Augusthy. T M vs. State Of Kerala - Kerala High Court, 11 January 2023

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE V.G.ARUN WEDNE AY, THE 11TH DAY OF JANUARY 2023 / 21ST POUSHA, 1944 WP(C) NO. 39595 OF 2022 PETITIONER/S: 1 AUGUSTHY. T M AGED 63 YEARS S/O MATHAYI. T.D, THEKKAN HOUSE, CHOWKA, ELINJIPARA P O, THRISSUR (PARTNER, SOUTHERN ENTERPRISES, CHALAKUDY), PIN - 680721 2 MARY AUGUSTHY AGED 61 YEARS THEKKAN HOUSE, CHOWKA, ELINJIPARA P O, THRISSUR, (MANAGING PARTNER, SOUTHERN ENTERPRISES, CHALAKUDY) , PIN - 680721 3 RYJO AUGUSTHY AGED 33 YEARS THEKKAN HOUSE, CHOWKA, ELINJIPARA P O, THRISSUR, ( PARTNER, SOUTHERN ENTERPRISES, CHALAKUDY) REP. BY POWER OF ATTORNEY HOLDER, AUGUSTHY. T M, THEKKAN HOUSE, CHOWKA, ELINJIPARA PO, THRISSUR , PIN - 680721 4 MAJO SHIJO AGED 35 YEARS THAKKOLKARAN HOUSE, MOONJELY, KOTTATAT P O, THRISSUR, (PARTNER, SOUTHERN ENTERPRISES, CHALAKUDY) REP. BY POWER OF ATTORNEY HOLDER, AUGUSTHY. T M, THEKKAN HOUSE, CHOWKA, ELINJIPARA PO, THRISSUR , PIN - 680731 5 SHIJO RAPHEL AGED 42 YEARS THAKKOLKARAN HOUSE, MOONJELY, KOTTATAT P O, THRISSUR, (PARTNER, SOUTHERN ENTERPRISES, CHALAKUDY) REP. BY POWER OF ATTORNEY HOLDER, AUGUSTHY. T M, THEKKAN HOUSE, CHOWKA, ELINJIPARA PO, THRISSUR , PIN - 680731

W.P.(C) No. 39595 of 2022 -2- BY ADVS. JESSY S.SALIM SINDHU SANTHALINGAM A.D.SHAJAN RESPONDENT/S: 1 STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM , PIN - 695001 2 DEPUTY COMMISSIONER OF STATE TAX STATE GOODS AND SERVICES TAX DEPARTMENT (SGST), IRINJALAKUDA, THRISSUR DISTRICT , PIN - 680125 3 INSPECTING ASSISTANT COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT (SGST), IRINJALAKUDA, THRISSUR DISTRICT , PIN - 680125 4 DEPUTY TAHSILDAR (RR) CHALAKUDY TALUK, THRISSUR DISTRICT , PIN - 680307 5 SUB INSPECTOR OF POLICE VELLIKULANGARA POLICE STATION, THRISSUR DISTRICT , PIN - 680684 6 DEEPAN K G S/O K. N. GANGADHARAN, KATTILAPARAMBIL HOUSE, METTIPADAM, KODASSERY P O, (PARTNER, SOUTHERN ENTERPRISES, CHALAKUDY) , PIN - 680721 7 K N GANGADHARAN KATTILAPARAMBIL HOUSE, METTIPADAM, KODASSERY P O, (PARTNER, SOUTHERN ENTERPRISES, CHALAKUDY) , PIN - 680721 8 PRAKASAN S/O. AYYAPPAN, KODAMPARAMBIL HOUSE, CHATTIKULAM DESOM,

W.P.(C) No. 39595 of 2022 -3- KODASSERY VILLAGE,THRISSUR DISTRICT , PIN - 680721 9 COMMISSIONER STATE GOODS AND SERVICES TAX DEPARTMENT (SGST), 9TH FLOOR, TAX TOWERS, KARAMA P O, KILLIPPALAM, THIRUVANANTHAPURAM , PIN - 695002 10 JOINT COMMISSIONER OF STATE TAX O/O THE JOINT COMMISSIONER (APPEALS) TAX COMPLEX, POOTHOLE, THRISSUR , PIN - 680004 OTHER PRESENT: GP AMMINIKUTTY K THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.P.(C) No. 39595 of 2022 -4- JUDGMENT Dated this the 11th day of January, 2023 The petitioners are the partners of M/s.Southern

Enterprises,

Chalakudy;

a partnership firm engaged in money lending business in accordance with the provision of the Kerala Money Lenders Act, 1958 and registered on the rolls of the State Goods and Services Tax Department. While the business was being conducted in a proper manner, there arose some complaints that, after accepting deposits, promising to pay interest at exorbitant rates, neither the principal nor the interest was repaid to the depositors. This resulted in crimes being registered against the petitioners and two other partners.

