2012 ALL MR (Cri) 1210
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
A.P. BHANGALE, J.
Vijay S/O. Shivprasadji Kedia Vs. The State Of Maharashtra
Criminal Application No. 3898 of 2007
2nd December, 2011
Petitioner Counsel: Mr J. B. KASAT
Respondent Counsel: Mr A. M. DESHPANDE
Criminal P.C. (1973), S.258 - Bombay Money Lenders Act (1946), S.2(9)(f) - Termination of proceedings - Application for - Applicant allegedly involved in money lending transaction without license - Averment in complaint prima facie indicate that applicant had obtained blank cheque by way of security, unauthorisedly filled it with amount of Rs.30,000/- and then on pretext of cheque dishonour, sought to prosecute first informant - Held, looking into averments, in order to judge the factual questions involved parties must be given opportunity to lead evidence - Termination of proceedings cannot be allowed.
Cases Cited:
Sohel Janmohammad Memon and others Vs. State of Maharashtra, 2006 ALL MR (Cri) 2703 [Para 5]
Sitaram Rathi Vs. Sitaram Koli, 1984 (2) Bom. CR 819 [Para 6]
JUDGMENT
JUDGMENT :- By way of this Application filed under section 482 read with Section 483 of the Code of Criminal Procedure (in short "Cr.P.C."), the applicant seeks to quash and set aside the common order dated 5.12.2006 passed by the learned Chief Judicial Magistrate, Amravati { in short "CJM"} (below Exh.11 and 12) in Summary Criminal Case No.5108/2006 whereby, after perusing the chargesheet and the case papers, the learned CJM refused to grant any relief sought by applicant, seeking to stop or terminate the proceedings in the criminal case. Learned CJM concluded after making reference to provisions of Bombay Money Lenders Act, 1946 ( hereinafter "the said Act") with reference to "loan" defined under section 2(9)(f), indicating that the facts are required to be examined on the basis of evidence of witnesses and without evidence they cannot be decided and, as such, proceedings cannot be stopped under section 258 of the Cr.P.C. Aggrieved by the order passed by the learned CJM, the applicant had challenged the said order by means of Criminal Revision Application No.155/2007 which also came to be dismissed by learned 4th Ad-hoc Additional Sessiosn Judge, Amravati by order dated 1.10.2007.
2. Mr. J.B. Kasat, learned Advocate appearing on behalf of the applicant took me through the averments of the oral report which was lodged by one Shantanu Ganpatrao Chavan, in which he appears to have stated that in the year 1999 during illness of his wife, he took a loan from Shri Vijay Shivprasad Kedia, R/o Khaparde Bagicha, Amravati @ 10 per cent per annum, amounting to Rs. 5,000/- in lieu of which, he used to pay Rs. 500/- per month towards interest till the year 2004. Although a sum of Rs. 40,000/- was paid, the alleged money-lender demanded an amount of Rs. 30,000/- as outstanding dues. It is further averred by first informant that Mr. Kedia had also obtained a blank cheque bearing no. 470402 in which he has filled in the sum of Rs.30,000/- and as that cheque was dishonoured, lodged prosecution against the first informant. Mr. Kedia continued to demand a sum of Rs. 30,000/- and through his cronies assured to withdraw the case from the Court if the amount is paid. But first informant could not pay the amount.. According to the first informant, since he was in dire need of loan in the sum of Rs.5,000/- he had given a blank cheque which was filled in by Mr. Kedia in his own handwriting, writing a sum of Rs.30,000/-. According to the first informant, a plethora of other persons also took loan on interest from Mr. Kedia who used to fill in the amount on the cheque and on the ground of dishonour had prosecuted several persons. Thus, a complaint was made to Commissioner of Police on the ground that Mr. Vijay Kedia is indulging in money-lending transactions without having money lending license. It was this prosecution which was sought to be challenged on the ground of bar of limitation as also with prayer to stop the proceedings and both the prayers by concurrent orders came to be rejected, at the hands of the Courts below.
3. Mr. J B Kasat, learned counsel for the applicant submitted that in view of Section 2 (9) (f) of the said Act, an advance of any sum exceeding Rs. 3000/- made on the basis of a negotiable instrument is outside the definition of 'loan' and, therefore, the learned CJM as well as learned Adhoc Additional Sessions Judge committed an error of law in rejecting the prayers of stopping the proceedings.
4. Considering the impugned orders as also the averments in the oral report, one could not have said at that stage without evidence on record as to whether the amount of loan advanced at interest was on the basis of a negotiable instrument i.e. cheque as alleged in this case. The averments prima facie would indicate that money-lender used to advance amounts on interest @ 10 per cent per annum and further used to recover the amount of interest. According to the first informant, the money-lender had obtained blank cheque which he had unauthorisedly filled in by mentioning a sum of Rs. 30,000/- on it and furthermore on the pretext that cheque was dishonoured, sought to prosecute the first informant under section 138 of the Negotiable Instruments Act. Thus, looking to the averments in the oral report i.e. complaint, the question as to whether the transaction is based on Negotiable Instrument; whether it is outside the clutches of definition of 'loan' as defined Section 2(9) (f) of the Bombay Money Lenders Act are questions and as rightly been observed by the Courts below; the parties must be given an opportunity to lead evidence to judge the questions involved.
5. The ruling in Sohel Janmohammad Memon and others vs. State of Maharashtra : 2006 ALL MR (Cri. 2703) is distinguishable as it was in respect of an application for discharge which was rejected.
6. Mr A P Deshpande, learned APP for respondent-State submitted that the loan in the present case, however, as averred by the first informant, was not advanced on the basis of negotiable instrument (cheque) but money lender had obtained security in the form of a blank cheque; and as the blank cheque was obtained by the money lender; the facts are distinguishable. Learned Advocate for the applicant also made reference to the ruling in Sitaram Rathi vs. Sitaram Koli: 1984 (2) BOM CR 819, in order to submit that the post-dated cheque is not a negotiable instrument within the meaning of said Act. This submission is not acceptable because there is a distinction between a post-dated cheque and a blank cheque. The blank cheque unless filled in by consent express or implied from the borrower; cannot come within the definition of "Negotiable Instrument". The questions as to whether it is a negotiable instrument or a blank postdated cheque handed over by the borrower but not amounting to negotiable instrument are questions which will have to be considered in the light of evidence to be led in the case. Therefore, considering the prima facie averments in the complaint in the present case and the record, in my opinion, the impugned orders passed by the Courts below were legal, proper and correct and needs no interference. The proceedings must reach it's logical end on merits.