The prosecution must establish the continuous and systematic exercise of money lending activity with a profit motive, and proper reasons for condoning the delay in instituting a case after the lapse of the period of limitation.

JUDGMENT :

S.K. Sahoo, J.

The petitioner Suryanarayan Behera faced prosecution under section 19 of the Orissa Money Lenders’ Act, 1939 (hereinafter the ‘1939 Act’) in the Court of learned Sub-Divisional Magistrate, Dharamgarh in O.M.L. Case No.1 of 1991 on the ground that he was carrying on business as a money lender without being registered as such.

The learned Sub-Divisional Magistrate, Dharamgarh vide order dated 18.12.1993 convicted the petitioner under section 19 of the 1939 Act and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs.1,000/- (Rupees one thousand), in default of payment of fine, to undergo further simple imprisonment for one month.

The petitioner preferred an appeal before the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in Criminal Appeal No.02 of 1994. Learned Appellate Court vide impugned judgment and order dated 20.02.2001 dismissed the appeal and confirmed the impugned order dated 18.12.1993 passed by the learned Trial Court.

2. It appears that on the basis of requisition received from the Block Development Officer, Jaipatna dated 21.11.1990, the learned Sub-Divisional Magistrate, Dharamgarh registered the case under section 19 of the 1939 Act on 25.12.1991 and took cognizance of the offence under section 19 of the said Act on 11.03.1992.

It is the prosecution case that the petitioner was a money-lender and four persons of village Podaguda pledged gold ornaments with the petitioner and in exchange of the same, the petitioner gave them paddy. It is the further case of the prosecution that even though the loanees returned back twice the quantity of paddy which they had taken from the petitioner but the petitioner did not give back the gold ornaments to the loanees and every time the petitioner used to take time for returning gold ornaments within a month or two.

3. The defence plea of the petitioner is that he was not doing any money lending business nor he has received any gold from any person and he was not even registered as a money lender and that a false case has been foisted against him.

4. From the side of the prosecution, three witnesses were examined.

P.W.1 is Ganesh Majhi who is one of the complainant in the case. P.W.2 is a Duryodhan Gouda is a labourer and P.W.3 Bhabani Sankar Pujahari was also a complainant.

From the side of the petitioner, two witnesses were examined as defence witnesses. D.W.1 Debananda Banua and D.W.2 Rameswar Bisi Majhi stated that the petitioner was not doing any money lending business.

5. The learned Sub-Divisional Magistrate, Dharamgarh formulated four points for determination, which are as follows:-

(i) Whether the petitioner had advanced a loan to the debtors against which he kept the complainants’ gold as mortgage?

(ii) Whether he was registered as money lender under the 1939 Act?

(iii) Whether he has charged exorbitant rate of interest?

(iv) Whether he has violated section 19 of the 1939 Act?

6. After considering the evidence on record, the learned Magistrate answered as follows:-

(i) It is well proved that the petitioner has advanced loan because a written acknowledgement has been given and the testimony of the prosecution witness well proves it.

(ii) He is not a registered money-lender as he is not able to produce the licence granted by the authority competent.

(iii) He has also charged exorbitant rate of interest as seen from the interest calculation sheet allegedly in the hand of the petitioner.

(iv) The last and the most vital point is that the petitioner has not returned the pledged ornaments. The pledge of the gold is well proved, but the onus lies on the petitioner to prove that he has returned the gold but the petitioner could not prove it.

The petitioner preferred an appeal before the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna and the learned Appellate Court upheld the findings of the learned Trial Court and held that the petitioner has been rightly found guilty under section 19 of the 1939 Act.

7. Mr. Birendra Kumar Nay