IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2152 of 2009()
1. K.KRISHNAN, AGED 59,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.KODOTH SREEDHARAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :09/11/2009
O R D E R
M.SASIDHARAN NAMBIAR,J.
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CRL.M.C.NO.2152 OF 2009
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Dated 9th November 2009
O R D E R
Based on a complaint received, from Abdul
Khader to the effect that the petitioner is lending
money on getting blank cheque and stamp papers as
security, Deputy Superintendent of Police, Kanhangad
instructed Sub Inspector of police, Hosdurg to conduct
a search. Sub Inspector conducted a search on
2/6/2008 in the house of the petitioner and in his
presence seized a signed blank stamp paper for Rs.50/-
where the name of Abdulkhader, his signature and
thumb impression were found, registered Crime
No.332/2008 of Hosdurg police station under
Annexure-III FIR on the allegation that petitioner
committed offences under Sections 17, 18A and sub
Section 6A of Section 18A of Kerala Money Lenders
Act. Thereafter, Annexure-II final report was later
filed after investigation. It was taken cognizance for
the offence under Section 17 and 18A and 6(A) of Money
Lenders Act by Judicial First Class Magistrate-I,
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Hosdurg as C.C.1310/2008. This petition is filed under
Section 482 of Code of Criminal Procedure to quash the
final report and the cognizance taken contending that
none of the offences are attracted and in the absence of
a case that petitioner is a pawnbroker, he cannot be
prosecuted for solitary action of giving a loan.
2. Though as directed, petitioner impleaded
Abdulkhader, the de facto complainant as second
respondent and notice was served on him, he did not
appear. Learned counsel appearing for the petitioner and
learned Public Prosecutor were heard.
3. As per Annexure-III FIR, crime was
registered based on the search conducted by Sub Inspector
of Police on 2/6/2008, whereunder a signed blank stamp
paper was seized from the house of the petitioner. Final
report does not disclose any other evidence or material
to show that any other petitioner had granted loan or
obtained security in any other case. Instead the only
allegation is with regard to the transaction with
second respondent who is shown as third prosecution
witness in the final report on the allegation that from
him a fifty rupee signed blank stamp paper was
allegedly obtained by the petitioner as security for the
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loan.
3. Section 17 provides penalty for carrying
on business without licence or in violation of the
conditions of licence. Under the said section 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 shall be punishable as provided
therein. Therefore, to attract Section 17, an accused
must have carried on business of lending money in
violation of the conditions of the licence. Section 18
provides that whoever contravenes any of the provisions
of the Act or of any rule made thereunder or of any
terms or conditions of a licence granted or deemed to be
granted thereunder or make claim or a statement which is
false or which he does not believe to be true, shall if
no other penalty is provided elsewhere is liable for the
punishment provided thereunder.
3. Sub Section 6A of Section 18A provides
that a pawnbroker who takes from the pawner any power
of attorney or any other document with blank entries
shall be punishable for the offence as provided under
Section 18A. To attract Sub section 6A petitioner shall
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be a pawnbroker and the second respondent a pawner.
Pawner is defined under clause 7B of Section 2 as means
a person delivering an article for pawn to a
pawnbroker. There is no allegation that the second
respondent has delivered any article in pawn. Even
otherwise when there is no case that petitioner is a
pawnbroker, there is no question of attraction of Sub
Section 6A of Section 18A of the Act.
4. Pawnbroker is defined under clause (7A)
of Section 2 as follows.
“7A. Pawnbroker means a person
who carries on the business of taking
goods and chattles in pawn for a loan.”
Therefore, unless a person carries on the business of
taking goods and chattles in pawn for a loan, he will
not be a pawnbroker as defined under the Act. There is
no allegation in Annexure-II final report that petitioner
is carrying on the business of taking goods and chattles
in pawn for a loan. Therefore, he cannot be a
pawnbroker as defined under clause 7A of Section 2 of the
Act.
5. Money lender is defined under clause 7 of
Section 2, means a person whose main or subsidiary
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occupation is the business of advancing and realising
loans or acceptance of deposits in the course of such
business and includes any person appointed by him to be
in charge of a branch office or branch offices or a
liaison office or any other office by whatever name
called, or his principal place of business and a pawn
broker. In the absence of material to show that main or
subsidiary occupation of the petitioner is business of
advancing and realising loans or acceptance of deposits
and in the course of such business, even of he had
granted a loan to second respondent, by that solitary
transaction he will not be a money lender as defined
under clause 7 of Section 2 also. If that be so, he
cannot be prosecuted either for the offence under Section
17 or Sub Section 6A of Section 18A of Money Lenders Act.
In such circumstances, continuation of the prosecution is
only an abuse of process of the court.
Petition is allowed. C.C.1310/2008 on the file
of Judicial First Class Magistrate-I, Hosdurg is quashed.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.