Anuplal Biswas v. Davanath Jha — 1966 DIGILAW 126 (PAT)

Judgment G.N.Prasad, J. 1. In both these cases the petitioner is the plaintiff of two money suits which were heard analogously and disposed of by a common judgment by the Second Additional Subordinate Judge of Purnea, dated the 23rd July, 1904. One of the suits was Money Suit No. 54 of 1962 for recovery of a sum of Rs. 6250/-from the opposite party defendant on the basis of a handnole for Rs. 500.00 and the other was Money Suit No. 30 of 1963 for recovery of Rs. 1,100.00 from the defendant on the basis of another handnole for Rs. 885. In the order portion of his judgment, the learned Additional Subordinate Judge made the following direction: "It is, therefore, ordered that the suits be decreed with costs. The plaintiff has admitted in his evidence that he realises double the quantity of paddy advanced by him as loan. His evidence also shows that the paddy is generally returned after six months. This means that he charges interest at the rate of 200 per cent per annum. This shows that he is a usurer of the worst type and a blood sucker. I, therefore, disallow him pleaders fee and future interest". 2. Against the decrees in the two suits, the defendant had preferred appeals before the District Judge namely. Money Appeals Nos ,11 and 33 of 1964. 3. On 28-7-1964 the defendant opposite party filed an application in the trial court praying that necessary steps be taken for the punishment of the plaintiff decree-holder under Sections 19 and 20 of the Bihar Money-lenders Act (Bihar Act III of 1938), In support of this application it was mentioned in paragraph 2 of the petition that the plaintiff, who is a registered money lender, wilfully contravened the provisions of Clause (a) of Sub-section (1) of section 7 of the Act which is evident from, and, has been satisfactorily proved by his own evidence in the money suits to the effect that he does not keep any account of the loans advanced to different persons. 4. Cause was shown by the petitioner plaintiff wherein several grounds were put forward for rejection of the petition of the defendant dated "28-7-64. 5. 4. Cause was shown by the petitioner plaintiff wherein several grounds were put forward for rejection of the petition of the defendant dated "28-7-64. 5. By the impugned order passed by the learned Additional Subordinate Judge on 11-12-64, he has directed that a report should be made to the Collector for cancelling the licence of the plaintiff as contemplated by Sec.19 of the Act. He has further directed that a complaint should be filed against the plaintiff for his prosecution under Sec.20 of the Act. 6. At this stage, it would be convenient to refer to the relevant provisions of the Act. Sec.19, which deals with the power of the Collector to cancel the certificate of a registered money-lender, provides inter alia: "Wherein any suit brought in respect of a loan by a registered money-lender or in respect of any security taken for a loan by a registered money-lender, the court is of opinion that registered money-lender has been guilty of fraud or of any contravention of the provisions of this Act, or is otherwise unfit to carry on the business of money-lending, the court shall make a report to the Collector ......." Sec.20 provides for penalty for the contravention of the provisions of Section 7 of the Act and is in the following terms: "(1) If any money-lender or his agent wilfully contravenes any of the provisions of Clause (a) of Sub-section (1) of Section 7, such money-lender or agent, as the case may be, shall be punishable with imprisonment which may extend to one year or with fine not exceeding five hundred rupees, or with both. (2)Any money-lender who contravenes any of the provisions of Section 7 other than the provisions of Clause (a) of Sub-section (1) of that section shall be punishable with fine not exceeding five hundred rupees". A brief reference may also be made to Section 7 of the Act. Clause (a) of Sub-section (1) of Section 7 imposes an obligation over a registered moneylender to regularly record and maintain an account showing for each debtor the date of the loan, the amount of the principal of the loan and the rate of interest charged, the amount of every payment received by the money-lender along with the date of such payment and any other term which may be agreed upon between the money lender and the debtor. The other clauses of Sub-section (1) of Section 7 deal with other matters such as grant of a receipt with date, stamped wherever necessary, in respect of every sum paid by the debtor or his agent towards the loan or sending to the debtor a copy of the entries of records maintained under Clause (a) of Sub-section (1) of Section 7 and the like. 7. I will first deal with the validity of the order passed by the court below for the filing of a complaint against the petitioner for his prosecution under Sec.20 of the Act. It will be noticed that unlike Sec.19. Sec.20 makes no mention of any suit or any court. In other words, a prosecution for an offence under Sec.20 does not contemplate that there must have been a suit before a Court in respect of a loan advanced by a registered moneylender. In other words, this provision of the Act is independent of the other provision namely, Sec.19 where the opinion or a report of a court is necessary. Naturally the question arises as to whether the court below had any jurisdiction to direct that a prosecution should be launched against the petitioner for an alleged contravention of the provisions of Section 7 of the Act. 8. That takes us to the Code of Criminal Procedure. Sec. 476 of the Code lavs down Hie procedure which a court, here a civil court, has to follow where it is of the opinion that it is