Hari S/O Shankar Patil vs The State Of Maharashtra

::: Downloaded on - 09/06/2013 19:43:46 ::: 2

6) The District Collector, Nandurbar.

7) The Superintendent of Police,

Nandurbar.

8) The District Deputy Registrar, Cooperative Societies, Nandurbar.

9) The Tahsildar, Nandurbar, District Nandurbar. - RESPONDENTS

WITH

CRIMINAL APPLICATION NO.1151/2007

1)

Hari s/o Shankar Patil, Age: 60 Yrs., occu. Agril. And Pensioner, Residing at

`Pushpakamal', Dongargaon Road, Shahada, Tq. Shahada, District Nandurbar.

2) Sakharam s/o Shankar Patil,

Age: 50 Yrs., occu. Service, Residing at Kaliawadi,

Tq. Navsari, Dist.Surat (Gujrat). - APPLICANTS

VERSUS

1) The State of Maharashtra. Through the Secretary to the Government, Cooperation Department, Mantralaya, Mumbai.

2) The Joint Registrar, Cooperative Societies, Nasik Division, Nasik.

3) The Assistant Registrar Cooperative Societies, Nandurbar.

4) The Police Station officer,

::: Downloaded on - 09/06/2013 19:43:46 ::: 3

Taluka Police Station, Nandurbar.

5) Shri Vijay s/o Onkar Patil

Age: 50 Yrs., occu. Agril. R/o village Boarale, Tq. And Dist.Nandurbar.

(Resp.No.5 abated as per

Court's order dt. 3.9.2012)

6) The District Collector, Nandurbar.

7) The Superintendent of Police, Nandurbar.

8)

The District Deputy Registrar, Cooperative Societies, Nandurbar.

9) The Tahsildar, Nandurbar, District Nandurbar. - RESPONDENTS

WITH

CRIMINAL APPLICATION NO.1152/2007

1) Hari s/o Shankar Patil, Age: 60 Yrs., occu. Agril. And Pensioner, Residing at

`Pushpakamal', Dongargaon Road, Shahada, Tq. Shahada, District Nandurbar. - APPLICANT

VERSUS

1) The State of Maharashtra. Through the Secretary to the Government, Cooperation Department, Mantralaya, Mumbai.

2) The Joint Registrar, Cooperative Societies, Nasik Division, Nasik.

::: Downloaded on - 09/06/2013 19:43:46 ::: 4

3) The Assistant Registrar Cooperative Societies,

Nandurbar.

4) The Police Station officer, Taluka Police Station, Nandurbar.

5) Shri Vijay s/o Onkar Patil

Age: 50 Yrs., occu. Agril. R/o village Boarale, Tq. And Dist.Nandurbar.

6) The District Collector, Nandurbar.

7)

The Superintendent of Police, Nandurbar.

8) The District Deputy Registrar, Cooperative Societies, Nandurbar.

9) The Tahsildar, Nandurbar,

District Nandurbar. - RESPONDENTS

***** Mr.Hemant Surve, Advocate for Applicants; Mr.VG Shelke, APP for Resp.Nos.1 to 4 & 6 to 9;

Mr.SV Gundre, Adv. h/for Mr. VD Gunale, Adv. For Respondent No.5. ----- CORAM : K.U.CHANDIWAL,J.

DATE OF RESERVING THE JUDGMENT : 22 nd

FEBRUARY,2013.

DATE OF PRONOUNCING THE JUDGMENT: 8 th MARCH,2013.

JUDGMENT:

1) Heard extensively. Rule was issued on 20th June, 2007. By these applications, the applicants have questioned lodging of F.I.R. vide

::: Downloaded on - 09/06/2013 19:43:46 ::: 5

Cr.Nos.35/2006; 36/2006; and 34/2006, all dated

28.12.2006 before Taluka police station, Nandurbar. Shri Ratan Sajan Patil had executed

sale-deed dated 17.6.2004 in favour of the applicant. Pursuant thereto, mutation entries were effected being entry Nos.475, 476, 477 and

479. The respondent No.5 belatedly moved the Respondent No.3, making allegation that the applicant has indulged in money-lending and that

the sale-deed, executed by his grand-father, was,

in fact, mortgage and not an outright sale. The purpose of sale-deed was, the same would be a

conveyance in favour of grand-father of Respondent no.5.

