1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1585 OF 2010 Pundlik S/o Baburao Patil, Age : 49 years, Occ : Teacher, R/o 31- Govind Colony, Wakli Road, Jamner, Tq. Jamner, Dist. Jalgaon ..APPLICANT - VERSUS - 1 The State of Maharashtra, Through Police Station, Raver (Copy to be served on Public Prosecutor of High Court of Judicature of Bombay Bench at Aurangabad) 2. Bhaskar S/o Bhika Patil, Age : 52 years, Occ : Agri., R/o Athwade Bajar, Desardajin, Raver, Tq. Raver, Dist. Jalgaon RESPONDENTS CORAM : A.V. NIRGUDE, J. Date : 4th October, 2010 Mr. H.I. Pathan, Advocate for applicant Mr. S.G. Nandedkar, A.P.P. for respondent no.1 Miss. Netrali Jain, advocate for respondent no.2 ORAL JUDGMENT 1. This application filed under Section 482 of the Criminal Procedure Code for quashing of the First Information Report registered against the applicant. The respondent no.2 - complainant filed the complaint against the applicant with Raver Police Station, Dist. Jalgaon, on 05.03.2010. The narration in the complaint can be stated in gist as under: The applicant is running business of money lending 2 without having valid licence, issued under the provisions of Bombay Money Lenders Act. In 2003, the respondent no.2 needed loan of Rs. 6 Lacs, so he approached the applicant. The applicant agreed to lend him Rs. 6 Lacs as loan, but obtained from him a blank 'bond paper', duly signed by the respondent no.2. The applicant asked the respondent no.2 to pay 3% interest per month on the amount lent. To this, the respondent no.2 agreed and accordingly, between 2003 to 2005 he obtained various amounts as loan(total Rs.six lac). The respondent no.2 then repaid in various installments a sum of Rs. 6 Lac till November, 2007. Despite of this repayment of loan of Rs. 6 Lac, the applicant demanded more amount towards interest which was then due. Lastly, the respondent no.2 agreed to execute a sale deed of his land, which was worth Rs.8 Lac, ostensibly being sold for Rs. 6 Lac to the applicant. The applicant agreed that on repayment of entire dues, he would return the property to the respondent no.2. The respondent no.2, on this narration, requested the Police to take action against the applicant for conducting business of money lending without having licence. In support of his case, he also gave details of similar transactions loan, which the applicant had with at least three other persons. While describing those instances, the respondent no.2 stated that in one of the transactions, the applicant had returned the mortgaged property to the lonee. 2. On receipt of this complaint, Police of Raver Police Station registered offence against the applicant punishable under Sections 420, 406 of the Indian Penal Code and under Section 32 (B) of the Bombay Money 3 Lenders Act. 3. The learned Advocate appearing for the applicant asserted that assuming the facts mentioned in the Complaint are truthful, the offences punishable under the Indian Penal Code are not made out against the applicant. So, the question is, whether the narration made, would constitute offences punishable under Section 420 and 406 of the Indian Penal Code ? In the entire narration, the respondent no.2 did not utter a single word of dishonesty or cheating. He admitted that he took loan of Rs. 6 Lac. He further admitted that he repaid the sum of Rs. 6 Lac only in 2007 thereby he admitted also that he had not paid the agreed interest on the amount of loan. In view of this, he admitted further that in 2008, he executed mortgage with conditional sale in favour of the applicant. It is not his case that thereafter he repaid the entire amount due and yet the applicant had not reconveyed his land in his favour. Although in the complaint it is not mentioned, it is admitted fact that on 6th January, 2009, the applicant sold away the land in question to two persons, by way of a registered sale deed. Immediately thereafter, the respondent- complainant filed a suit for declaration of title etc. It is thus the respondent-complainant's case that the land in question was “entrusted” to the applicant only till he would repay the interest due on the principal amount. The complainant also mentioned that in the complaint that in similar loan mortgage transaction, the applicant had re-conveyed the land to his debtor on getting recovered the amount lent. It is thus, the respondent- complainant's case that as per the oral agreement 4 between the parties, the applicant was not authorized to sell away the land in question to a third party without consent of the respondent-complainant. On the other hand, the learned Advocate appearing for the applicant tried to point out the contents of sale deed of 2008. Indeed, in this sale deed, there is no covenant of conditional sale or repayment of loan interest etc or the respondent's right to get the land back etc. The sale deed appears to be a simple one way transaction of sale. The learned Advocate appearing for the applicant contended that in view of this there is no material on record to show that there was no sale, but a mortgage and entrustment etc. At this stage, one has to see, what the respondent- complainant stated in the complaint and what has admittedly happened between the parties. Going by the case of the respondent-complainant, the offence under Section 406 of the Indian Penal Code is prima facie seen and so, registration of crime under Section 406 is not improper. 4. However, there is no case for registration of offence under Section 420 of the Indian Penal Code because there is no cheating involved in this case. 5. The next question is, whether the offence punishable under Section 32 (B) of Money Lenders Act is made out from the complaint, and, whether the Police could have taken cognizance of the offence punishable under Section 32 (B) of the Act for registration of offence. 6. From the contents of the complaint, it is clear that the offence punishable under Section 32 (B) of the Act is made out against the applicant. The question is, whether this offence is cognizable and the Police could 5 have register the offence pursuant to the complaint ? In order to answer this question, it must read provisions of Section 35-A and 35-B of the Bombay Money Lenders Act. They read as under :- "Section 35-A: Notwithstanding anything contained in the Code of Criminal Procedure, 1898, offences punishable- (a) under section 34 for contravening the provisions of section 5, and (b) under section 33, shall be cognizable. Section 36-B: No court shall take cognizance of any offence punishable under section 34 for contravening the provisions of section 18 or section 19, except with the previous sanction of the Registrar." 7. From the above two provisions, it is seen that the offence punishable under Section 34 for contravention of the provisions of Section 5 and the offence punishable under Section 33 are made cognizable and Police can register the offence against such offender. Whereas, Section 32-B makes the offence punishable under Section 34 for contravening the provisions of Section 18 or 19 cognizable only after previous sanction of the Registrar is obtained. So, the offence punishable under Section 34 of the Act for this particular contravention is not cognizable. Similar view is taken by the learned Single Judge of this Court in the case of " Ashok Laxman Gote and another V/s State of Maharashtra and another" reported in "{2008 (2) Mh.L.J. (Cri.) 673}. 8. In view of this, the application is partly allowed. The registration of offence under Section 420 of the Indian Penal Code and under Section 32-B of the 6 Money Lenders Act is set aside. The registration of offence under Section 406 of the Indian Penal Code is not disturbed. [A.V. NIRGUDE, J.] gas/cri1585.10/ok