Siddheshwar v. Subhash & Ors.

Mr.S.S.Halkude, advocate for the petitioner. Mrs.A.V.Gondhalekar, A.P.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 31.08.2009. PER COURT

Heard. The petitioner is original complainant, who filed a complaint against the Respondent Nos. 1 and 2 for offence punishable U/s 32(3) of the Bombay Money Lenders Act, 1946. The gravamen of 2 the charge is that the petitioner is that the petitioner obtained loan of Rs.35,000/- (Rupees thirty five thousand) on interest from the Respondent. He was coaxed to execute a registered sale deed in respect of his agricultural land Gat No.858 by way of collateral security to secure the loan. The Respondents are dealing in money lending without having any license. He asserted that though he made certain payments, the Respondent Nos.1 and 2 did not issue receipts. The learned Judicial Magistrate rejected request for discharge of the Respondent Nos.1 and 2 on their application (Exh.26) which was filed on the ground that the provisions of the Bombay Money Lenders Act, are not attracted in respect of the transaction pertaining to an immovable property. The Respondent Nos.1 and 2 preferred Criminal Revision Application No. 125/2008 which came to be allowed. The learned Sessions Judge held that the cognizance could not have been taken without prior sanction as envisaged under sub-clause (2) of Section 155 of the Cr.P.C. because the offence is of non- cognizable nature. The learned Sessions Judge 3 also held that the provisions of Bombay Money Lenders Act, are not attracted to the fact situation in view of case laws in a reported case of "Ramesh Daulatrao Gawhale Vs. State of Maharashtra "2007 (1) Bombay CR 751.

The learned Single Judge of this Court (Nagpur Bench), held that Section 13-B of the Bombay Money Lenders Act, would cover the transaction only in respect of movable property. It has been held that the expression " the possession of property placed by a debtor" relates to movable properties. The legal interpretation of Section 13-B may be kept aside for a while. Still, however, the legal embargo U/s 155(2) of the Cr.P.C. is applicable. The offence alleged against the Respondent Nos.1 and 2 is of non-cognizable nature. It is well settled that the Police can not investigate into non-cognizable offence without leave of the Magistrate. Mr.Halkude, would submit that it can be treated as a private complaint case. I do not agree. It appears that the charge-sheet is filed by the State and the petitioner is the informant 4 who set the Criminal Law in motion. The State has not challenged the order of the learned Sessions Judge. Considering these aspects, the petition is not maintainable at the behest of the present petitioner. Moreover, the impugned order does not suffer from arbitrariness. The petition is, therefore, dismissed. (V.R.KINGAONKAR,J.) asp/office/Crwp75809