effect that Rs.41,90,050/- was due to him

from the first respondent. It is also alleged that the said

document was used to file a suit and to obtain an order

directing attachment of the property of the first respondent

before judgment. The signature in annex-D agreement is

denied by the first respondent (vide paragraph 5 of annex-

A). There are sufficient allegations in the complaint to take a

case of forgery for investigation. If the allegations are true,

at least the offence under Sec.465 of IPC is attracted. I

therefore do not go into the question whether the allegations in the complaint are sufficient to attract Secs

467, 468 and 469 of IPC . Let the investigation give a clear

picture.

The first respondent has pleaded in his complaint

that he was given a loan of Rs.10 lakhs. He has also

pleaded that signed blank cheques, signed blank papers and

the certified copy of the title deed of his property were taken

from him by the petitioner. Another plea is that the aforesaid

cheques, papers and document were agreed to be returned

on repayment of the loan with interest. The first respondent

contends that he paid Rs.8 lakhs towards the principal, Rs.6

lakhs towards interest and tendered the balance, but the

petitioner demanding Rs.6 lakhs more towards interest

refused to return the blank cheques, blank papers and the

document. It is also pleaded in the complaint that the

petitioner committed forgery to create an agreement

making the former liable for Rs.41,90,050/-. Thus, there are

allegations in the complaint to bring home a case of

cheating coupled with forgery which deserves to be

investigated.

Extortion and house-trespass are also alleged in

the complaint. Allegation to support extortion is practically

nil. Allegation touching house-trespass is feeble inasmuch

as the time and date of the alleged incident are not stated.

But the proceedings cannot be quashed as sufficient

allegations are made in the complaint to make out the other

offences alleged.

Another contention of the petitioner is that the

dispute between him and the first respondent is civil in

nature. Certain amount of civil disputes may be involved in

criminal cases. A good example for it is Sec.420 IPC .

Involvement of a civil dispute by itself is not a ground to

quash a criminal prosecution. The High Court will not invoke

its jurisdiction under Sec.482 of Cr.P.C to quash a criminal

proceedings unless the dispute between the parties is in the

nature of civil, civil and purely civil.

The learned counsel for the petitioner cited three

decisions. Two of those decisions are (i) All Cargo Movers

(India) Private Limited vs. Dhanesh Badarmal Jain

((2007) 14 SCC 776) and (ii) Sanjeev Kumar vs.

Puthanpurayil Abdul Salam (2014 KHC 431). In those

cases the disputes were purely civil in nature. What is held

in All Cargo Movers is that a breach of contract simpliciter

does not constitute an offence. Sanjeev Kumar was also a

case where the allegation was a breach of an agreement for

sale of a property. The case on hand is entirely different. As

already seen, annex-A complaint contains allegations

constituting different offences. The reported decisions

referred to above are therefore of no help to the petitioner.

The third decision relied on by the learned counsel

on the same point is that of the Uttarakhand High Court.

The decision is Rahul Sahgal vs. State of Uttarakhand

(2013 KHC 3505). One of the reasons why a criminal

prosecution was quashed was that the pendency of two civil

suits between the parties would indicate that the

controversy was of a civil nature. I respectfully disagree

with the learned Single Judge of the Uttarakhand High Court.

Mere pendency of civil suits cannot go to a conclusion that

the dispute is only civil in nature. The present one is a case where the dispute is not purely civil, although a civil dispute

may also be involved.

Lastly, the last contention of the petitioner.

According to him, his version of the dispute alone could be

true and the allegations against him are per se false. The

petitioner has produced certain documents with a view to

establish his contentions true and the contentions against

him false. His case is that Rs.41,90,050/- taken from him

was not repaid despite the execution of an agreement

undertaking to repay it. I am constrained to go into the

documents produced by the petitioner as I am called upon to

do so. It was argued that those documents would clearly

establish that money was due to the petitioner and not due

from him. Let me therefore consider the documents

produced by the petitioner.

The petitioner alleges in the memorandum of

Crl.M.C that he gave Rs.41,90,050/- to the first respondent.

That is a huge amount. The memorandum is silent as to

when was the payment made and how was it made. The

petitioner seems to rely too much on annex-B document.

His memorandum does not state for what purpose he

produced it. All that is stated in the memorandum about

annex-B is that it is the bank-statement pertaining to the

account of the wife of the first respondent. However, the

disputed annex-D agreement recites that on 24.3.2012

Rs.9,90,050/- was transferred to the account of the first

respondent''s wife, Ayisha by name. In annex-E petition

submitted to the Dy.S.P also the petitioner stated that

Rs.9,90,050/- was transferred to the account of the wife of

the first respondent. The learned counsel for the petitioner

argued that annex-B would show the transfer of

Rs.9,90,050/- to the account of the wife of the first

respondent. There could be some substance in the

contention of the petitioner if Rs.9,90,050/- was credited to

the account of the wife of the first respondent. A transaction

involving Rs.9,90,050/- is shown in annex-B against the date

24.3.2012. But the amount is not seen credited to annex-B

account. It is shown debited from that account. The entry

concerned could be a withdrawal of Rs.9,90,050/- from the

account or a transfer from the account. It is certainly not a transfer to the account. Annex-B does not support the case

of the petitioner if it pertains to the account of the wife of

the first respondent.

