The petitioner cannot be prosecuted under the Money Lenders Act without substantiated claims of being a money lender, and the continued prosecution is deemed abusive.

1. The petitioner herein is the accused in C.C No.644 of 2015 on the files of the Judicial First Class Magistrate Court, Kakkanad. In the aforesaid case, he is facing prosecution for offences punishable under S.3 r/w 17 of the Money Lenders Act and S.3 and S.4 of the Kerala Prohibition of Charging Exorbitant Interest Act .

2. Short facts of the case are as under:
In the statement given by the informant before the police, it is alleged that the informant had mortgaged his property with the ICICI Bank, Edappally. On the assurance given by the petitioner that he shall advance amounts to enable the informant to repay the amounts due to the Bank, a sale deed was executed and registered in favor of the petitioner by way of security. At the time of registration, the petitioner paid a sum of Rs. 7 lakhs, and thereafter, a sum of Rs. 3 lakhs was paid. The registration was effected on the understanding that as and when the loan amount, together with interest, is repaid, the property would be reconveyed. It is further stated that the petitioner had demanded and obtained blank documents such as cheques and stamp papers towards security at the time of advancement of the amount. He alleged that though the amount received together with interest was repaid, the property was not reconveyed back. Later, the informant came to know that the petitioner herein had assigned the property to a third party without his knowledge or consent. It is on these assertions the information was furnished, and the crime was registered. The investigation was completed and Annexure - A2 final report was laid.

3. The learned counsel appearing for the petitioner submits that the allegations leveled against the petitioner in the final report are frivolous. The property owned by the informant was assigned to the petitioner by executing and registering an out - and - out sale deed as Document No. 1217/2008 of the Edappally SRO. The petitioner thereafter assigned the property to a third party. He would point out that in connection with certain money transactions that the informant had with a certain Shameel Padmanabhan, a suit was instituted, and the property owned by the petitioner herein was attached. Seeking release of the property from attachment, an application was filed by the petitioner before the Civil Court, and the same was allowed by the order in Annexure - A3. The informant had no contention before the Civil Court that the document executed in favor of the petitioner was a sham document. It is further submitted that the informant instituted OS No. 117/2014 challenging the execution of the sale deed, but the suit was dismissed for non - prosecution. It is further urged that it was in respect of the sale deed executed in 2008 that information was furnished and the crime was registered on 30/5/2014. Finally, it is submitted that under no circumstances would the offence under S.3 read with S.17 of the Moneylenders Act or the provisions of the Kerala Prohibition of Charging Exorbitant Interest Act 2012 be attracted in the facts of the instant case.

4. I have considered the submissions advanced and have gone through the records.

5. The final report discloses that the transaction between the petitioner and the party respondent pertains to the year 2008 when the informant received Rs.20 lakhs and executed a registered sale deed vide No. 1217/2008, at the Edappally SRO in favor of the Petitioner. The informant contends that although the amount, along with interest, was repaid, the property was not returned. The alleged crime was registered only on 30/5/2014. The Annexure A3 order passed by the Civil Court reveals that the property covered under the sale deed was attached in OS No. 72 of 2012 in a suit initiated by Shameel P