Shri. Vijay S/O. Mahadeorao Kubde vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 6349 Bom

 1808CRWP48.17-Judgment                                                                       1/11


              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.


                CRIMINAL WRIT PETITION NO.  48   OF   2017


 PETITIONER :-                        Shri   Vijay   s/o   Mahadeorao   Kubde,   Aged
                                      about   67   years,   Occ.   Business,   r/o   Kubade
                                      Heights, Gandhi Chowk, Amravati.                  

                                         ...VERSUS... 

 RESPONDENTS :-                  1. State   of   Maharashtra,   Through   Police
                                    Station Officer, City Kotwali Police Station,
                                    Amravati. 
                                 2. Deputy   Registrar,   Co-operative   Societies,
                                    Amravati, Taluka, Amravati. 


 ---------------------------------------------------------------------------------------------------
           Mr.K.H.Deshpande, Sr.Counsel with Mr. Akshay Sudame, 
                                 counsel for the petitioner.
         Mr. S.S.Doifode, Addl.Public Prosecutor for the respondents.
 ---------------------------------------------------------------------------------------------------


                                        CORAM : SMT. VASANTI    A    NAIK & 
                                                    M. G. GIRATKAR
                                                                   ,   JJ.

DATED : 18.08.2017

O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.)

Rule. Rule made returnable forthwith. The criminal writ

petition is heard finally at the stage of admission with the consent of the

learned counsel for the parties.

1808CRWP48.17-Judgment 2/11

2. By this criminal writ petition, the petitioner has sought the

quashing and setting aside of the first information report bearing No.17

of 2017 registered against the petitioner for the offences punishable

under sections 406, 418, 422 and 427 of the Penal Code and section 43

of the Maharashtra Money Lending (Regulation) Act, 2014.

3. The petitioner is a licensed money lender and runs a

jewellery shop in Amravati. On 10/04/2015 the State of Maharashtra

had issued a government resolution deciding to waive the loan of the

farmers of Vidarbha and Marathwada region. According to the

respondents, they had asked the petitioner to submit the list of debtors,

who had pawned the articles/goods with the petitioner towards security

while securing the loan. Initially, according to the respondents, the

names of the list of debtors was required to be supplied, till

31/12/2015. The date for submission of the list was then extended till

31/03/2016. It is not in dispute that the petitioner submitted the list of

the debtors on 29/01/2016. Since the petitioner had not supplied the

names of the debtors village-wise and taluka-wise, the respondents

again asked the petitioner to send the names of the debtors,

accordingly. The petitioner has sent the list of debtors village-wise

/taluka-wise to the respondents on 15/02/2016 and 02/03/2016

respectively. A list of 570 debtors was tendered by the petitioner to the

1808CRWP48.17-Judgment 3/11

respondents. It is the case of the respondents that certain complaints

were received against the petitioner/money lender from some

agriculturists that though they had secured loan from the petitioner by

pawned certain articles with the petitioner towards security, their

names were not included in the lists furnished by the petitioner on

15/02/2016 and 02/03/2016. On the verification of the complaints,

the respondents initiated the action for cancellation of the money lender

licence against the petitioner by serving a couple of show causes notices

on him. The respondents also registered a first information report

against the petitioner for the offences punishable under sections 406,

418, 422 and 427 of the Penal Code and section 43 of the Maharashtra

Money Lending (Regulation) Act, 2014. According to the petitioner,

even if the allegations in the first information report are accepted at

their face value in the entirety, the offences punishable under sections

406, 418, 422 and 427 of the Penal Code and section 43 of the

Maharashtra Money Lending (Regulation) Act, 2014 could not be prima

facie made out against the petitioner. The petitioner has therefore

sought for the quashing and setting aside the first information report.

