Illegality of money lending must be substantiated by evidence of business, not just possession of documents.

O R D E R

The accused in C.C No.146/2018 on the files of the Chief Judicial Magistrate Court, Kollam, has filed this petition under Section 482 Cr.P.C, to quash the proceedings against him in the aforesaid case. The petitioner faces criminal prosecution for the commission of offence under Sections 406 and 420 I.P.C, and Section 17 of the Money Lenders Act, 1958 (hereafter referred as ‘the Act’).

2. The prosecution case is that the petitioner has been involved in illegal money lending business, without any lawful authority or licence, by receiving blank cheques, stamp papers etc. from various persons, and cheating them by lending money for exorbitant interest. The offence is said to have been detected by the S.I of Police, Kollam East Police Station and his team, consequent to a search conducted at the residence of the petitioner on 10.11.2017. It is stated that a large number of blank cheque leaves, stamp papers etc were recovered from the residence of the petitioner in the above said search.

3. In the present petition, the petitioner would contend that he is totally innocent and that a false case has been foisted against him. It is further stated that the petitioner is a practising lawyer, and that the documents which the police recovered from his residence, were the documents entrusted to him by his clients. According to the petitioner, none of the offences alleged against him are attracted in the facts and circumstances of the case.

4. Heard the learned counsel for the petitioner, and the learned Public Prosecutor representing the State of Kerala.

5. It is argued by the learned counsel for the petitioner that the offence under Sections 17 and 18 of the Money Lenders Act, has no applicability in the facts and circumstances of this case, since there is absolutely nothing brought out to show that the petitioner is 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. The decisions rendered by a learned Single Judge of this Court in Vimal v. State of Kerala and Others [2015 KHC 2395] and Kurian V.V v. Leelamma Sebastian and Another [ 2015 KHC 5272 ] are relied on by the learned counsel for the petitioner, in support of the aforesaid argument. It is true that, this Court has held in the aforesaid decisions that the mere fact of the accused having been found in possession of some cheque leaves or other documents, will not prove a business transaction, and that the lending of money to a person under one or more documents, will not by itself constitute the offence of unauthorised money lending under the Act. But, as far as the present case is concerned, it could be seen from the statements given by CW3 and CW4 to the Investigating Officer that the petitioner is involved in the illegal business of money lending by obtaining signed blank cheques and other documents from various persons. CW3 and CW4 are said to be two among such persons, to whom the petitioner advanced money after obtaining signed blank cheques from them. In view of the above statements of two witnesses to the Investigating Officer about the involvement of the petitioner in the business of illegal money lending, it is not possible to say that the prosecution records are not capable of establishing the subsidiary occupation of the petitioner in the business of advancing and realising loans from the general public, after obtaining signed blank cheques, stamp papers etc. from them. That apart, the prosecution records would reveal that, as many as 17 cheque leaves and three stamp papers were recovered in the search conducted at the residence of the petitioner. In the above circumstances, it is for the Trial Court to decide whether the aforesaid materials garnered by th