necessary or expedient in the interest of justice that a complaint should be filed by the court for prosecution in respect of certain offences affecting the administration of justice. Reference has been made therein to offences mentioned in Clauses (b) and (c) of Sub-section (1) of Sec.195 of the Code. Those offences arc offences against public justice mentioned in Sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209, 210, 211 and 228 of the Penal Code where such offences are alleged to have been committed it or in relation to any proceeding in any court as also offences relating to documents produced in court such as offence under Sections 463, 471, 475 and 476 of the Penal Code. It is manifest, therefore, from a consideration of the relevant provisions of the Code of Criminal Procedure, that the power of a Civil Court, to make a complaint in respect of certain offences, is of a limited nature and can be exercised under certain conditions in respect of the offences mentioned in Clauses (b) and (c) of Sub-section (1) of Sec.195 of the Code. Outside those provisions, there is no power in the civil court to make a complaint in respect of any criminal offence. Therefore, there can be no manner of doubt that the learned Additional Subordinate Judge, in the present case had no authority whatsoever to direct the filing of a complaint against the petitioner for his prosecution under Sec.20 of the Act. 9. Turning to the provisions of Sec.14) of the Act, it will be noticed that the court can make a report to the Collector under that section where, in a suit brought by a registered money lender in respect of a loan, it is of the opinion that the registered money lender has been guilty of fraud or of any contravention of the Act or is otherwise unfit to carry on a business of money lending. In other words, the court must be satisfied with respect to one of these three matters to justify the exercise of its powers of making a report to the Collector. Further, the opinion of the court to that effect must be formed in the suit brought before it by the registered money lender in respect of loan. 10. Keeping in view these provisions of Sec.19 of the Act, it is manifest that the opinion of the Court, in regard to one or more of the three matters mentioned in Sec.19, must be recorded by it while dealing with the suit brought before it by the registered money lender in respect of a loan. It is not open to the court to record any such opinion outside the scope of the suit. In other words, the opinion must be expressed in the suit itself, and, therefore, at the latest, in the final judgment of the court disposing of the suit. The two money suits in the present ease were disposed of by the learned Additional Subordinate Judge on 23-7-64. Thereafter, the suits were no more ponding in his court. In other words, the opinion must be expressed in the suit itself, and, therefore, at the latest, in the final judgment of the court disposing of the suit. The two money suits in the present ease were disposed of by the learned Additional Subordinate Judge on 23-7-64. Thereafter, the suits were no more ponding in his court. Under the provisions of rule 3 of order 20 of the Code of Civil Procedure, the learned Additional Subordinate Judge had no authority to alter or add to the judgment passed hy him in the suit after he had given the date and signed it while pronouncing it in court. To use a common expression, the learned Additional Subordinate Judge had become functus officio in respect of both the money suits after he had pronounced his judgment thereon on 23-7-64. In those circumstances, it was not open to the learned Additional Subordinate Judge, by a later order, like the one passed by him on 11-12-64 to say something which he did not expressly say in his final judgment disposing of the two suits. 11. The learned Additional Subordinate Judge appears to have been conscious of his limitatiaon in this matter and that is why he referred to the observation which he had made in the order portion of his judgment in the two suits to the effect that "the plaintiff is a usurer of the worst type and a blood sucker". The learned Additional Subordinate Judge thought that this observation of his was sufficient to satisfy the requirement of Sec.19 namely, that the court must be of the opinion that the money lender is otherwise unfit to carry on a business of money lending. But. by saying so in the impugned order, the learned Additional Subordinate Judge has really sought to add something to his judgment in clear contravention of Order 20, Rule 3 of the Civil Procedure Code. In the judgment passed on 23-7-64, the learned Additional Subordinate Judge said two things (i) that the plaintiff charges interest at rate of 200 per cent per annum and (ii) that shows that he is a usurer of the worst type and a blood sucker. In the judgment passed on 23-7-64, the learned Additional Subordinate Judge said two things (i) that the plaintiff charges interest at rate of 200 per cent per annum and (ii) that shows that he is a usurer of the worst type and a blood sucker. Now, the learned Additional Subordinate Judge wants to add a third thing, namely, because the plaintiff is a usurer of the worst type and a blood sucker, so he is otherwise unfit to carry on the business of money lending. The Code of Civil Procedure does not contemplate such addition or alteration in the judgment of a court once pronounced. I am, therefore, of the opinion that in this respect also the order of the learned Additional Subordinate Judge is without jurisdiction. 12. In the result, the order of the Additional Subordinate Judge dated the 11th December 1964 is set aside and the applications are allowed. There will, however, be no order as to costs.