Bombay High Court
Uttam Bhikaji Belkar vs The State Of Maharashtra on 22 June, 2017
Bench: R.M. Borde
1 WP343.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
CRIMINAL WRIT PETITION NO. 343 OF 2017
Uttam Bhikaji Belkar,
Age : 32 years, Occu. Service & Agriculture,
R/o. Waranwadi, Taluka-Parner,
Dist. Ahmednagar. Petitioners...
Versus
1. The State of Maharashtra,
Through Police Inspector,
Parner Police Station,
Parner, Taluka-Parner,
Dist. Ahmednagar.
2. Anusaya Sukhdeo Gayakhe,
Age : 57 years, Occu. Agriculture,
3. Balasaheb Sukhdeo Gayakhe,
Age : 41 years, Occu. Agriculture,
Respondent Nos. 2 and 3
R/o. Warwandi, Taluka-Parner,
Dist. Ahmednagar.
4. The Assistant Registrar,
Cooperative Societies, Parner
Presently preceded over by
Sahebrao Dattatray Patil,
Age : 38 years, Occu. Service,
R/o. Loni Road, Parner
Taluka-Parner, District-Ahmednagar. Respondents...
..........
Mr Amol K. Gawali, Advocate for the petitioner
Mr V. M. Kagney, APP for respondent/State
Mr G. K. Thigale, Advocate h/f Mr S. M. Sangale, Advocate for
respondents No. 2 and 3
.............
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2 WP343.2017
CORAM : R. M. BORDE &
A. M. DHAVALE, JJ.
DATE : 22TH JUNE, 2017.
ORAL JUDGMENT (Per R. M. Borde, J.) :-
. Rule. Rule made returnable forthwith. Heard finally with
the consent of the respective parties and taken up for final disposal at
admission stage.
2. The petitioner is praying for quashment of the First
Information Report bearing Crime No. I-14/2017, registered at
Parner Police Station, Dist. Ahmednagar, for offences punishable
u/s 420 of the Indian Penal Code and Section 39 of the Maharashtra
Money Lending (Regulation) Act, 2014, on 19.01.2017. It is alleged
in the FIR that, the petitioner has entered into a transaction of money
lending on 20.04.2009 by way of executing a document which is
claimed to be a money lending transaction. It would not be necessary
to record the factual details since, it is not a matter of dispute that
the transaction of 2009 which is claimed to be the basis, is the only
isolated transaction which is claimed to be a money lending
transaction.
3 WP343.2017
3. On perusal of the FIR, it does appear that the offence is
allegedly committed in the year 2009, and as such, the provisions of
Maharashtra Money Lending (Regulation) Act, 2014 shall not have
any applicability. The allegations levelled against the petitioner shall
have to be scrutinized within the framework of the Bombay Money
Lenders Act, 1946.
4. Section 5 of the Bombay Money Lenders Act, 1946
provides, no money-lender shall carry on the business of money-
lending except in the area for which he has been granted licence and
except in accordance with the terms and conditions of such licence.
Section 34 of the Bombay Money Lenders Act, 1946 prescribes the
penalty for contravention of the Act and sub-section (a) of Section 34
provides the punishment of simple imprisonment for a term which
may extend to one year or with fine which may extend to Rs. 5,000
or with both, for the first offence. The contravention alleged against
the petitioner is in respect of carrying on business of money lending.
It has not been controverted that, after due investigation, it is
revealed that the petitioner has allegedly transacted only with the
respondent and there is only one transaction which is claimed to be a
money lending transaction. For constituting a business of money
lending, there must be multiple transactions, however, in the instant
4 WP343.2017
matter it has not been alleged nor has been brought to our notice
either by respondent-complainant or State that the petitioner is found
to be involved in multiple money lending transactions. Reference
needs to be made to a report of Assistant Registrar, who has
investigated into the matter and has also reported that there is only
one transaction involving the petitioner, which is alleged to be a
money lending transaction and the same is instant one. Reference
can be made to a judgment in the matter of Ka Icilda Wallang and
others....Versus...U. Lokendra Suiam (dead) by Lrs., reported in
AIR 1987 SC 2047, wherein the Supreme Court has observed as
under:
"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's 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. ...."
5. The Division Bench of this Court in the matter of
Mandubai Vitthoba Pawar Versus The State of Maharashtra &
Ors. (Criminal Writ Petition No. 627/2015) decided on 22.09.2015,
has also concluded that for constituting a business of money lending
"there has to be a continuous and systematic activity by application of
labour or skill with a view of earning income and then and then it
5 WP343.2017
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 attract the provisions of the Act and
to brand the petitioner to be a person involved in business of money
lending without having any license."
6. Thus, the isolated transaction allegedly entered into by the
petitioner with the complainant cannot bring him within the
framework of Section 5 of the Bombay Money Lenders Act, 1946, to
brand him as a person carrying on business of money lending. Since
the petitioner cannot be branded as a person carrying on the business
of money lending, the provisions relating to imposition of penalty
contained in Section 34 of the Bombay Money Lenders Act, are not
attracted.
7. Even assuming Section 34 of the Bombay Money Lenders
Act, 1948 provides for penalty of simple imprisonment for a period of
one year in the event of finding of guilt of accused for contravention
of provisions of the Act, Section 468 of the Code of Criminal
Procedure provides bar for taking cognizance after lapse of the period
6 WP343.2017
of limitation. Sub-section 2(b) of Section 468 of Cr.P.C. provides for
the period of limitation of one year for taking cognizance of the
offence if the offence is punishable with imprisonment for a term not
exceeding one year. Even in the instant matter, the offence is
allegedly committed in the year 2009 whereas; FIR is lodged in the
year 2017, which is clearly beyond the prescribed period provided
u/s 468 of the Cr.P.C.
8. The respondent has already initiated civil proceedings in
the shape of Regular Civil Suit No. 356 of 2014, which is stated to be
pending. In the suit presented by the respondent, it has not been
alleged that the petitioner has entered into money lending
transaction. Even otherwise, we do not find sufficient material to
brand the petitioner as a person conducting the business of money
lending.
9. For the reasons recorded above, the petition deserves to be
allowed and same is accordingly allowed.
10. The FIR bearing Crime No. I-14/2017, registered with
Parner Police Station, Dist. Ahmednagar, on 19.01.2017, for offences
punishable u/s 420 and Section 39 of the Maharashtra Money
Lending (Regulation) Act, 2014, stands quashed.
7 WP343.2017
12. Counsel appearing for the respondent has put-forth a
contention relying upon the provisions of Section 18 of the
Maharashtra Money Lending Act, 2014. The argument is not relevant
for the purpose of determination of controversy before us.
13. Rule is made absolute accordingly.
[ A. M. DHAVALE ] [ R. M. BORDE ]
JUDGE JUDGE
sgp
