Bombay High Court
Mandubai Vitthoba Pawar vs The State Of Maharashtra & Ors on 22 September, 2015
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
AURANGABAD BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.627/2015
PETITIONER : Mandubai Vitthoba Pawar
Age 85 years, Occu. Nil,
R/o Javalakh, Tq. Kallamb,
Distt. Osmanabad.
ig ...Versus...
RESPONDENTS : 1. The State of Maharashtra
through the Superintendent of Police,
Osmanabad.
2. The in charge Investigation Officer,
Police Station, Shiradhon, Tal. Kallamb,
Distt. Osmanabad.
3. Bapurao s/o Madhavrao Mane,
The Co-operative Officer Grade-I,
Assistant Registrar Co-operative Societies,
Kallamb, Tq. Kallamb,
Distt. Osmanabad.
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Shri Undre V.S., Advocate for petitioner
Shri K.S. Patil, App for respodnent - State
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CORAM : S.S. SHINDE AND
A.I.S. CHEEMA, JJ.
Date of reserving the judgment : 11.08.2015
Date of pronouncing the judgment : 22.09.2015
::: Uploaded on - 22/09/2015 ::: Downloaded on - 22/09/2015 23:57:38 :::
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2
JUDGMENT (PER : A.I.S. CHEEMA, J.)
1. This writ petition has been filed by the petitioner -
original accused against the FIR No.21/2015 registered against her
at Police Station Shiradhon, Tq. Kallamb Distt. Osmanabad under
Section 39 of the Maharashtra Money-Lending (Regulation) Act,
2014.
2. The co-operative officer Grade-I Kallamb - respondent
no.3, original complainant, has filed the offence alleging that the
petitioner committed offence under the Maharashtra Money-
Lending (Regulation) Ordinance, 2014. As per the FIR, the
petitioner purported to purchase the suit land No.196 by way of
registered sale-deed but actually it was money lending transaction
of the year 1982. Writ Petition however claims that petitioner had
actually purchased the land from Pandurang for consideration in
1982. The FIR has been registered after 33 years. There is civil
litigation pending between Pandurang and the petitioner. The
petitioner is 85 years old lady and is being harassed by the filing of
the FIR. She claims that the FIR needs to be quashed.
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3. On behalf of the respondent nos.1 and 3, affidavit-in-
reply has been filed. The respondent no.3 is working as co-operative
officer Grade-I Assistant Registrar, Co-operative Societies, Kallamb.
It is claimed that one Babasaheb gave affidavit against the petitioner
claiming that the petitioner had given loan of Rs.9,000/- to the
original complainant Pandurang Ghogare and agreement was
executed on 7.10.1982 that land admeasuring 40 R would be given
back after repayment of Rs.9,000/- with interest. Subsequently, yet
another agreement dated 13.8.1991 was executed regarding
payment of Rs.9,000/- and that land would be returned to the
complainant. There was Regular Civil Suit filed as
R.C.S. No.161/1992 regarding the sale-deed in dispute. Copy of the
judgment in Regular Civil Suit No.161/1992 is filed finding that the
sale-deed dated 7.10.1982 executed by Pandurang in favour of
defendant (petitioner) was towards security of loan amount.
Respondent no.3 has claimed in affidavit-in-reply that District Level
Committee Forum of the State Government has concluded that the
petitioner indulged in money lending. Copy of the report filed by
the Committee is annexed with the petition. According to the
respondents, the petitioner, the complainant and other witnesses
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were heard and it was concluded that the petitioner had indulged in
money lending. Consequently, the complaint was made and offence
has been registered vide Crime No.21/2015.
4. We have heard the learned Counsel for both sides
finally. It has been argued by the learned Counsel for the petitioner
that now the Maharashtra Money-Lending (Regulation) Act, 2014
has come into force which makes business in money lending without
licence an offence under Section 39 of the Act. According to him,
relevant Section was 32 B under the earlier Bombay Money-Lenders'
Act, 1946. Earlier, under Sections 35 A and 32 B the offence was
non-cognizable. However, Section 48 of the new Act makes the
offence cognizable. According to him, considering the punishment
as was earlier provided under the old Act the punishment being of
one year, even if a transaction of 1982 was to be said to be of money
lending, the same would be time barred under Section 468 of the
Code of Criminal Procedure, 1973. According to him, even
otherwise whether the said transaction was money lending or what
is still to be decided, as, against the judgment of the civil Court in
Regular Civil Suit No.161/1992, the petitioner has filed Regular
Civil Appeal No.67/2008 which is pending as can be seen from
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Exh.-E filed with the petition. According to the Counsel, for such old
transaction, the provisions of new Act could not have been invoked
to file complaint to the police station only because the new Act
makes the offence cognizable.
