V.V. KURIAN Vs. LEELAMMA SEBASTIAN AND ORS.

JUDGEMENT

(1.) A prosecution involving the offences under S.13 and S.17 of the Kerala Money Lenders Act is sought to be quashed on the ground that the allegations in the final report submitted by the police, or in the complaint, will not in any manner constitute the essentials of the offences alleged. The complaint in this case was made by the 1st respondent herein, who had admittedly borrowed an amount of Rs.5 Lakhs from the accused. At the time of borrowal, the complainant had also handed over some blank cheques, blank stamp papers, and promissory notes. When the complainant failed to make payment as agreed, the accused brought a prosecution against her under S.138 of the Negotiable Instruments Act (hereinafter referred to as 'the N.I. Act'). On full trial, the learned Judicial First Class Magistrate - II, Ettumanoor convicted the 1st respondent under S.138 of the N.I. Act, and sentenced her to undergo simple imprisonment for six months. She was also ordered to pay a compensation of Rs.4 Lakhs to the petitioner herein, who is the complainant in the said prosecution. The said judgment of conviction was pronounced by the learned Magistrate on 28.05.2014. On the very same day, when the 1st respondent herein received a conviction under S.138 of the N.I. Act, she thought of making a complaint against the complainant as a counterblast. Accordingly, the police registered a crime on the said complaint, and after investigation submitted final report under S.13 and S.17 of the Kerala Money Lenders Act.

(2.) It is well settled that casual instances of money lending will not attract a prosecution under the Kerala Money Lenders Act. Under S.13 or 17 of the Kerala Money Lenders Act, only a money lender as defined under the law can be punished. S.2(7) of the Kerala Money Lenders Act defines "money lender" as a person, whose main or subsidiary occupation is the business of advancing and realising loans, or acceptance of deposits in the course of such business, but does not include a bank or a co - operative society, or the Life Insurance Corporation of India, or the Industrial Credit and Investment Corporation of India, or the Industrial Finance Corporation, or the State Financial Corporation established under the State Financial Corporation Act, or any institution established by or under an Act of Parliament or the Legislature of a State. Thus, the definition is very clear as to who can be called a money lender. An individual lending money otherwise than as a money lender as defined under the law, cannot be prosecuted under the provisions of the Kerala Money Lenders Act.

(3.) The final report does not show that the petitioner herein is a money lender as defined under the law, or that money lending is his main or subsidiary occupation. On a particular occasion, the 1st respondent happened to borrow Rs.5 Lakhs from the petitioner, and when she failed to return the amount, the petitioner brought a prosecution against her under S.138 of the N.I. Act. He brought such prosecution when the cheque issued by the 1st respondent was bounced due to insufficiently of funds. The 1st respondent faced the said prosecution for months, and till the last day of judgment, she did not think of filing a complaint against the petitioner. Much thought is not required to suspect the truth of the complaint. The petitioner's case that the prosecution is a counterblast to the prosecution brought against the defacto complainant under S.138 of the N.I. Act, can be accepted without any hesitation. She was given notice in this proceedings. But she opted to remain absent. There is reason to believe that she is not interested in the prosecution, or that she knows what will ultimately happen, if the prosecution proceeds under the Kerala Money Lenders Act.