4. Shri Akshay Sudame, the learned counsel for the

petitioner, submitted by taking this court through the relevant

provisions of the Penal Code and the Maharashtra Money Lending

1808CRWP48.17-Judgment 4/11

(Regulation) Act, 2014 as also the first information report that prima

facie the offences punishable under sections 406, 418, 422 and 427 of

the Penal Code and section 43 of the Maharashtra Money Lending

(Regulation) Act, 2014 cannot be made out against the petitioner. The

learned counsel relied on the judgments reported in (1992) SCC (Cri)

426 (State of Haryana v. Bhajan Lal), (2004) 6 SCC 522 (State of

A.P. v. Golconda Linga Swamy) and (2005) 1 SCC 122 (Zandu

Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque) to submit that

despite the acceptance of the allegations made in the first information

report against an accused at their face value, in the entirety, prima facie

the offence that is registered against the said accused cannot be made

out, the first information report is liable to be quashed and set aside. It

is submitted that according to the allegations in the first information

report, the petitioner had not sent the names of all his debtors to the

respondents, as a result of which, the debtors were deprived of the

benefit of loan waiver scheme to which they could have been entitled in

view of the government resolution dated 10/04/2015. It is submitted

that mistakenly, the names of 50 debtors could not be submitted before

the deadline and the mistake committed by the petitioner was bona fide.

It is submitted that the petitioner cannot be proceeded against for

having committed the offence of criminal breach of trust or cheating or

of dishonestly or fraudulently preventing the debt being available for

1808CRWP48.17-Judgment 5/11

the creditors. It is submitted by taking this court through the provisions

of sections 405, 406, 415, 420 and 422 of the Penal Code and sections

24 and 25 of the Maharashtra Money Lending (Regulation) Act, 2014

that the ingredients of the offences under the said provisions cannot be

made out against the petitioner even if the allegations in the first

information report are accepted in totality, at their face value. It is

submitted that after taking action against the petitioner for cancellation

of his licence, there was no propriety in the action on the part of the

respondents of registering the first information report against the

petitioner for the offences punishable under sections 406, 418, 422 and

427 of the Penal Code and section 43 of the Maharashtra Money

Lending (Regulation) Act, 2014.

5. Shri Doifode, the learned Additional Public Prosecutor

appearing for the respondents, has opposed the prayer made in the

petition. It is submitted by referring to the first information report that

though the petitioner was duty bound to send the names of all his

debtors to the respondents before the extended date for submission of

the list, i.e. 31/03/2016, the petitioner had not submitted the list of all

his debtors before 31/03/3016. It is submitted that in view of the

inaction on the part of the petitioner to furnish the list of some debtors,

who had availed the loan from the petitioner, the debtors were deprived

of the benefit of the loan waiver scheme as per the government

1808CRWP48.17-Judgment 6/11

resolution dated 10/04/2015. It is stated that in the circumstances of

the case, action was initiated against the petitioner under the provisions

of the Maharashtra Money Lending (Regulation) Act, 2014 for the

cancellation of his licence and a first information report was rightly

registered against him. The learned Additional Public Prosecutor

sought for the dismissal of the writ petition.

6. It appears on a reading of the first information report that

the allegation of the respondents against the petitioner is that the

petitioner did not furnish the list of all his debtors before the deadline,

i.e. 31/03/2016, with the result, some of the debtors, who may have

been entitled to the benefit of the loan waiver scheme floated by the

State Government in pursuance of the government resolution dated

10/04/2015 were deprived of the benefit of the said scheme. The first

information report is registered against the petitioner for the offences

punishable under sections 406, 418, 422 and 427 of the Penal Code and

section 43 of the Maharashtra Money Lending (Regulation) Act, 2014.

It would necessary to consider the provisions of sections 406, 418, 422

and 427 of the Penal Code. Section 406 of the Penal Code provides for

the punishment for criminal breach of trust. Criminal breach of trust is

defined under section 405 of the Penal Code. The relevant provision of

section 405 of the Penal Code reads thus:-

1808CRWP48.17-Judgment 7/11

405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".

It is clear from a reading of the provisions of section 405

of the Penal Code that the allegations in the first information report

even if they are accepted at their face value cannot result in prima facie

holding that the petitioner has committed criminal breach of trust. For

attracting the ingredients of section 405 of the Penal Code, a person

should dishonestly misappropriate or convert the property entrusted to

him or on which he has any dominion, or should dishonestly use or

dispose of that property in violation of any direction of law prescribing

the mode in which such trust is to be discharged. There are no

allegations in the first information report that the petitioner had

dishonestly sought to misappropriate the property of the debtors as his

own or had dishonestly disposed of the property. Though the

ingredients of section 405 of the Penal Code cannot be prima facie

attracted, the offence punishable under section 406 of the Penal Code is

wrongly registered against the petitioner. It would now be necessary to

1808CRWP48.17-Judgment 8/11

consider whether the provisions of section 418 of the Penal Code could

be attracted on the basis of the allegations in the first information

report. Section 418 of the Penal Code reads thus:-

418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. - Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