5. The learned Additional Public Prosecutor submitted
that although the offence is of 1982, after the new Act has come
into force, the respondent no.3 could register offence and looking to
the provisions of Section 468 of the Code of Criminal Procedure,
1973 there is provision to condone delay. According to him, the civil
suit has now been decided and so the authorities could act. At the
time of arguments, this Court had posed the question to the learned
Additional Public Prosecutor that could a single transaction be
covered under the definition of "business in money lending". The
learned Additional Public Prosecutor did not reply to the question
posed and made rest of the submissions, as discussed above.
6. Although various questions have been raised by the
learned Counsel for the petitioner, we are not entering into those
other aspects as they are not necessary to decide the same in the
present petition which can be disposed of on one point as was raised
by this Court at the time of arguments. On going through the
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record, it is clear that the respondent no.3 has filed the offence on
the basis of only one transaction which is claimed to be of money
lending. Section 39 of the Maharashtra Money-Lending (Regulation)
Act, 2014 relied on by the State reads as under :
"39. Whoever carries on the "business of
money-lending" without obtaining a valid licence,
shall, on conviction, be punished with imprisonment
of either description for a term which may extend to
five years or with fine which may extend to fifty
thousand rupees or with both."
(Emphasis supplied)
7. The term "business of money lending" has been defined
in Sub Section 3 of Section 2 of the new Act as under :
"3. "business of money-lending" means
the business of advancing loans whether in cash or
kind and whether or not in connection with, or in
addition to any other business."
8. The meaning of the word "business" as found in Black's
Law Dictionary 9th Edition inter alia is "a commercial enterprise
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carried on for profit; a particular occupation or employment
habitually engaged in for livelihood or gain".
9. In the matter of Ka Icilda Wallang and
others...Versus...U. Lokendra Suiam (dead) by Lrs., reported in
AIR 1987 SC 2047, the Hon'ble Supreme Court while dealing with
similar matter has observed thus :
"Both the appellate court and the High Court
have found that the plaintiff was not a money-
lender within the meaning of Assam Money
Lenders' Act, 1934. The High Court observed that a
few disconnected and isolated transactions would
not make the plaintiff a person engaged regularly
in money lending business. The approach of the
High Court to the question was correct. ...."
10. In the matter of Central Bureau of
Investigation...Versus...V.C. Shukla and others, reported in (1998)
3 SCC 410, the Hon'ble Supreme Court referred to the word
"business" and observed in paragraph no.27 as follows :
"27. Coming now to the word
"business", we need not search for its meaning in
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Black's Law Dictionary, or Words and Phrases for
this Court has dealt with the word in a number of
cases. In Narain Swadeshi Wvg. Mills v. Commr. of
Excess Profits Tax a five-Judge Bench of this Court
held that the word "business" connotes some real,
substantial and systematic or organised course of
activity or conduct with a set purpose; and the above
interpretation was quoted with approval in
Mazagaon Dock Ltd. v. CIT and Excess Profits Tax.
Again in Barendra Prasad Ray v. ITO this Court
observed that the word "business" is one of wide
import and it means an activity carried on
continuously and systematically by a person by the
application of his labour or skill with a view to
earning an income. ..."
11. The above discussion makes it clear that for it to be a
business there has to be a continuous and systematic activity by
application of labour or skill with a view of earning income when it
could be called "business". In order to do business of money
lending, it would be necessary for the State to point out multiple
activities of money lending done by the petitioner. Merely referring
to one isolated transaction claimed to be a loan transaction or
money lending would not be enough to show that the petitioner was
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involved in "business of money lending" without licence. The FIR in
the present matter read as a whole does not spell out that the
petitioner was doing "business of money lending". This being so, on
the basis of such FIR the prosecution cannot be maintained.
12. We have gone through the various documents put on
record by the petitioner as well as the respondents. There are not
even vague allegations, apart from the present transaction of 1982,
that petitioner was advancing loans to people and getting properties
transferred. This is apart from the fact that it would be necessary for
the FIR itself to spell out in clear terms the transactions which
would prima facie show that business as such of money lending was
being involved into without there being a valid licence.
13. For such reasons, the FIR as it is filed cannot be
maintained. We are proceeding to quash the FIR. However, we make
it clear that looking to the stage, the quashing of present FIR would
be in the nature of discharge of the petitioner and in case the
authorities have evidence of multiple transactions, the present
transaction may be claimed as one of the transactions.
14. For the above reasons, the writ petition is allowed. First
Information Report No.21/2015 registered on 26.3.2015 with Police
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Station, Shiradhon, Tq. Kallamb, Distt : Osmanabad against the
petitioner is quashed.
No order as to costs.
(A.I.S. CHEEMA, J.) (S.S. SHINDE, J.)
Wadkar
