High Court
Facts
194.2020appln+ (1).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY,BENCH AT AURANGABAD.CRIMINAL APPLICATION NO. 94 OF 20201.Sanjivini W/o Dinesh DeshmaneAge : 49 years, Occ : Agri.,R/o Netaji Nagar, Tuljapur Khurd,Tuljapur, Tq. Tuljapur,Dist. Osmanabad2.Dinesh S/o Bhagwan Desmane(Since deceased)..APPLICANT-VERSUS-1.The State of Maharashtra(Through P.S. Tuljapur, Tq. Tuljapur,Dist. Osmanabad).2.Sudarshan Namdev ShindeAge : 35 years, Occ : Govt. Service,Co-operative Officer, Grade-2,Office of Assistant Registrar,Co-operative Societies, Tq. Tuljapur,Dist. Osmanabad3.Sahebrao Chandarkant BhiseAge : 40 years, Occ : Agri.,R/o Vivekanand Nagar, Tuljapur,Tq. Tuljapur, Dist. Osmanabad..RESPONDENTSANDCRIMINAL APPLICATION NO. 102 OF 20201.Sanjivini W/o Dinesh DeshmaneAge : 49 years, Occ : Agri.,R/o Netaji Nagar, Tuljapur Khurd,Tuljapur, Tq. Tuljapur,Dist. Osmanabad
Legal Reasoning
794.2020appln+ (1).odtmoney lending business, in as much as, it cannot be a matter ofcoincidence that immovable properties are purchased and thereafterreconveyed to the vendors/borrowers or their family members withinshort period of time. They contend that material on record is sufficientto sustain the charge and as such, this is not a fit case for quashing ofprosecution in exercise of powers under Section 482 of the Cr.P.C.11.Having heard the rival submissions, we are of the viewthat the prosecution cannot be continued against the applicants and isliable to be quashed. It is obvious that no penal provision can haveretrospective operation. Section 39 of the Act of 2014 cannot beinvoked in order to punish any person for indulging in money lendingbusiness without licence for transactions prior to 16.01.2014 i.e. thedate of commencement of the Act of 2014. Likewise under the old Acti.e. the Bombay Money Lenders Act, 1946 also prosecution cannot beinitiated by lodging the F.I.R. since the offence was then a non-cognizable offence, as is laid down by a Division Bench of this Court inthe matter of Baliram Ashroba Kadape and others Vs. State ofMaharashtra and others reported in 2018 All MR (Cri) 2701, whichwe have recently followed in the matter of Bhanudas Baburao DalveVs. The State of Maharashtra and another in Criminal ApplicationNo.3426/2022 decided on 25.11.2024. 894.2020appln+ (1).odt12.As regards the sale transaction dated 16.05.2015whereunder the property is stated to be reconveyed after payment ofloan amount vide registered sale deed dated 30.05.2016, we find thatfrom the date of commencement of Act of 2014 on 16.01.2014 till filingof the charge-sheet in March, 2021, there is only one sale transactioncoupled with reconveyence. Assuming a transaction to be a moneylending transaction, it cannot be said merely on the basis of the saidtransaction that the applicants are indulging in illegal money lendingbusiness. The term business would imply the continuous andsystematic activity. We are of the opinion that a solitary transaction ofmoney lending will not attract the rigours of section 39 of the Act of2014 since the same would not amount to carrying out money lendingbusiness. In this regard, we may refer to a judgment of this Court in thematter of Mandubai Vitthoba Pawar Vs. State of Maharashtra,reported in 2015 (3) AIRBomR (Cri) 751.13.In the light of aforesaid, we are of the opinion thatcontinuation of criminal prosecution against the applicants is notpermissible. The criminal prosecution cannot be allowed to becontinued. We, therefore, pass the following order :-ORDER(i)The applications are allowed.