Kirit Bansilal Patil And Anr vs The State Of Mah And Ors
2017 Latest Caselaw 7957 Bom

                                    1         Cr WP 138 of 2007

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                  Criminal Writ Petition No. 138 of 2007

     1)      Kirit s/o Bansilal Patil,
             Age 35 years,
             Occupation : Agriculture.

     2)      Bansilal s/o Babulal Patil,
             Age 62 years,
             Occupation: Agriculture
             Both R/o Lalbag Colony,
             Nandurbar, Dist. Nandurbar.      ..    Petitioners.

                      Versus

     1)      The State of Maharashtra.

     2)      The Police Inspector,
             Nandurbar City Police Station,
             Nandurbar,
             District Nandurbar.

     3)      Madhav Chintaman Padvi,
             Assistant Registrar,
             Cooperative Societies,
             Nandurbar, Taluka Nandurbar,
             District Nandurbar.          .. Respondents.

                                ----
     Shri. V.D. Hon, Senior Advocate, for petitioners.

     Shri. V.S. Badakh, Additional Public Prosecutor, for
     respondent Nos.1 and 2.

     Shri. F.R. Tandale, Advocate, for respondent No.3.
                                 ----

                               Coram:    T.V. NALAWADE &
                                         S.M. GAVHANE, JJ.




::: Uploaded on - 11/10/2017                ::: Downloaded on - 12/10/2017 01:41:51 :::
                                         2       Cr WP 138 of 2007

                   Judgment reserved on : 18 September 2017

                   Judgment pronounced on : 10 October 2017.


     JUDGMENT (Per T.V. Nalawade, J.):

1) The petition is filed for following reliefs. Both

the sides are heard.

"(B) Quash and set aside the complaint No.3 of 2007 and complaint No.4 of 2007 registered with Nandurbar City Police Station for the offence punishable under Sections 25(1), (1-A), 32(1), 32(A) and 32(B)(B) of the Money Lending Act (Annexed at Exhibit "M" and "N" respectively).

(C) Quash and set aside the enquiry report dated 25.9.2006 of the respondent No.3 annexed at Exh."G"."

2) Petitioner No.1 is son of petitioner No.2 and

they live in Hindu joint family. They own and run Jalaram

Jyot Traders shop in the area of Market Committee.

Respondent No.3 is authority created under the provisions

of the Bombay Money-Lenders Act, 1946 (hereafter called

as "the Act") to make inquiry and take action when here is

contravention of the provisions of the Act.

                                                  3        Cr WP 138 of 2007

     3)               One Smt. Karunaben Patil, resident of Shinde,

     Tahsil       and          District     Nandurbar       gave       complaint           to

respondent No.3 on 22-2-2006. One Jagannath Fakira

Patil, resident of Tikhira, Tahsil Shahada, District

Nandurbar gave complaint against the petitioners on 17-6-

2006. There were allegations against the petitioners that

they were doing money lending business illegally. It was

contended in the complaints that they had approached the

petitioners in aforesaid shop of the petitioner for taking

loan with the belief that petitioners were having money

lending licence. It is their contention that they had taken

loan from petitioners. Smt. Karunaben had taken loan of

Rs.1.50 lakh and she was to pay interest at the rate of 3%

per month on this loan. It is the case of Jagannath that he

has taken loan of Rs. four lakh and he was to pay interest

at the rate of 2% p.m. Both the complainants have

contended that when they could not repay some amount

and interest, by saying that security was required, their

agricultural lands were got transferred by the petitioners

in the names of the petitioners and their family members.

It is contended that by creating false record of sale, the

petitioners have grabbed the immovable property of the

4 Cr WP 138 of 2007

complainants.

4) In view of the aforesaid complaints, show cause

notices were issued by the authority to the petitioners for

starting inquiry under the Act. Along with the complaints,

some record was produced by both the complainants.

During inquiry some record was taken over from the

aforesaid shop and residential place of the petitioners by

the competent authority. Inquiry was held in which

opportunity was given to the petitioners to have their say.

5) After making inquiry, the authority has held as

follows :

(i) Petitioners were doing money lending business illegally.

(ii) Transactions made with the complainants by the petitioners were of the nature of money lending.

(iii) Compound interest at the rate not permitted by law, was charged by the petitioners.

(iv) Petitioners got executed sale deeds by representing that security was required for the loan amount and they were money lending transactions.

(v) Petitioners sold the lands which were taken by way of security to third party without informing the third party that the lands were

5 Cr WP 138 of 2007

shown to be sold under sale deed as security in money lending transactions.

(vii) The petitioners had shown the price of land as Rs.10.5 lakh when the land was sold to the third party but the petitioners had demanded Rs.21.5 lakh as principal amount and interest from the complainants.

With the aforesaid observations and findings the authority

had proposed to take appropriate action against the

petitioners under the provisions of the Act and action was

also proposed under section 13B of the Act.

6) Learned Senior Counsel for the petitioners

submitted that the petitioners are agriculturists and the

transactions made in their favour were absolute sale

transactions and false allegations are made against them.