It is clear from a reading of section 418 of the Code that

for attracting the said provision it would be necessary for a person to

cause wrongful loss to another person, whose interest in the transaction

to which the cheating relates, he is bound to protect and cheats the

other person with the knowledge that it is likely that he would cause

wrongful loss to the other person. There is no allegation in the first

information report that the petitioner had with knowledge of causing

wrongful loss to the debtors or likely to cause wrongful loss to the

debtors, cheated the debtors. Even if the allegations in the first

information report are accepted at their face value, prima facie an

offence punishable under section 418 cannot be made out.

1808CRWP48.17-Judgment 9/11

Such is also the case in respect of the offences punishable

under sections 422 and 427 of the Penal Code. The provisions of

sections 422 and 427 of the Penal Code read thus:-

422. Dishonestly or fraudulently preventing debt being available for creditors. - Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any other person from being made available according to law for payment of his debts or the debts of such other person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

427. Mischief causing damage to the amount of fifty rupees. - Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

It is apparent that on the basis of the allegations in the

first information report, the ingredients of sections 422 or 427 of the

Penal Code cannot be prima facie made out. Even for committing

mischief, mens rea or the intention to cause the wrongful loss or

damage to the public or any person would be required. There is no

allegation in the first information report that the petitioner had the

intention to cause wrongful loss or damage to the debtors. There is no

allegation in the first information report that the petitioner had

knowingly caused wrongful loss or damage to his debtors. In the

1808CRWP48.17-Judgment 10/11

absence of any allegation in respect of the knowledge pertaining to the

mischief of causing damage to the debtors, the first information report

could not have been registered against the petitioner for the offence

punishable under section 427 of the Penal Code. The provisions of

section 422 of the Penal Code are also not attracted in this case.

7. Also, the offence punishable under section 43 of the

Maharashtra Money Lending (Regulation) Act, 2014 could be registered

against a money lender only if he contravenes the provisions of sections

24 and 25 of the Act. Section 24 of the Act enjoins a duty upon the

money lender to maintain the accounts and furnish copies of the

accounts. So also, section 25 of the Act of 2014 makes it obligatory for

the money lender to deliver the statement of accounts and copies

thereof to the concerned authorities from time to time. There is no

allegation in the first information report that the petitioner had

contravened the provisions of sections 24 or 25 of the Act by not

maintaining and furnishing the copies of the accounts and by not

delivering the accounts to the respondents from time to time. The

allegation in the first information report is that though the petitioner

was required to furnish the names of all the debtors as per the

government directions, in the resolution dated 10/04/2015 and the

circulars extending the date for furnishing the list of debtors till

1808CRWP48.17-Judgment 11/11

31/03/2016, the petitioner had failed to include the names of some of

his debtors in the list furnished by him in the month of February and

March, 2016. The provisions of sections 24 and 25 of the Maharashtra

Money Lending (Regulation) Act, 2014 cannot be attracted in this case.

Hence, by applying the principles laid down by the Hon'ble Supreme

Court from time to time in the matter of quashing of the first

information report, specially in the judgments reported in (1992) SCC

(Cri) 426, (2004) 6 SCC 522 and (2005) 1 SCC 122, it would be

necessary to quash and set aside the first information report registered

against the petitioner for the offences punishable under sections 406,

418, 422 and 427 of the Penal Code and section 43 of the Maharashtra

Money Lending (Regulation) Act, 2014.

8. Hence, for the reasons aforesaid, the writ petition is

allowed. The first information report bearing No.17 of 2017 registered

against the petitioner for the offences punishable under sections 406,

418, 422 and 427 of the Penal Code and section 43 of the Maharashtra

Money Lending (Regulation) Act, 2014 and the proceedings arising

there from, are hereby quashed and set aside. Rule is made absolute in

the aforesaid terms.

                        JUDGE                                             JUDGE 
 KHUNTE