Simultaneous

to the criminal investigation, proceedings under the Money Lenders Act and Rules were also initiated against the firm and the partners. This ultimately

W.P.(C) No. 39595 of 2022 -5- resulted in the petitioners being found guilty of the offence under Section 18C (a) and (e) of the Kerala Money Lenders Act, 1958 and being imposed with penalty. The consistent stand taken by the petitioners is that, neither the petitioners nor the partnership firm had accepted deposits from any person. During the course of investigation, it turned out that the other two partners had received deposits by duping the customers into believe that the deposits were being made to the firm. Aggrieved by imposition of penalty, petitioners have preferred appeals before the 10th respondent. This writ petition is filed seeking expeditious consideration of the appeals.

Learned Senior Counsel appearing for the petitioners submitted that, the police, after detailed investigation, filed Ext.P10 final report clearly finding the petitioners to be innocent and the deception and cheating were

W.P.(C) No. 39595 of 2022 -6- committed by the other two partners. It is hence contended that the imposition of penalty based on the very same allegation is illegal.

Learned Government Pleader pointed out that the appeals filed by the petitioners against Ext.P7 were defective and on being put on notice, the petitioners have filed proper appeals and the same are yet to be taken up for consideration.

The petitioners having resorted to their appellate remedy, I deem it appropriate to direct the appellate authority to consider the appeals on merit, rather than deciding the dispute in this writ petition. The writ petition is hence disposed of directing the 10th respondent to consider Ext.P11 appeal filed by the petitioners against Ext.P7 and to pass appropriate orders within one month. While taking the decision, the appellate authority may also consider the finding of the

W.P.(C) No. 39595 of 2022 -7- police in Ext.P10 final report. Til the appeals are disposed of, further proceedings based on Exts.P8 and P9 shall be kept in abeyance. V.G.ARUN JUDGE Scl/

W.P.(C) No. 39595 of 2022 -8- APPENDIX OF WP(C) 39595/2022 PETITIONER EXHIBITS Exhibit P1 AOF THE RECONSTITUTED DEED OF PARTNERSHIP DTD. 2/9/2011 OF M/S. SOUTHERN ENTERPRISES, CHALAKUDY. Exhibit P2 AOF THE AUDITOR'S REPORT- KML ACT DTD. 23/9/2021 TOGETHER WITH PROFIT AND LOSS ACCOUNT AND BALANCE SHEET ISSUED BY THE CHARTERED ACCOUNTANT, C S SADASIVAN. Exhibit P3 AOF THE SUMMONS TOGETHER WITH NOTICE DTD. 17/11/2021 ISSUED BY THE 2ND RESPONDENT. Exhibit P4 AOF THE LETTER OF ADJOURNMENT DTD. 25/11/2021ISSUED BY THE 2ND RESPONDENT. Exhibit P5 AOF THE STATEMENT DTD. 3/12/2021 SUBMITTED BY THE 6TH RESPONDENT BEFORE THE 2ND RESPONDENT. Exhibit P6 AOF THE RESOLUTION TOGETHER WITH AUTHORIZATION DTD. 25/11/2021 OF M/S. SOUTHERN ENTERPRISES, SOUTH CHALAKUDY. Exhibit P7 AOF THE ORDER DTD. 31/12/2021 OF THE 2ND RESPONDENT. Exhibit P8 AOF THE DEMAND NOTICE DTD. 25/2/2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P9 AOF THE REVENUE RECOVERY NOTICE DTD. 15/3/2022 ISSUED BY THE 4TH RESPONDENT. Exhibit P10 AOF THE FINAL REPORT NO. 513/2022 DTD. 30/9/2022 IN C C NO. 1977/2022 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHALAKUDY. Exhibit1 P11 AOF THE APPEAL DTD. 22/11/2022 FILED BEFORE THE APPELLATE AUTHORITY, THRISSUR TOGETHER WITH RECEIPT FROM THE POSTAL DEPARTMENT. Exhibit P12 AOF THE APPEAL NO. 46/2022

W.P.(C) No. 39595 of 2022 -9- DATED 21/12/2022 FILED BY THE 1ST PETITIONER BEFORE THE 10TH RESPONDENT. Exhibit P12(a) AOF THE APPEAL NO. 47/2022 DATED 21/12/2022 FILED BY THE 4TH PETITIONER BEFORE THE 10TH RESPONDENT. Exhibit P12(b) AOF THE APPEAL NO. 48/2022 DATED 21/12/2022 FILED BY THE 2ND PETITIONER BEFORE THE 10TH RESPONDENT. Exhibit P12(c) AOF THE APPEAL NO. 49/2022 DATED 21/12/2022 FILED BY THE 5TH PETITIONER BEFORE THE 10TH RESPONDENT. Exhibit P12(d) AOF THE APPEAL NO. 50/2022 DATED 21/12/2022 FILED BY THE 3RD PETITIONER BEFORE THE 10TH RESPONDENT