DAVI Vs. INSPECTING ASSISTANT COMMISSIONER

JUDGEMENT

(1.) On 3.8.2008, the second respondent noticed that the writ petitioner was conducting money lending without licence as contemplated under the Money Lenders Act Accordingly, a case as Crime No. 820 of 2008 was registered. In the meanwhile, the writ petitioner approached the first respondent, the authorisded officer to compound the offence under Section 18E of the Money Lenders Act with Ext. P1 application. Alleging that the first respondent was not acting upon Ext. P1, the writ petitioner moved this Court with W.P.(C) 3395 of 2009 By Ext. P2 judgment dated 2.2.2009, this Court directed the first respondent to consider Ext. Pl application and pass orders as expeditiously as possible, at any rate, within four weeks from the date of production of a copy of that judgment. It was further ordered that in the meanwhile, further proceedings in Crime No. 820/2008 will stand deferred for six weeks from that date. Accordingly, in obedience to the direction of this Court in Ext. P2 judgment, the first respondent considered Ext. Pl application and rejected the same by Ext. P3 order stating that the second respondent had initiated action and in that circumstance, Ext. P1 petition is premature and intended to defeat the criminal case and the resultant actions thereon. It is seen that after investigation, the second respondent filed Ext. P4 charge sheet before the Judicial Magistrate of First Class, Kunnamkulam, a copy of which is produced as Ext. P4. Now this writ petition is filed seeking the following main reliefs:

(2.) Having heard the learned counsel appearing for the writ petitioner and the learned Government Pleader, I find that the offence under Section 17 of the Money Lenders Act is a cognizable offence and the second respondent was correct in registering the crime and investigating the same and filing Ext. P4 charge report The only contention that was advanced is that the conduct of doing money lending business without licence is compoundable under Section 18E of the Act and in the event Ext. P1 application is considered by the first respondent in time, no offence under Section 17 could be made out. I find no merit in the submission made on behalf of the writ petitioner. It is not disputed that carrying on business in money lending without proper licence under Section 3 of the Money Lenders Act is punishable under Section 17 of the Kerala Money Lenders Act. By virtue of Section 12 , it is cognizable. Hence the Station House Officer can take cognizance and prosecute the offender. Section 18(C) would show that the licensing authority is also empowered to initiate departmental action and impose penalty. Having gone through sections 12 , 13 , 14 , 16 , 16A , 16B , 17 , 18 , 18A , 18B , 18C , 18D , 18E and 20A , I find that prosecution contemplated under Sections 13 , 17 , 18A and 18B is independent of the power of the licensing authority appointed under Section 2(4A) to initiate departmental action or to compound the same. Therefore, once a cognizance is taken by a police officer for any of the offences mentioned earlier or a charge sheet is filed after investigation for offence under Sections 13 , 17 , 18A or 18B by the officer in charge of the police station, I find that it cannot be nullified by compounding the offence under Section 18E of the Money Lenders Act. If the offence is compoundable, a petition to that effect has to be filed before court. Probably, compounding by the licensing authority in respect of the departmental action may be a good reason for the offender to get a lenient sentence including exemption from the minimum sentence prescribed under Section 17 . But by the reason that the writ petitioner had filed a petition for compounding, it cannot be held that the charge sheet filed by the investigating officer is illegal so as to entitle the offender to get a writ of declaration of this Court in exercise of the power vested under Article 226 of the Constitution of India or to quash the same in exercise of writ jurisdiction. However, I find that filing of the charge sheet is not at all a reason to reject an application filed by the offender before the licensing authority to compound the offence. Independent of the charge sheet the licensing authority is bound to accept the petition for compounding the offence. In the above circumstances, I find that the petitioner is not entitled to get reliefs 1 and 2 sought for in the writ petition. Whereas he would succeed as regards prayer No. 3. Since the reason stated for rejecting the petition is not sustainable and since the prosecution is independent of the power of the licensing authority to take departmental action or to compound the offence under Section 18E , Ext. P3 order is set aside and the first respondent is directed to consider Ext. Pl and pass appropriate orders. Taking note that the writ petitioner has come forward acknowledging his default and sought for compounding the offence under Section 18E of the Money Lenders Act, the magistrate shall consider the same at the time of awarding sentence. The first respondent shall dispose of Ext. Pl at the earliest; but not later than two months from the date of receipt of a copy of this judgment. It is left open to the writ petitioner to produce the order on Ext. P1 and to seek for lenient sentence before the criminal court in case the petitioner pleads guilty or if found guilty after trial.