Bombay High Court
Santosh Dulichand Sharma And Another vs State Of Maharashtra, Through P.S.O. ... on 26 February, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:2340-DB
CRI. WP 870 of 2014- Judgment.odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL WRIT PETITION NO.870/2014
PETITIONERS : 1. Santosh Dulichand Sharma
Aged about 45 years, Occ- Business.
2. Dayalini Santosh Sharma
Aged about 40 years, Occ - Nil.
Both resident of Ward No.3, Dhamangaon
Rly. District Amravati.
...VERSUS...
RESPONDENTS : 1. State of Maharashtra,
Through Police Station Officer,
Dattapur Police Station,
District Amravati.
2. Assistant Registrar Co-operative Societies,
Dhamangaon, Office at Bhagat Singh
Square, Dhamangaon Railway, Amravati.
3. Advocate General, State of Maharashtra
Office at Fort, Mumbai
(Amendment carried out as per Court's
order)
Ms Ashwini Bhagwat, Advocate h/f Mr. Alok Daga,
Advocate for petitioners
Mr. D.V. Chauhan, Senior Advocate/Public Prosecutor
with Mr. N.H. Joshi, APP for respondent Nos.1 and 2
CORAM : ALOK ARADHE, C.J. AND
AVINASH G. GHAROTE, J.
DATE : 26/02/2025
ORAL JUDGMENT : (PER : AVINASH G. GHAROTE, J.)
CRI. WP 870 of 2014- Judgment.odt
1. The petition questions the FIR bearing Nos.07/2014,
08/2014 and 09/2014 registered on 22/01/2014 and 21/10/2013 at
Police Station Officer, Dattapur District Amravati for the offence
punishable under Section 420 r/w 34 of Indian Penal Code (IPC) and
Section 39, 41 and 42 of the Maharashtra Money Lending
(Regulation) Act, 2014 (for short hereinafter, "Act of 2014"). It also
seeks to declare Section 34 of the aforesaid Act of 2014 as ultra vires
to Article 21 of the Constitution. The challenge to the vires of
Section 34 of the Act of 2014, is not being pressed on account of
which we are not dealing with the same.
2. We have heard Ms Ashwini Bhagwat, learned Counsel
for the petitioners and Mr. D.V. Chauhan, learned Senior
Counsel/Public Prosecutor along with Mr. N.H. Joshi, learned
Additional Public Prosecutor for the respondent Nos.1 and 2.
3. Ms Bhagwat, learned Counsel for the petitioners
contends that in light of the factual background, as indicated in the
petition, and specifically the fact that the aforesaid offences have
been registered against the petitioners in respect of three sale-deeds
dated 18/03/2000 by one Sanjay Choudhari in favour of the
petitioner No.1; sale-deed dated 09/06/2000 by Dilip Tarone in
favour of the petitioner No.2 and sale-deed dated 14/10/2010 by
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Suman Jare in favour of the petitioner No.2, the Act of 2014 having
come into force on 04/04/2014, cannot be applied to the petitioners
for the purpose of registering the offences under Sections 39, 40
and 41 thereof. It is also contended that considering the aforesaid
sale-deeds, which are duly registered documents and more than a
decade old the offence under Section 420 r/w 34 of IPC also ought
not to have been registered as for the entire duration from their
execution and registration till the filing of the FIR in 2013 and 2014,
no proceedings have been taken out, to take any exception to them or
to challenge them. She, therefore, contends that the FIRs indicated
above need to be quashed and set aside. In support of her contention,
she relies upon Bhanudas S/o Baburao Dalve Vs. The State of
Maharashtra, Through Police Station Naldurg, Tq. Tuljapur, District
Osmanabad and another [Criminal Application No.3426/2022,
decided by the learned Division Bench of this Court at Aurangabad
on 25/11/2024] and so also Baliram S/o Ashroba Kadape and others
Vs. The State of Maharashtra, Through Principal Secretary, Home
Department, Mantralaya, Mumbai and others, 2018 ALL MR
(Criminal) 2701.
4. Mr. Chauhan, learned Senior Counsel/Public Prosecutor
appearing for the respondent Nos.1 and 2 very fairly concedes to the
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position, that on account of the provisions of Section 39, 40 and 41
of the Act of 2014 being penal in nature, they would not be
applicable retrospectively. He, however, submits that insofar as the
offences registered under Section 420 r/w 34 of IPC, they ought to be
permitted to proceed ahead, as there is no statutory prohibition for
continuing the prosecution in that regard.
5. Insofar as the provisions of Section 39 of the Act of 2014
is concerned, the learned Division Bench of this Court in Baliram
Kadape (supra) has categorically held that the provisions of the Act
of 2014 would not be applicable to the transactions, which took place
prior to its coming into force on 24/02/2014 as the Act cannot be
retrospective in nature, as though Section 39 of the Act of 2014 was
analogous to Section 32 B of the Bombay Money-Lenders Act, 1946
(for short hereinafter "Act of 1946"), however, under the Act of 1946
the punishment for the first offence was upto one year imprisonment,
which has been increased to five years and the offence has been
made cognizable under Section 48, which it was not so under the Act
of 1946. This has been followed by another Division Bench in
Bhanudas Baburao Dalve (supra) and nothing has been pointed out
to us to take a contrary view.