(ii) F.I.R. No.436/2019 dated 28.12.2019 registered against 994.2020appln+ (1).odtapplicant No.1-Sanjivini W/o Dinesh Deshmane and applicant No.2-Dinesh S/o Bhagwan Deshmane with Police Station, Tuljapur,Dist.Osmanabad, for the offence punishable under Section 39 of theMaharashtra Money Lending (Regulation) Act, 2014, Charge-sheetNo.94/2020 dated 30.11.2020 and Regular Criminal CaseNo.100/2021 pending on the file of the learned Judicial Magistrate,First Class, Tuljapur, Dist. Osmanabad, are hereby quashed.(iii) F.I.R. No.437/2019 dated 28.12.2019 registered againstapplicant No.1-Sanjivini W/o Dinesh Deshmane and applicant No.2-Dinesh S/o Bhagwan Deshmane with Police Station, Tuljapur,Dist.Osmanabad, for the offence punishable under Section 39 of theMaharashtra Money Lending (Regulation) Act, 2014, Charge-sheetNo.95/2020 dated 30.11.2020 and Regular Criminal CaseNo.101/2021 pending on the file of the learned Judicial Magistrate,First Class, Tuljapur, Dist. Osmanabad, are hereby quashed.(iv)The proceedings in Regular Criminal Case Nos.100/2021 and101/2021 pending on the file of the learned Judicial Magistrate, FirstClass, Tuljapur, Dist. Osmanabad, stood abated against applicantNo.2- Dinesh S/o Bhagwan Deshmane on the date of his demise i.e.on 22.09.2020. [ROHIT W. JOSHI][ SMT. VIBHA KANKANWADI] JUDGE JUDGEsga
Arguments
294.2020appln+ (1).odt2.Dinesh S/o Bhagwan Desmane(Since deceased)..APPLICANT-VERSUS-1.The State of Maharashtra(Through P.S. Tuljapur, Tq. Tuljapur,Dist. Osmanabad).2.Sudarshan Namdev ShindeAge : 35 years, Occ : Govt. Service,Co-operative Officer, Grade-2,Office of Assistant Registrar,Co-operative Societies, Tq. Tuljapur,Dist. Osmanabad3.Bhujang Sopan MahankrajAge : 40 years, Occ : Agri.,R/o Honala, Tq. Tuljapur,Dist. Osmanabad..RESPONDENTS...Advocate for Applicants : Mr.Ganesh J. Kore APP for Respondent- State : Mr.A.M. PhuleAdvocate for respondent No.3 : Mr.Rohit Patwardhan h/f Mr.SatejJadhav...CORAM :SMT. VIBHA KANKANWADI ANDROHIT .W. JOSHI, JJ.DATED : 27 NOVEMBER, 2024.JUDGMENT (PER ROHIT. W. JOSHI, J.) :.Present applications are filed under section 482 of theCode of Criminal Procedure, 1973 (Hereinafter referred to as “Cr.P.C.”for brevity) for quashing F.I.Rs. and consequent criminal casesregistered against the applicants, for the offence punishable under 394.2020appln+ (1).odtSection 39 of the Maharashtra Money Lending (Regulation) Act, 2014(Hereinafter referred to as “the Act of 2014” for brevity). Applicant no.1is wife of applicant No.2. Applicant No.2 has expired on 22.09.2020.Learned counsel for the applicants has produced on record the deathcertificate dated 30.09.2020 issued by Municipal Council, Tuljapur. Thesame is taken on record and marked as “Exhibit-A”. The prosecutionagainst applicant No.2 in both the applications, therefore, standsabated. 2.Criminal Application No.94/2020 is filed in order tochallenge F.I.R. No.436/2019 dated 28.12.2019. After filing of theapplication, charge-sheet No.94/2020 dated 30.11.2020 came to befiled, pursuant to which, Regular Criminal Case No.100/2021 came tobe registered against the applicants, for the offence punishable undersection 39 of the Act of 2014, which is pending before the learnedJudicial Magistrate, First Class, Tuljapur. This FIR is lodged byrespondent No.2, Co-operative Officer, Grade-II, Tuljapur on acomplaint regarding illegal money lending made by respondent No.3 –Sahebrao Bhise.3.Likewise, Criminal Application No.102/2020 is filed in orderto challenge F.I.R. No.437/2019 dated 28.12.2019 lodged by the sameOfficer on a complaint regarding illegal money lending made byrespondent No.3 – Bhujang Mahankraj. The prosecution has filed 494.2020appln+ (1).odtcharge-sheet No.95/2020 dated 30.11.2020, pursuant to whichRegular Criminal Case No.101/2021 is registered against theapplicants, for the offence punishable under section 39 of the Act of2014, which is pending on the file of the learned Judicial Magistrate,First