Back
2009 (3) GCD 2432 (Guj)
Hon’ble Mr. Justice M.R. Shah
Bagmar Finance Limited & Anr.
Versus
State of Gujarat & Anr.
Criminal Misc. Application No. 8010 of 2008—Decided on 16/12/2008
Criminal Procedure Code, 1973 (Central Act 2 of 1974) — Sections 200 and 482 — Bombay Moneylenders Act — Sections 2(9), 5, 18, 19, 23, 25 and 34 — Giving of loan — Without license — Contravention of provisions alleged — Complaint — Prayer to quash and set aside — Scope of — The complaint is that the petitioners are doing business of Finance and giving loan without obtaining license as required under the Act — In the present case loan has been given to a person for purchasing Rickshaw and hire purchase agreement is written between Petitioner No. 1 Company and person who has taken the Loan — Contention that Loan given to a person for purchasing Rickshaw is a loan to trader and therefore license is not required under the Act is not acceptable — Trader means a person who in regular course of business buys and sells goods or other property — Rickshaw driver as such can not be said to be trader or contractor because he does not buys and sells goods — Giving Finance to a person to purchase Rickshaw is covered under the definition of loan attracting provisions of the Act for which license is required — Petitioner is admittedly a moneylender and he has not obtained any license as required under the Act — Petitioner have therefore committed breach of the provisions of the Act for which petitioners are to be tried — So far as non-compliance of Section 200 of the Code is concerned — It has no force because when complaint is made in writing the examination of complaint as alleged is not necessary — The contention that Petitioner No. 2 was in charge and responsible for affairs of the Company has not been averred therefore complaint is not sustainable against petitioner is also not acceptable as there are specific averments in the complaint that Petitioner No. 2 is responsible Director of the Company — In the facts and circumstances impugned complaint has been filed and same is not required to be quashed and set aside.
Held :
Person who has taken loan / finance for purchasing Rickshaw cannot be said to be ‘contractor’ at all. Such person cannot come within the definition of ‘TRADER’. ‘Trader’ means person who in the regular course of business buys and sells goods or other property, whether movable or immovable and therefore, Rickshaw driver cannot be said to be person who in the regular course of business buys and sells goods or other property, whether movable or immovable. Certainly he cannot be said to be ‘contractor’. It is the contention on behalf of the petitioners that when loan is given to person to buy Rickshaw it can be said to be ‘loan to trader’ and therefore, provisions of the Act would not be attracted and/or license is not required cannot be accepted.
Giving finance / loan to a person to purchase Rickshaw can be said to be within the definition of ‘LOAN’ attracting Section 5 and other relevant provisions of the Act for which license is required. It cannot be disputed that the Petitioner No. 1 cannot be said to be ‘moneylender’ within the definition of ‘MONEYLENDER’ under the Act. It is admitted position that Petitioner No. 1 has not obtained any license as required under the Act. Therefore, it appears that petitioners have committed breach / contravention of the provisions of the Act for which the petitioners are to be tried. [Para 10]
Now so far as the contention on behalf of the petitioners that there is non-compliance of Section 200 of the Cr.P.C. in as much as original complainant is not examined on oath is concerned, same also has no substance. It cannot be disputed that original complainant is a Government Public Servant and, therefore, considering Section 200 of the Cr.P.C., when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint. Under the circumstances, it cannot be said that requirement of Section 200 are not complied with. In the facts and circumstances of the case, it cannot be said that the learned trial Court has committed any error in taking cognizance.
So far as the contention on behalf of the petitioners that Petitioner No. 2 is concerned, impugned complaint deserves to be quashed and set aside as there is no whisper in the complaint that he was in charge and responsible for the affairs of the company at the time when alleged offence was committed is concerned, same has also no substance as there are specific averments in the complaint that Petitioner No. 2 is responsible Director of the Company. [Para 12]
Law Laid Down :
Under the provisions of Criminal Procedure Code when complainant is a Government Officer he is not required to be examined on oath.
Case Law Analysis :
Sundaram Finance Ltd. vs. State of Kerala and Anr., AIR 1966 SC 1178 [Paras 4 & 5].—Distinguished
M.R. Shah, J.—Rule. Mr. M.R. Mengdey, learned APP waives service of Rule on behalf of the respondent - State. With the consent of the learned Advocates appearing on behalf of the respective parties, this application is taken up for final hearing today.
2. By way of this petition, under Section 482 of the Criminal Procedure Code (‘Cr.P.C.’ for short), the petitioners - original accused have prayed for an appropriate Writ, direction and/or order quashing and setting aside the Criminal Case No. 302 of 2008 pending in the Court of learned Metropolitan Magistrate Court No. 20, Ahmedabad against the petitioners for the offence under Sections 5, 18, 19, 25 read with Section 34 of the Bombay Moneylenders Act, 1946 (‘the Act’ for short).
3. A criminal complaint / criminal case being 302 of 2008 is filed by the Inspector of the Moneylenders, Ahmedabad in the Court of learned Metropolitan Magistrate, Ahmedabad against the petitioners - original accused for the offences under Sections 5, 18, 19, 25 read with Section 34 of the Bombay Moneylenders Act, 1946 alleging inter-alia that the petitioners, more particularly Petitioner No. 1 has committed offence under Sections 5, 18, 19 and 25(3) of the Act and is doing business of finance without obtaining any license as required under the Act. It was further averred that petitioners are engaged in the business of disbursing loan without obtaining license as required under the provisions of the Moneylenders Act and in the said complaint the learned Metropolitan Magistrate took cognizance of the complaint and directed issuance of summons against the petitioners. Hence, present petitioners have preferred present application under Section 482 of the Cr.P.C. to quash and set aside the complaint.
4. Mr. Sanjay Gupta, learned Advocate for the petitioners has vehemently submitted that the petitioners have not committed any offence as alleged under Sections 5, 18, 19 and 25 of the Act. It is submitted that Respondent No. 2 - original complainant has unilaterally assumed jurisdiction under the Act by holding that the provisions of the Act are applicable to the Petitioner No. 1-Company and has wrongly recorded the finding that hire-purchase agreement is in fact a loan transaction, therefore, it was obligatory on the part of Petitioner No. 1-Company to obtain necessary license from the concerned authority under the Act and since Petitioner No. 1 has failed and neglected to keep accounts and furnish accounts in the prescribed form, it has violated the provisions of Sections 5, 18 and 19 of the Act. It is submitted that in the present case, loan was advanced to a trader doing transport business and it cannot be termed as a loan as per the definition of ‘loan’ under Section 2(9) of the Act. It is further submitted that so far as the allegations in the complaint that Petitioner No. 1-Company is charging interest exceeding 18% and therefore, has acted in contravention of the provisions of the Act, by holding that Petitioner No. 1-Company is a ‘moneylenders’ is concerned, in a given case, if it is found that the loan was given to a trader, in civil proceedings, the Court while passing the decree can limit the interest under Section 23 of the Act. It is further submitted that as per Section 25 of the Act, the State can issue notification limiting the rate of interest. It is submitted that loan to ‘trader’ is not covered under the Act. It is submitted that in the present case, concerned hirer / trader took financial assistance from Petitioner No. 1-Company for the purpose of transport business and there was agreement entered into between the parties for payment of installments and rate of interest is also specified. Said document is duly signed and executed by the hirer and when he has agreed for paying interest at a particular rate and when all throughout he has paid such monthly installments, it cannot be said that any offence is made out more particularly when such advancement of money cannot be said to be ‘
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
