IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 25^TH DAY OF JANUARY 2024 / 5TH MAGHA, 1945 CRL.MC NO. 1739 OF 2019 CRIME NO.1081/2016 OF KOLLENGODE POLICE STATION, PALAKKAD AGAINST THE ORDER/JUDGMENT CC 317/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS,CHITTUR PETITIONER/ACCUSED:

MANOJ KUMAR, AGED 44 YEARS S/O.PANKAJAKSHAN NAIR, THEKKEGRAMAM, PERUMGULAM, ALATHUR, PALAKKAD DISTRICT.

BY ADV O.D.SIVADAS RESPONDENTS/STATE :

1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.

2 THE SUB INSPECTOR OF POLICE, ALATHUR POLICE STATION, ALATHUR, PALAKKAD DISTRICT, PIN-678 541.

CORRECTED AS THE SUB INSPECTOR OF POLICE, KOLLENGODE POLICE STATION, KOLLENGODE PALAKKAD DISTRICT PIN 678504 AS PER ORDER DATED 18/09/2019 IN CRL.MA.4/2019.

3 PRABHADASAN, AGED 34 YEARS, SHEMITHA, W/O.NOUSHAD, PUTHUPALAYAM, PUTHIYANGAM, ALATHUR, PALAKKAD DISTRICT, PIN-678 541.

CORRECTED AS PRABHADASAN, AGED 34 YEARS, S/O.KITTU, THOOTTIPADAM, VETTEKKAD, ELAVANCHERY, CHITTUR, PALAKKAD DISTRICT – 678 101.

AS PER ORDER DATED 29.03.2019 IN CRL.M.A.2/2019 SRI.SANAL P. RAJ, PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

25.01.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

BECHU KURIAN THOMAS, J ......….............................................

Crl.M.C.No.1739 of 2019 …................................................

Dated this the 25^th day of January, 2024 ORDER Petitioner is the accused in C.C.No.317/2017 on the files of Judicial First Class Magistrate Court, Chittoor arising out of Crime No.1078/2016 of Alathur Police Station. The offences alleged to have been committed by the petitioner are those under Sections 3 and 17 of the Kerala Money Lenders Act, 1958 [for short, the ‘KML Act’] apart from Sections 406 and

420 of the Indian Penal Code, 1860.

2. Prosecution case is that, the accused had indulged in the business of money lending during the year 2011, by lending an amount of Rs.3,00,000/- to the defacto complainant without any licence under the KML Act, and cheated him by executing a sale deed in respect of 1.10 acres of property with the promise to reconvey the property and even though the defacto complainant was ready to return the amount borrowed with interest, the accused failed to do so and thereby committed the offences alleged.

3. Sri.O.D.Sivadas, the learned counsel for the petitioner, submitted that, even if the allegations in the final report as admitted, an offence as alleged are not made out. It was submitted that execution of a sale deed for consideration and the alleged claim for re-conveyance are civil disputes. It was further submitted that the final report proceeds on a wrong assumption that lending money to a person is an offence, if licence under the KML Act is not obtained. The learned counsel referred to the decisions of this Court in Kurian V.V.v. Leelamma Sebastian and Another 2015 (4) KLT 476 and Sasidharan v. Sub Inspector 2023 (1) KHC 31.

4. I have heard the learned Public Prosecutor as well.

5. In the decision in Kurian’s case (supra) it was held that casual instances of money lending will not attract a prosecution under the KML Act, and an individual, lending money otherwise than as a money lender, as defined under law, cannot be prosecuted under the provisions of the KML Act.

6. Similarly, in Sasidharan’s case (supra), this Court again observed that a continuous activity of money lending is essential to treat the lending of money as a business, and without such continuous activity, solitary or few instances of money lending cannot be treated as a business in money lending.

7. A perusal of the final report reveals that the money lending alleged against the petitioner is only a solitary instance of handing over of Rs.3,00,000/- to the defacto complainant. Therefore, under no circumstances can such a solitary instance be treated as a continuous activity infringing upon the KML Act for non-possession of a licence.

8. As far as