The name of the account holder shown in annex-B

is not Ayisha, but M/s Silver Star Steels. It is the account of

the petitioner himself. His name is shown in annex-B

beneath the name and address of the account holder M/s

Silver Star Steels. It is not known why the petitioner

produced the statement of accounts of his own account as if

it were the statement pertaining to the account of the wife

of the first respondent.

The mode of transfer as stated in annex-D

disputed agreement is RTGS (Real Time Gross Settlement) .

The mode of transfer is not discernible from annex-B. The

number of a cheque is shown therein against the date

24.3.2012. No other detail is legible as the crucial portion in

annex-B is seen blackened. All other entries therein are

legible. The crucial portion where the details of the debit

entry on 24.3.2012 are entered is seen blackened. That

must be purposefully done. The petitioner had something to

hide and therefore the crucial portion was blackened. Annex-

B in its present shape does not help the petitioner to

establish that the amount shown therein was transferred

from his account to the account of the wife of the first

respondent through RTGS or any other mode of bank to

bank transfer.

Annex-C is a copy of a ''receipt'' allegedly issued to

the petitioner by the first respondent on 30.5.2012. The so

called receipt recites that Rs.32 lakhs is due to the former

from the latter excluding the profit. Annex-C is not an

admitted document. As already said, annex-D agreement is

allegedly a forgery. Disputed documents cannot be pressed

into service to get a criminal prosecution quashed.

Annex-E is a copy of the petition submitted to the

Dy.S.P, Thodupuzha by the petitioner . The grievance voiced

therein is that the first respondent did not return the money

to the petitioner. The latter cannot expect to get the

criminal proceedings against him quashed on the strength of

his own petition submitted to a police officer. It should not

go unnoticed that going by annex-E petition, the amount

allegedly given to the first respondent and his wife by the

petitioner was not Rs.41,90,050/-, but Rs.60,60,260/-. It is

alleged in annex-E that the said amount was paid in cash.

Annex-E recites further that in addition to the amount

referred to above, Rs.32 lakhs was swindled from the

petitioner by the first respondent from 30.5.2012 onwards.

The claim does not stop there. Another figure of

Rs.16,25,000/- is also shown to be due from the first

respondent and his wife to the petitioner. In view of his own

annex-E petition, the petitioner cannot prevent an

investigation into the allegation against him that he

committed an offence under Sec.17 of the Act. It is not

known why the petitioner who considers the dispute

between him and the first respondent purely civil in nature

went to a police officer with annex-E petition.

Annex-F shows that the property of the first

respondent was attached before judgment in OS 97/2013.

Annex- G is the certificate of encumbrance in respect of the

property attached. These documents are totally irrelevant in

deciding the question that is being discussed. Annex-J is the

call details of the telephone connection subscribed by the

petitioner. The same is produced to destruct the case of the

first respondent that he had no acquaintance with the

petitioner before 24.3.2012. The call details may show

something in favour of the petitioner. But that much is not

sufficient to enter a finding that all allegations against him

are false.

The documents annexed to the memorandum of

Crl.M.C are quite insufficient to hold that the allegations

against the petitioner are inherently false. He produced the

judgment in OS 97/2013. His learned counsel submitted that

the criminal prosecution should be quashed since the civil

court granted a decree. The learned counsel submitted that

the civil court accepted the contentions of the petitioner,

accepted the documents produced by him as genuine and

rejected the contentions of the first respondent. It was also

submitted that no appeal was filed against the decree. Do

the decree and judgment of a civil court have any impact on

a criminal prosecution when the parties and issues are

same? That is the question.

A judgment in one proceedings is relevant in

another proceedings only if Sec.40, 41, 42 or 43 of the

Indian Evidence Act is attracted. Sec.40 provides that the

existence of any judgment, order or decree which by law

prevents any court from taking cognizance of a suit or

holding a trial is a relevant fact when the question is

whether such court ought to take cognizance of such suit, or

to hold such trial. Sec.40 has no application here, where the

question is not relating to the taking of cognizance of any

suit or holding of any trial. Sec.40 can have application only

if the judgment, order or decree prevents any court under

any law from taking cognizance of a suit or holding a trial.

Therefore the judgment, order et cetera must be one which

prevents holding of a trial under Sec.300 of Cr.P.C or under

Sec.11 of CPC. The judgment relied on by the petitioner is

not such a judgment and therefore not relevant under

Sec.40 of the Indian Evidence Act.

