Criminal Application No.67 of 2009

20th August, 2009

Petitioner Counsel: Mr. S. J. SALUNKE
Respondent Counsel: Mr. K. M. SURYAWANSHI

Cases Cited:
G. Sagar Suri Vs. State of U.P., , 2000(2) SCC 636 [Para 6]
State of Haryana Vs. Bhajan Lal, 1992 Suppl.(1) SCC 335 [Para 7]
Ashok Laxman Gote Vs. State of Maharashtra, 2007 ALL MR (Cri) 2389 [Para 9]
Chief Justice of Andhra Pradesh Vs. L.V.A. Dixitulu, 1979(2) SCC 34 [Para 12]

JUDGMENT

JUDGMENT:- Heard Mr. S. J. Salunke, Counsel for the accused/applicants. Original complainant, inspite of service, absent.

2. Complainant approached the Assistant Registrar, Co-operative Societies, Kallamb, against the present applicants (original accused) canvassing that the applicants are indulging in unauthorized money lending business. According to complainant Shivaji, in pursuance to a loan a sale deed dt.13.11.2000 for Rs.30,000/- was per force got from him by Ramling, applicant no.1 in the name of his wife. It was based on such application and having recorded statement of the attesting witness to the document, the learned Assistant Registrar felt that the sale deed is camouflage and attracts infraction of Section 32-B of the Bombay Money Lenders Act, 1946 and, resultantly, he approached Police at Shiradhon on 9th of June, 2008, giving rise to FIR vide Crime No.29/2008. It is this FIR, which is subject of present proceedings, taking recourse to Section 482 of Cr.P.C.

3. Based on sale deed, the purchaser Shardabai was put in possession. There was mutation in the revenue record. The mutation is not challenged at any stage by complainant. It was after 7.12.2006, said Shivaji, with his hirelings, started obstructing peaceful enjoyment of Shardabai/Ramling. RCS No.55/2007 came to be initiated before the learned Civil Judge, Junior Division, Kallamb, wherein the plaintiff Shardabai is bestowed and armed with injunction as recorded by the learned Judge, dt.6.10.2007. The Counsel informs, said order is not varied or challenged in the competent court. The said proceedings are still pending.

4. There is nothing to suggest from said Shivaji the complainant barring few slips and account of his brick kiln business to display that the sale deed dt.13.11.2000 was on account money lending transaction. It is curious, an inquiry was conducted from the office of the Assistant Registrar, Co-operative Societies, in the village. There are no identical sale instances or transactions to reflect that the accused Ramling or his wife Shardabai are indulging in illegal activities or lending money to gullible helpless persons on excessive interest.

5. The fact situation of the present case giving reference to RCS No.55/2007, more lean to indicate that parties were not sailing well at least from Dec.,2006 and since the seller Shivaji could not succeed in the civil proceedings, he has approached the learned Assistant Registrar, Cooperative Societies, under Money Lenders Act to initiate action. The approach of the learned Assistant Registrar, relying on affidavit of Shivaji or attesting witness to the sale deed by itself is prima facie illegal. The learned Registrar should have taken a cautious note that the seller was all throughout in slumber from 2000 till 2006 and the matter came to be reported to the Police on 9.6.2008. The yawning gap between the transaction of sale and approaching the authorities speaks volumes of the complainant's attitude. It suggests that report to Police is used as a lever of oppression than to ventilate legitimate grievance by the complainant. The attesting witness could only state about execution of the sale deed but he has apparently traveled to favour the seller Shivaji. His contention could not have been relied as there was no broker to the transaction. It was a straight deal between the seller and purchaser which has been clarified even to the authorities by Ramling when he was called upon to explain. Ramling filed a report to Superintendent of Police on 20th Jan., 2009, explaining how the complainant Shivaji is harassing and blackmailing him. He informed said Shivaji has demanded Rs.1,50,000/-. Ramling also furnished representation signed by villagers exonerating him of indulging in money lending business.

6. In a matter of G. Sagar Suri and another Vs. State of U.P. and others (2000(2) SCC 636) the Lordships have observed, jurisdiction under Section 482 of Cr.P.C. has to be exercised with great care. The High Court is not to examine the matter superficially. It is to be seen, if a matter, which is essentially of civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. His Lordship observed, before issuance a criminal Court has to exercise great deal of caution. For the accused, it is a serious matter.