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6. Insofar as the offences under Section 40 and 41 of the
Act of 2014 are concerned, which are analogous to Section 32 A and
32 B of the Act of 1946, there is a marked difference in the language
of both the provisions, which can be discerned from a comparison of
the same, which can be apparent from the following table:
Section 32 A and 32 B of the Bombay Section 40 and 41 of the Maharashtra
Money-Lenders Act, 1946: Money Lending (Regulation) Act, 2014:
40.Penalty for making false statement.
32A. Penalty for making false statement.
Whoever in an application for grant
Whoever in any document required by,
of licence or renewal of licence, or in
or for the purpose of, any of the
any document required by, or for the
provisions of this Act, wilfully makes a
purpose of, any of the provisions of
statement in any material particulars
this Act willfully makes a statement
knowing it to be false, shall, on
in any material particulars knowing
conviction, be punished with
it to be false, shall, on conviction, be
imprisonment for a term which may
punished with imprisonment of
extend to two years or with fine which
either description for a term which
may extend to five thousand rupees or
may extend to two years or with fine
with both.
which may extend to twenty-five
thousand rupees or with both.
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32B. Penalty for obtaining licence 41. Obtaining licence under fictitious
under fictitious name, carrying on name, carrying on money-lending at a
money-lending business without valid place not mentioned in licence, etc.
licence and entering into agreement in
the course of money-lending business
carried on under fictitious name.
Whoever,-
Whoever, -
(a) obtains a licence in the name which
(a) obtains a licence in the name which
is not his true name or carries on the
is not his true name or carries on the
business of money-lending under the
business of money-lending under the
licence so obtained ; or
licence so obtained, or
(b) carries on the business of money-
(b) carries on the business of money-
lending at any place not mentioned in
lending at any place without holding a
the licence authorizing him to carry on
valid licence authorizing him to carry
such business ; or
on such business at such place, or
(c) enters into any agreement in the
(c) enters into any agreement in the
course of business of money-lending
course of business of money-lending
without a valid licence, or under a
without a valid licence, or under a
licence obtained in the name which is
licence obtained in the name which is
not his true name, shall, on conviction,
not his true name, shall, on conviction,
be punished,-
be punished, -
(i) for the first offence, with
(i) for the first offence, with
imprisonment of either description
imprisonment of either description
which may extend to one year or with
which may extend to one year or with
fine which may extend to rupees fifteen
fine which may extend to rupees one
thousand or with both, and
thousand and five hundred or with
both, and (ii) for the second and subsequent
offence, in addition to or in lieu of, the
(ii) for the second or subsequent
penalty specified in clause (i), with
offence, in addition to, or in lieu of, the
imprisonment of either description
penalty specified in clause (i), with
which shall not be less than five years,
imprisonment which shall not be less
where such person is not a company,
than two years, where such person is
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not a company, and with fine which and with fine which shall not be less
shall not be less than rupees five than rupees fifty thousand, where such
thousand, where such person is a person is a company.
company.
7. The above table would demonstrate the nature of
difference in the language of both the provisions and would indicate
that the provisions of Section 40 of the Act of 2014 has been
expanded by adding the expression "an application for grant of
licence or renewal of licence" and the fine has been increased from
upto five thousand rupees, to upto twenty five thousand rupees.
Insofar as the provisions of Section 41 of the Act of 2014 are
concerned, the fine has been increased from Rs.1,500/- to
Rs.15,000/- for the first offence and the sentence has been increased
from two years to five years and the fine from Rs.5,000/- to
Rs.50,000/- in case the offence is by a company. It would therefore
apparent that there is a marked difference between the analogous
provisions, as contained in the two Statutes. It is a settled position of
law that a provision, which prescribes a higher penalty, cannot be
made applicable retrospectively, as that adversely affects the right of
a citizen which has already accrued in his favour, to be treated in
accordance with the law as was then prevailing.
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8. Considering the above provisions, insofar as the
provision under Section 39, 40 and 41 of the Act of 2014 is
concerned, since it relates to the transactions before coming into
force the said Act, the same cannot be permitted to continue, as
doing so would be to hold that the provisions of the Act of 2014
would apply with retrospective effect, which is not the legal position
at all.
9. Insofar as the prosecution under Section 420 r/w 34 of
IPC is concerned, it would however be a different situation
altogether, as the same would clearly be tenable and would be liable
to be continued.
10. In the result, we partly allow the writ petition by setting
aside and quashing the FIR bearing Crime Nos.07/2014, 08/2014
and 09/2014, insofar as they relate to offences under Section 39, 40
and 41 of the Act of 2014 are concerned. The prosecution vis-a-vis
Section 420 r/w 34 of the IPC, in the above FIRs instituted against
the petitioners, however, shall continue and shall be tried in
accordance with law. Rule is made absolute in the above terms.
(AVINASH G. GHAROTE, J.) (CHIEF JUSTICE)
Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 07/03/2025 15:33:54
