Bombay High Court
Atul S/O. Harishchandra Danej vs State Of Maharashtra Thr. P.S. ... on 28 June, 2021
Bench: V.M. Deshpande, Amit B. Borkar
1 Cri.APL No.840.18-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO. 840 OF 2018
Atul S/o. Harishchandra Danej,
Aged 44 Years, Occupation Business,
R/o. Sarafa Line, Anjangaon Surji,
Tahsil Anjangaon Surji, Dist. Amaravati,
M.No. 9822756224. .....APPLICANT
. . . VERSUS . . .
1. State of Maharashtra Through
Police Station Anjangaon Surji,
Tahsil Anjangaon Surji,
Dist. Amaravati.
2. The Assistant Registrar,
Cooperative Societies, Anjangaon Surji,
Office at Krishi Utpann Bazar Samiti
Premises, Anjangaon Surji, Tahsil
Anjangaon Surji, Dist. Amaravati. .....NON-APPLICANTS
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Shri K. B. Zinjarde, Advocate for applicant.
Shri S. M. Ghodeswar, Additional Public Prosecutor for Non-applicant/State.
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CORAM : V. M. DESHPANDE AND
AMIT B. BORKAR, JJ.
DATE : 28.06.2021.
ORAL JUDGMENT : (PER AMIT B. BORKAR, J.)
1. Heard.
2. Rule. Rule is made returnable forthwith.
3. By this application under Section 482 of the Code of
Criminal Procedure, the applicant has challenged registration of
the First Information Report No. 125/2018 dated 22.5.2018
registered with the non-applicant no.1 Police Station, at the
instance of the non-applicant no.2.
4. The First Information Report came to be registered
against the applicant with the allegation that the applicant had
advanced loans to the persons, who are residing outside area of
licence granted to the applicant. It is alleged that due to
disbursement of loan to the persons outside area of licence, many
farmers are denied benefit of loan waiver scheme of the State
Government. With the said allegations, offence under Section 41
of the Maharashtra Money-Lending (Regulation) Act, 2014 (for
short "the Act of 2014") was registered against the applicant.
5. The applicant, therefore, filed present application
challenging registration of the First Information Report. This
Court on 24.09.2019, issued notice to the non-applicants.
6. The non-applicant no.2 in pursuance of notice, filed
reply and it is stated that the licence was issued to the applicant
for the purpose of carrying money-lending business in Amravati
district. Therefore, it was obligatory on the part of the applicant
to carry on business of money-lending within the area of
Anjangaon Surji Taluka. It is stated that the applicant advanced
loan to borrowers who were not resident of Amravati district.
7. We have carefully considered the contents of the First
Information Report. After meaningful scrutiny of the First
Information Report, in our view, the point involved in the present
application is, whether advancing of loans to the borrowers
residing outside area of licence, can attract penal consequences as
contemplated by Section 41 of the Act of 2014.
8. To address the question formulated by us and for better
appreciation of the contentions urged by the learned Advocate
appearing for the parties, it would be advantageous to reproduce
the provisions of Section 2(3) of the Act of 2014, which defines
expression, "business of money-lending" and the definition of
"debtor" under Section 2(7) of the Act of 2014. The definition of
"business of money-lending" in the Act of 2014, reads thus:
"Section 2 (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."
9. The definition of "debtor" in the Act of 2014 reads thus:
"Section 2 (7) - "debtor" means a person to whom a loan is
advanced whether in cash or kind and includes his successor
in interest or surety".
10. Section 4 of the Act of 2014, which puts embargo on
carrying on of the business of money-lending except in the area
for which the money-lender has been granted a licence. Section 4
of the Act of 2014 reads as under:
"4. Money-lender not to carry on business of money-lending
except for area under licence and except in accordance with
terms of licence - No money-lender shall carry on the
business of money-lending except in the area for which he
has been granted a licence and except in accordance with
the terms and conditions of such licence."
11. The offence registered against the applicant is under
Section 41 of the Act of 2014, which reads as under :
"41. Obtaining licence under fictitious name, carrying on money-
lending at a place not mentioned in licence, etc.
