IMPORTANT POINTS
If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial - The court has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the Court, any basic infirmities appearing in the case and so on for the limited prayer of finding out whether or not a prima facie case against the accused has been made out.

ORDER :

The revision petitioners are the first and the second accused in the case C.C.No.2252/2015 on the file of the Court of the Judicial First Class Magistrate, Thalassery.

2. The allegation against the petitioners is that they have committed an offence punishable under Section 17 of the Kerala Money-Lenders Act, 1958 (hereinafter referred to as 'the Act').

3. The petitioners are the directors of the company by name 'Dhankodi Chits Private Limited'. On 26.04.2014, at 16.00 hours, the Sub Inspector of Police, Thalassery police station conducted search at the office of the aforesaid company. The Sub Inspector seized blank cheque leaves, stamp papers, certificates etc. as per a search list and registered Crime No.615/2014 against the petitioners for the offence punishable under Section 17 of the Act.

4. After completing the investigation, final report was filed against the petitioners for committing the offence under Section 17 of the Act. The learned Magistrate took cognizance of the offence.

5. As per the chargesheet filed by the police, the case against the petitioners/accused is as follows: The accused had obtained licence to conduct chitty business from the competent authority. Under the guise of conducting chitty business, the accused unauthorisedly permitted four persons (CW6, CW9, CW11 and CW14) to subscribe to the chitty. The accused obtained blank cheque leaves and stamp papers from the aforesaid persons as security for the chitty amount given to them and thereby, they have committed an offence punishable under Section 17 of the Act.

6. The petitioners filed an application for discharge before the trial court under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'). As per the impugned order, the learned Magistrate dismissed the aforesaid application. The aforesaid order is challenged in this revision petition.

7. Heard learned counsel for the petitioners and the learned Public Prosecutor.

8. Section 2(7) of the Act defines who is a money-lender. It states that 'money-lender' means 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. Section 3(1) of the Act prohibits conducting of business as a money-lender without a licence obtained under the Act or in contravention of the terms of the licence obtained. Section 17 of the Act provides that, whoever carries on the business of moneylending 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 punished.

9. The specific allegation against the petitioners is that they unauthorisedly permitted four persons to subscribe to the chitty conducted by the company and that they obtained blank cheque leaves and stamp papers from them as security for the chitty amount paid to them.

10. Money lending business is not defined under the Act. As noticed earlier, Section 2(7) of the Act defines who is a money lender. Only a person who conducts the business of advancing and realising loans or accepting deposits in the course of such business would come under the definition of money-lender. What is loan is defined under Section 2(5) of the Act. It states that, 'loan' means an advance whether of money or in kind at interest and includes any transaction which the Court finds in substance to amount to such an advance. However, clause (ix) of Section 2(5) of the Act specifically excludes an advance made under any chit fund scheme or kuri or chitty from the purview of loan. Therefore, if money is advanced under any chit fund scheme or kuri or chitty, it does not amount to a transaction of loan.

11. The specific case put forward by the prosecution against the petitioners is that they paid chitty amount to the subscribers of the chitty and obtained signed blank cheque leaves and stamp papers from them as security. Payment of chitty amount to the subscribers of the chitty,