7. In the matter of State of Haryana Vs. Bhajan Lal, (1992 Suppl.(1) SCC 335) Apex Court formulated seven categories where exercise of jurisdiction under Section 482 of Cr.P.C. were desirable. Those were the few instances which the Court could have looked into.

8. The next attack from Mr. Salunke, Counsel, was that learned Magistrate should not have taken cognizance of complaint lodged against applicant under Section 32-B of the Bombay Money Lenders Act, 1946.

9. In order to stress his point, learned Counsel took recourse to the judgment in the matter of Ashok Laxman Gote and another Vs. State of Maharashtra in Criminal Application No.145/2007 dt.6th July, 2007 ( 2007 ALL MR (Cri.) 2389). This judgment holds,

" In view of the provisions contained in Section 35-A of the Act, it is clear that the offences under Section 34 and Section 33 alone are cognizable. It, therefore, follows that all other offences under the Act are non cognizable. In view of this, even an offence under Section 32-B of the Bombay Money Lenders Act can be said to be non cognizable."

10. In order to assess the correct legal position, attention to Sections 32-B, 34, 35-A with Section 35-B of Money-Lenders Act, 1947, needs to be given. The relevant Sections are as under:

32-B: Whoever -

(a) obtains a licence in the name which is not his true name or carries on the business of money-lending under the said licence so obtained, or

(b) carries on the business of moneylending at any place without holding a valid licence authorising him to carry on such business at such place 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 one thousand and five hundred or with both, and

(ii) for the second or subsequent offence, in addition to, or in lieu of, the penalty specified in clause (i), with imprisonment which shall not be less than two years, where such person is not a company, and with fine which shall not be less than rupees five thousand, where such person is a company.

34. Whoever fails to comply with or acts in contravention of any provision of this Act, shall, if no specific penalty has been provided for in this Act, be punishable -

(a) for the first offence with simple imprisonment which may extend to (one year) or with fine which may extend to (Rs.5,000) or with both and

(b) For the second or subsequent offence with imprisonment of either description which may extend to (two years or with fine which may extend to Rs.1000) or with both.)

35-A Notwithstanding anything contained in the "Code of Criminal Procedure, 1898, offences punishable -

(a) under Section 34 for contravening the provisions of section 5, and

(b) under section 33, shall be cognizable.

35-B No court shall take cognizance of any offence punishable under section 34 for contravening the provisions of section 18 or section 19, except with the previous sanction of the Registrar.

11. Section 35-A makes it clear as to which of the offenses under the Act shall be cognizable, will not be available to be coined, particularly, in the light of Sections 34 and 32-B. The check and mandate of sanction spelt out in Section 35-B for action under Section 34 is naturally to prevent misuse of powers and provide sound application of mind by superior Authority.

12. A statutory provision should be construed according to intent of legislature and normally such intent is gathered from the language of the provision as observed by the Supreme Court in Chief Justice of Andhra Pradesh Vs. L.V.A. Dixitulu (1979(2) SCC 34).

13. Section 34 of the Bombay Money Lenders Act, 1946, is indeed, a all pervasive Section to take care of other transactions referred in Section 5, 18 and 19 which do not provide specific punishment. It could not be said that effect of Section 34 would be curtailing the powers envisaged under Section 32-B of the said Act.Section 34 is a general provision regarding penalties, while Section 32-B comes into play for carrying out money lending business without valid licence and entering into agreement. The punishment spelt out in Section 32-B and Section 34, except quantum of fine is the same. Section 35-A nowhere contemplates Section 32-B to be non cognizable. In terms of Section 32-B course of taking cognizance under Cr.P.C. is available. The parameters in Section 35-A will not create an obstacle in exercise of powers under Section 32-B. With respect, I am unable to agree to the observation of the Brother Judge, in the matter of Ashok.

14. I hold, the learned Assistant Registrar has powers in terms of Section 32-B of the Bombay Money-Lenders Act, 1946, to initiate proceedings like FIR and the Court has powers for taking cognizance. However, this case, in the light of factual details, indicate that the FIR against the present applicant is a lever used to oppress, humiliate and press the accused/applicant Ramling to succumb to the illegal demands of the complainant. The FIR, reading as a whole, will not attract infraction of Section 32-B of the Bombay Money-Lenders Act, 1946. In the circumstances of the case, on examination of facts, the controversy is of a purely civil nature, however, it has been given a cloak of criminal offense.

Consequently, the FIR vide Crime No.29/2008 is quashed. Rule made absolute in above terms.

Ordered accordingly.