Class, Tuljapur.4.It will be pertinent to mention here that the applicants inthe present matters are arrayed accused in both the F.I.Rs. In bothF.I.Rs. allegations regarding money lending business being carried outby the applicants without licence are levelled. Both the F.I.Rs. refer tothe same sale transactions in order to allege that the applicants areindulging in illegal money lending business. Since the facts involved inboth the matters are identical, we are deciding both the matters bycommon judgment.5.The allegations in both the matters are that the applicants,who are husband and wife, are indulging in illegal money lendingbusiness. It is alleged that while advancing money to needy borrowers,the applicants have adopted a practice of obtaining the sale deeds withrespect to immovable properties from the borrowers which in fact areexecuted only for the purpose of creating security for repayment ofloan amount and once the loan amount is repaid, the property isreconveyed to the borrower or his/her family members. In sum andsubstance, the allegations are that the said transactions are merely a 594.2020appln+ (1).odtcamouflage to cover illegal money lending transactions. RespondentNo.3 in both the matters had initially lodged complaints regardingillegal money lending business by the applicants with Officers underthe Act of 2014. The complaints have been investigated by the Officersand accordingly, respondent No.2 was directed by his superior to lodgethe F.I.R. against the applicants. Both above F.I.Rs. have beenregistered on the complaint made by respondent No.2, who is workingas Co-operative Officer, Grade-II at Tuljapur.6.In both the complaints, the allegations are pertaining to thefollowing four sale transactions :-Sr. No.Date of sale deed infavour of theapplicantsDate of reconveyenceName of the vendor/borrower1.27.05.200911.06.2012Baliram Mahankraj2.16.05.201530.05.2016Yuvraj Patil3.12.01.200904.09.2013Bhusang Mahankraj4.11.06.201223.09.2013Baliram Mahankraj7.We have heard Mr. Ganesh J. Kore, learned counsel forthe applicants, Mr. A.M. Phule, learned APP for respondent No.1 andMr. Rohit Patwardhan h/f Mr. Satej Jadhav, learned counsel forrespondent No.3.8.We have perused the F.I.Rs., charge-sheets anddocuments filed with the charge-sheets. 694.2020appln+ (1).odt9.Learned advocate for the applicants contends that the Actof 2014 has come into force on 16.01.2014, and therefore, the saidsection will not apply to the sale transactions at Sr.Nos.1, 3 and 4above, in as much as, a penal provision cannot have retrospectiveoperation. He further contends that the Act of 2014 has repealed TheBombay Money Lenders Act, 1946, under which the offence of moneylending without licence was a non-cognizable offence, and therefore,F.I.Rs. could not have been registered against the applicants, inrelation to the aforesaid three sale deeds. As regards second saletransaction, which is dated 16.05.2015, he submits that although thesale transaction and the reconveyence are after the commencement ofAct of 2014, merely on the basis of the said solitary sale transaction, itcan not be said that the applicants are engaged in illegal moneylending business. He further submits that from 16.01.2014 i.e. the dateof commencement of Act of 2014 till 28th March, 2021 i.e. the date offiling of the charge-sheet, there is only one sale transaction. The periodbetween the commencement of Act of 2014 and filing of the charge-sheet is around 7 years. He, therefore, submits that even with respectto second sale transaction, it cannot be said that the applicants haveindulged in money lending business without licence.10.As against this, the learned APP and learned counsel forrespondent No.3 contend that the applicants have indulged in illegal