A final judgment, order or decree of a competent

court is relevant under Sec.41 of the Evidence Act only if it is

passed in the exercise of probate, matrimonial admirality or

insolvency jurisdiction. The judgment produced by the

petitioner is not one passed in the exercise of any such

jurisdiction. Therefore it is not necessary to go into the

other ingredients of Sec.41. The judgment in O.S.97/2013 is

not relevant under Sec.41.

Sec.42, Indian Evidence Act, deals with the

relevancy of judgments, orders or decree other than those

mentioned in Sec.41. A judgment, order or decree which

does not come within the purview of Sec.41 comes within

the purview of Sec.42 only if it relates to matters of public

nature relevant to the enquiry. The judgment received by

the petitioner is not such a judgment and therefore not

relevant under Sec.42 of the Evidence Act.

Sec.43 of the Evidence Act declares that

judgments, orders or decrees other than those mentioned in

Secs 40, 41 and 42 are irrelevant unless the existence of

such judgment, order or decree is a fact in issue, or is

relevant under some other provisions of the Evidence Act .

The existence of the judgment obtained by the petitioner is

neither a fact in issue in the present case nor relevant under

any other provisions of the Evidence Act . It is therefore

quite irrelevant.

The learned counsel for the petitioner relied on

two decisions. The decisions are (i) Premshanker vs. I.G

of Police (AIR 2002 SC 3372) and (ii) George K.P vs.

State of Kerala (2013 KHC 2506).

In Premshanker''s case (supra) a three-judge

bench of the Supreme Court considered two decisions of the

Supreme Court. One of those decisions was that of a two-

judge bench in V.M. Shah vs. State of Maharashtra

((1995) 5 SCC 767). The other decision was rendered by a

three-judge bench in M/s Karam Chand Ganga Prasad

vs. Union of India ((1970) 3 SCC 694). It was held in

V.M.Shah''s case that the findings recorded by the criminal

court would stand superseded by the findings recorded by

the civil court. It was also held that the findings of the civil

court would get precedence over the findings of the criminal

court. The judgment in M/s Karam Chand''s case (supra) observed that it was a well established principle of law that

the decisions of the civil courts were binding on the criminal

courts, but the converse was not true. The Supreme Court

holds in Premshanker (supra) that the general observation

in M/s Karam Chand (supra) must be read in the context of

the facts and circumstances of that case and that the

observation in V.M.Shah (supra) is not the correct

enunciation of law. The apex court in Premshanker (supra)

considered Secs 40 to 43 of the Evidence Act at length and

declared the law on the point. It was held that if the civil

case and the criminal proceedings were for the same cause,

the judgment of the civil court would be relevant if the

conditions of any of Secs 40 to 43 of the Evidence Act were

satisfied. It is already seen that Secs 40 to 43 have no

application in the present case. Premshanker (supra) is of

no help to the petitioner.

George K.P vs. State of Kerala (2013 KHC

2506) relied on by the petitioner is strictly not a decision on

Sec.43 or on any other provision of the Evidence Act . The

dictum laid down is not that a civil judgment is always

relevant in a criminal proceedings. That was a case where

the accused as the plaintiff had filed a civil suit and obtained

a decree on the disputed promissory note. It was only

thereafter a complaint was filed alleging the promissory note

to be a forgery. It was also noticed that the charge-sheet

was filed without even seizing the document allegedly

forged. In these circumstances only this court said as under:

Though a judgment rendered by a civil court as such is not

binding or conclusive, a proceeding having some nexus

with the disputes adjudicated in such judgment is projected

before the criminal court, having regard to totality of the

facts and circumstances involved in the case it can be

looked into. Irrespective of the question whether the

judgment of the civil court has any relevancy or not, where

exercise of inherent powers of this court is called for to

impeach a criminal proceeding as an abuse of the process

of the court, it can definitely be taken note of. In

Premshanker v. IG of Police, 2002 (3) KLT 389 (SC), three

judges Bench of the Apex Court has considered to what

extent and under what circumstance judgment rendered

by a civil court can be looked into where criminal case and

civil proceedings arise from the same cause. It has got a

limited value when such a judgment falls only within the

ambit of S.43 of the Evidence Act. But, relevancy of

judgment under the aforesaid Section and limited scope

thereof, would not interdict this court where the judgment

rendered itself is shown to be founded over a document, which is challenged as forged to set the criminal law in

motion.

It is clear from the judgment in George K.P''s case

that this court was satisfied that the criminal complaint was

false. Facts and situation are entirely different in the

present case. Here, the complaint was filed not after the

decree in OS 97/2013. There is ample time to seize the

document allegedly forged and to get it scrutinized by a

handwriting expert. It is already seen that the allegations

against the petitioner are liable to be investigated into.

The judgment produced by the petitioner is no way

helpful to him to get the criminal prosecution against him

quashed and thereby to get the investigation into the

offences alleged against him prevented. There are sufficient

allegations in annex-A complaint to go for investigation. Let

the investigation go on. The Crl. M.C is without any merit.

It deserves only a dismissal.

Dismissed.