Whoever,-
(a) obtains a licence in the name which is not his true name or
carries on the business of money-lending under the licence so
obtained; or
(b) carries on the business of money-lending at any place not
mentioned in the licence authorizing him to carrying on such
business; or
(c) enters into any agreement in the course of business of money-
lending without a valid licence, or under a licence obtained in the
name which is not his true name, shall, on conviction, be
punished,-
(i) for the first offence, with imprisonment of either description
which may extend to one year or with fine which may extend to
rupees fifteen thousand or with both, and
(ii) for the second and subsequent offence, in addition to or in
lieu of, the penalty specified in clause (i) with imprisonment of
either description which shall not be less than five years, where
such person is not a company, and with fine which shall not be
less than rupees fifty thousand, where such person is a company".
12. Section 41 of the Act of 2014 creates offence for
carrying on business of money-lending at the place not mentioned
in the licence authorising him to carry of such business.
13. The expression "business of money-lending" has been
defined to mean business of advancing loan. The expression
"carries of business" implies that there must be some real ,
systematic and organized course of activities or conduct with a set
purpose of money profit. There must exist the characteristic of
volume, frequency, continuity and system indicating an intention
to make profit. No single test is decisive of the intention to carry
on a business. The expression "carrying on business", has to be
interpreted taking into consideration object and scheme of the Act
of 2014. The Act of 2014 and in particular, sub-section (3) of
Section 2 defines business of money lending to mean business of
advancing loans. The Act has defined word "debtor" but neither
Section 41 nor Section 4 of the Act of 2014 has any reference to
the word 'debtor'. The essential ingredient offence is the word
"carries on business", which is defined as business of advancing
loans. Therefore the expression "carries on business" needs to be
interpreted in relation to place of advancing of loan and not in
relation to where the debtor resides. To constitute a business as
contemplated by sub section (3) of Section 2 the act of advancing
of a loan is necessary. It is not dependent on residence of the
debtor. The expression "place" mentioned in the licence in sub
clause (b) of Section 41 of the Act of 2014 cannot interpreted in
relation to residence of the debtor since the business as
contemplated in the provisions of the Act of 2014 is restricted to
advancing of loan.
14. In the facts of the present case, the allegation and the
material placed on record by the non-applicants, is not that the
applicant went outside the district and advanced loans to the
debtors residing outside area of licence. Merely because the
applicant had advanced loans to the debtors residing outside
area of licence would not attract the provisions of sub-section (b)
of Section 41 of the Act of 1914. Even, in the reply filed by the
non-applicants, it is not the case of the non-applicants that the
applicant has advanced loan by opening a place of business
outside area of licence on the contrary it is stated in the reply that
applicant has advanced loan to farmers from the place mentioned
in the license.
15. This Court in Criminal Application No.581 of 2018 has
already held that a person cannot held liable under Section 41 of
the Act of 2014 if he has advanced loan from the place mentioned
in the license.
16. The parameters of exercise of powers conferred on this
Court under Section 482 of the Code of Criminal Procedure being
settled, that in order to prevent abuse of process of Court and to
secure ends of justice, this power can be exercised, then there is
no doubt that this is one case where this power needs to be
exercised. In terms of the decision of the Apex Court in the case
of State of Haryana Vs. Bhajanlal 1992 reported in Supp (1) SCC
335, the power under Section 482 of the Code of Criminal
Procedure can be exercised by this Court, where the allegations
made in the First Information Report, even if they are taken at
their face value and accepted in their entirety, do not prima facie
constitute an offence under sub-section (b) of Section 41 of the
Act of 2014. Therefore, continuance of the proceedings against
the applicant would amount to abuses of process of Court.
17. We, therefore, pass the following order:
First Information Report No.125/2018 dated 22.5.2018
registered with the non-applicant no.1 Police Station, Charge-
Sheet No.74/2018 and Regular Criminal Case No.61/2018
pending before the Court of Judicial Magistrate First Class,
Anjangaon Surji, District Amravati are quashed and set aside.
Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
