1 crap3980.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3980 OF 2010 The State of Maharashtra ...Applicant (Original Complainant) VERSUS Kanhaiyyasinh s/o Govindsinh Tehra ..Respondent (Original Accused) ..... Shri B.V.Wagh, A.P.P. for applicant/State Shri S.B.Chavan, advocate for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 30 th June, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant), seeking leave to file appeal, challenging the judgment and order of acquittal, dated 26.4.2010, passed by the learned 5 th Joint Judicial Magistrate, First Class, Nanded, in R.C.C. No. 659 of 2 crap3980.10 2005, thereby acquitting the respondent for the offence punishable under Section 32(B)(b) of the Bombay Money Lending Act, 1946. 3 The parties hereinafter referred as per their original status as, “the complainant” and “the accused”. I have perused the impugned judgment and order, dated 26.4.2010 and the Record and Proceedings with the assistance of the learned counsel for the parties. 4 In brief, the case of the prosecution is that on 1.3.2005, the informant, namely S.S.Latpate, Cooperative Officer Grade-I, Cooperative Socieity, Nanded, lodged the report against the accused at Police Station, Limbgaon, stating therein that in R.C.A. Nos. 13 of 2000 and 17 of 2000, the Additional Sessions Judge, Nanded has observed that the accused is indulging in money lending business illegally. The District Government Pleader also gave legal opinion by letter dated 7.6.2004 that it is necessary to initiate proceedings against the accused under the Bombay Money Lending Act. Accordingly, the District Deputy Registrar, Cooperative Societies, Nanded, by letter dated 15.9.2004 authorized the informant to lodge the report. Hence, the informant lodged the report against the accused under Section 32-B of the Bombay Money Lending Act, 3 crap3980.10 1946. Accordingly, P.S.O. of Limbgaon police station registered offence under C.R. No. 2 of 2005 against the accused under the afore said Section. The investigation was carried out and thereafter charge sheet was filed before the court on 4.7.2005. Accordingly, the respondent (original accused) faced the trial in Regular Criminal Case No. 659 of 2005, for the offence punishable under Section 32-B of the Bombay Money Lending Act, 1946. 5 To substantiate the case of the prosecution, the prosecution examined three witnesses, viz. PW1 Sheshabai Kishanrao Kadam; PW2 Sumanbai Vitthalrao Kadam and PW3 Manik Shivajirao Latpate-informant. 6 The defence of the accused is of total denial. 7 Accordingly, after considering the oral and documentary evidence adduced/produced by the prosecution, as well as after considering the submissions advanced by the learned counsel for the parties, the Trial Court acquitted the accused for the charge levelled against him by the impugned judgment and order, dated 26.4.2010. Hence, being aggrieved and dissatisfied by the impugned judgment and order of acquittal the applicant/State has preferred the present 4 crap3980.10 application seeking leave to file appeal challenging the same. 8 On going through the judgment of the Sessions Court, in R.C.A. Nos. 13 of 2000 and 17 of 2000, it appears that the learned Sessions Judge issued show cause notice to the accused as to why matter should not be referred to the Maharashtra Medical Council for carrying the business of money lending without licence and the matter was supposed to be referred to the Maharashtra Medical Council, as the accused appears to be the Medical Practitioner. Further the Additional District Judge has directed to forward the copy of the judgment to the Registrar of Money Lenders, Maharashtra State, Pune and not beyond that. Pertinently, the learned Sessions Judge has not at all asked the Registrar of Money Lenders to lodge crime against the accused. In fact, the learned Trial Judge observed rightly that the intention of Hon’ble Sessions Court behind sending the copy of the judgment to the Registrar of Money Lenders was that the matter should be brought to the notice of the said Registrar. Thereafter, he was supposed to make investigation in the matter and then to lodge the report with the police station. However, it appears that the said Registrar of Money Lenders instead of making personal investigation has merely sought the opinion of the District Government Pleader and the said opinion of the District Government 5 crap3980.10 Pleader (Exh.23) does not reveal any specific direction to the concerned authority and by the said opinion the District Government Pleader only asked the Registrar to take necessary action. Hence, in the said circumstances, the concerned authority was supposed to collect the information in respect of alleged carrying on business of money lending by the accused, but no such information was collected and the informant directly lodged the report as afore said after making authorization from the higher office. 9 Besides, the prosecution examined PW1 Sheshabai and PW2 Sumanbai, who stated that accused was involved in business of money lending and the property in the names of husbands of these witnesses was grabbed by the accused. In the said context, the learned Trial Court observed that considering the nature of the offence, the charges levelled against the accused cannot be proved merely on the basis of oral evidence, and documentary evidence is necessary in proving the guilt against the accused so as to prove the business of money lending without licence, and hence, in the absence of documentary evidence, there is great set back to the case of prosecution to prove the charges levelled against the accused, and apparently, there is no flaw in the said reasoning. The Trial Court further observed that it was necessary on the part of 6 crap3980.10 the informant to collect all the necessary evidence including the documentary evidence and then to lodge the report against him, but no such documentary evidence is brought on record, and hence, guilt of the accused cannot be proved only on the basis of oral testimonies of the persons, who are not even parties to the alleged transaction of money lending, and consequently, the learned Trial Court held that the prosecution has failed to prove the guilt of the accused, and apparently, there is no fault in the reasoning adopted by the learned Trial Court. 10 Pertinently, on perusal of the judgment in R.C.A. No. 13 of 2000, there appears to be observation that it is proved that the defendant advances amount and gets executed the sale deeds of the property owned by the persons who borrows amount from him, and consequently, copy of the judgment was directed to be sent to the Registrar of Money Lenders, Maharashtra State and not beyond that, and pertinently, there is no clear observation/finding that the accused was indulged in business of money lending without holding any valid licence. 11 Having the comprehensive view of the matter, learned Trial Judge came to the conclusion that the prosecution adduced 7 crap3980.10 only oral evidence and not produced any documentary evidence, and hence, the accused cannot be held guilty on the basis of mere oral evidence, and the prosecution failed to prove the charges levelled against the accused beyond reasonable doubt, and consequently, acquitted the accused and the view adopted by the learned Trial Judge, after appreciating the evidence on record, while acquitting the accused, is a possible view and same does not appear to be perverse and no fault can be found with the reasoning adopted therefor, and no interference is called for therein in the appellate jurisdiction, and as such, present application deserves to be rejected. 12 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap3980.10