The learned senior counsel submitted that the lands

purchased were not suitable for cultivation and so they

were sold by the petitioners and this circumstance cannot

give an inference that the transactions were made for

business of money lending. The learned senior counsel

placed reliance on the case reported as 2007(3) ALL MR

275 (Ramesh Dhulatrao v. State of Maharashtra) and the

decision given by this Court at this Bench in Criminal

6 Cr WP 138 of 2007

Application No.1150 of 2007 (Hari Shankar Patil v. The

State of Maharashtra) by which this Bench by decision

dated 8-3-2013 had held that the provisions of Section

13B of the Act cannot be used in respect of immovable

property. It is true that in section 13B of the Act the word

"pledged" is used and so this section cannot be used for

taking possession of immovable property. There cannot be

dispute over the propositions made in the aforesaid two

cases by this Court. Though there is this circumstance,

due to this circumstance the entire report of the

competent authority cannot be set aside and the F.I.R.

filed by the authority as a public servant cannot be set

aside.

7) In the Act, in section 2(2) definition of money

lending business is given as under :-

" "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) There is allegation that in the aforesaid shop

the petitioners are doing money lending business. The

7 Cr WP 138 of 2007

circumstances show that the lands purchased by the

petitioners were not purchased for cultivation as within

one year of the transactions the lands were sold to third

party. Further there is circumstance like record showing

that the petitioners were demanding Rs.21.5 lakh as the

amount due against the principal amount and the interest

amount. These transactions do not fall under the

exception given in section 2(9) of the Act. The

circumstances show that for recovery of the amount the

documents like sale deed were got executed in respect of

immovable property. Such transactions are not excluded

under section 2(9) of the Act.

9) There were many transactions made by the

petitioners of giving loan. They had not obtained licence of

money lending business as required by section 6 of the

Act. Further they had charged rate of interest at the rate

of 3% per month. Under the Act, these acts of the

petitioners are illegal and due to contravention,

cognizance can be taken under sections 5, 6, 34 of the Act

though these sections are not mentioned in FIR.

                                             8         Cr WP 138 of 2007

     10)                The provisions of sections 13, 13A and 13B of

the Act show the powers of the authority created under

the Act. By exercising the power, record was taken over

by the authority and the record is mentioned by the

authority in the order. In the cases cited supra on which

reliance is placed by the learned senior counsel for the

petitioners there was attempt to take possession of the

land by using provision of Section 13B of the Act so some

orders were made. It was submitted for the petitioners

that substantive suit is already filed in respect of the

transaction to claim declaration that they were money

lending transactions and so the civil Court will decide the

nature of the transactions. This submission is not

acceptable. If this submission is accepted the aforesaid

provisions will become otiose. In view of the provisions of

the Act and the report of the competent authority this

Court holds that it is not possible to set aside the report

prepared by respondent No.3, competent authority.

However, it can be said that there will not be question of

using provision of section 13B of the Act for taking

possession of the lands if the possession is with the

petitioners. To that extent some relief can be given to the

9 Cr WP 138 of 2007

petitioners.

11) Considering the facts of this case and the

provision of section 35A of the Act offences punishable

under sections 5 and 34 are cognizable. In view of these

provisions and the aforesaid circumstances crime is

registered on the basis of the report given by the

competent authority. This Court has no hesitation to hold

that it is not possible to set aside the report and the F.I.R.

12) On merits it can be said that, there is prima

facie case and there is sufficient material to make out a

prima facie case against the petitioners and the material

is like chits, accounts, extracts prepared by the petitioners

and they are in respect of loan transactions. Affidavits are

filed by the complainants in support of their contentions

and the record. Jagannath has produced more record like

bills and the receipts of charges paid by him even after

the date of the transactions showing that he had not

parted with the possession. Inquiry made by the office of

authority showed that there were not only the aforesaid

transactions but more transactions of similar nature were

10 Cr WP 138 of 2007

made and the persons who had taken loan were from

Korit, Shinde, Patonda of Nandurbar Tahsil and Shahada,

Tikhira and Bupkari of Shahada Tahsil. Even when there

was charge of the loan taken from credit society by the

debtors, no steps were taken to see that the loan was paid

and the charge was removed. These circumstances also

are considered by the competent authority. Thus there is

record of money lending transactions and the interest at

the aforesaid rate was charged by the petitioners. It is not

possible to hold that false allegations are made against

the petitioners.

13) Before parting with the decision, it needs to be

observed that, if the report is submitted by the

investigating officer, the Judicial Magistrate can exclude

the period for which the investigation was stayed by this

Court. In the result following order :

14) The petition is partly allowed. It is hereby

declared that the report of the respondent No.3 cannot be

used to take possession of the agricultural lands involved

in the matter if the possession is with the petitioners and

11 Cr WP 138 of 2007

for that provision of section 13B of the Act cannot be

used. The petition in respect of remaining reliefs is

dismissed. Interim relief is vacated to that extent. Rule is

partly made absolute in the aforesaid terms.

15) Learned Senior Counsel requests for stay to the

judgment and order. The request is refused.

            Sd/-                                     Sd/-
     (S.M. GAVHANE, J.)                      (T.V. NALAWADE, J.)




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