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2021 DIGILAW 948 (BOM)

Atul v. State of Maharashtra

2021-06-28

AMIT B.BORKAR, V.M.DESHPANDE

body2021
JUDGMENT Amit B. Borkar, J. - 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. 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. 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. 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. In terms of the decision of the Apex Court in the case of State of Haryana Vs. Bhajanlal, (1992) Supp1 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.