2) Respondent No.3 issued a show cause notice to the applicant, asking to reply as to

why action under the provisions of The Bombay Money-Lenders Act, 1946 (for short, the Act),

should not be initiated. The applicant has denied of any transaction in the form of and nature alleged by Respondent no.5. Respondent no.3, after reply, did not hold any inquiry with

the applicant. However, surruptiously, inquiry report dated 11.10.2006 of Respondent no.3 was forwarded to the applicant with another show- cause notice dated 13.10.2006. It was a composite inquiry conducted in all the three complaint applications. Thereafter, Respondent

::: Downloaded on - 09/06/2013 19:43:46 ::: 6

no.3 conveyed of framing a charge against the

applicant under the said Act and he held that the applicant has indulged in unauthorized money-

lending activities. This view of Respondent no.3 was questioned before the learned Divisional Joint Registrar, Co-operative Societies, Nasik.

It was informed that there was no enquiry carried by Respondent no.3. The Respondent no.3, in spite of pending such representation before Respondent

no.2, did not wait for its result and ultimately

lodged F.I.R. on 28.12.2006 with police, alleged the offences under Sections 32B and 33(1) of the

said Act. The conduct of Respondent no.3 was considered by Respondent no.2 and intervened in the matter directed Departmental Enquiry against

Respondent no.3 for such personal indulges. However, no fruitful event was the outcome. The

opinion of additional Public Prosecutor of Nandurbar dated 10.11.2006 though illustrated of

filing a complaint against the applicant, however, by letter dated 16.12.2006, opinion was withdrawn as the matter was subjudice.

3) Learned Counsel rightly said, there was no authority vested in Respondent no.3 to cancel the registered document of conveyance. It was not within the province of provisions of the said Act and it was alleged to be an excessive exercise of powers by Respondent no.3

::: Downloaded on - 09/06/2013 19:43:46 ::: 7

4) Section 13A of the said Act deals as

under:

"[13A Power of authorized officer

to require production of records or document, -

For the purpose of verifying whether the business of money-lending is

carried on in accordance with the provisions of this Act any Registrar, Assistant Registrar or any other officer authorized by the [State] Government in this behalf

may require any money-lender [or any person in respect of whom the

Registrar, Assistant Registrar or the officer so authorized has reason to believe that he is carrying on

the business of money-lending in the State] to produce any record or document in his possession which in his opinion is relevant for the purpose and thereupon such

moneylender [or person] shall produce such record or document. The

Registrar, Assistant Registrar or officer, so authorized may after reasonable notice at any reasonable time enter and search without

warrant any premises] where he believes such record or documents to be [and inspect such record or document] and may ask any question necessary for interpreting or

verifying such record.]"

. Section 13B(1) reads thus:

"13B(1) If upon the inspection of records and documents made under section 13A, the inspecting officer is satisfied that the money-lender is in possession of property pledged

::: Downloaded on - 09/06/2013 19:43:46 ::: 8

to him by a debtor as security for the loan advanced by the money-

lender in the course of his business of money-lending without a valid

license, the inspecting officer shall required the money-lender to deliver forthwith the possession of such property to him."

5) The powers under the said Act is purely an administrative character and for the purposes of verification. It does not provide for any

adjudication. Section 13B of the said Act comes

into operation after exercise of powers under Section 13A and hence even under Section 13B, no

adjudication is permissible. The jurisdiction to Respondent no.3 is with a limited scope.

6) The words "document" used in Section 13A or "pledge" used in section 13B of the said Act,

has strictly a distinct meaning. It will not be embracing a situation of mortgage of immovable

property. Section 2(10A) of the said Act also inform legislative intent in respect of the term "pledge" as it reads "pawn-broker" means a money- lender who, in ordinary course of his business,

advances a loan and takes goods in pawn as security for payment of such loan."

7) Section 18 of the said Act uses words, "mortgage", "pledge" wherever it was required. The word "assignment" used therein clearly

::: Downloaded on - 09/06/2013 19:43:46 ::: 9

envisages transfer of property. Assignment

means, "transfer of claim, right or property to another". Section 43 prohibits transfer of

property.

8) Thus the order or action of FIR by

Respondent no.3 for taking over properties of the applicants by effect of Section 13A or 13B of the said act, is certainly beyond the scope of powers

as these sections strictly deal with movable

properties. The redressal in respect of immovable property has to be necessarily in civil

court.

. Section 10 of the Act speaks as under:

"10(1) No court shall pass a decree in favour of a money-lender in any

suit to which this Act applies including such suit pending in the

court before the commencement of the Bombay Money-Lenders (Amendment) Act 1975, unless the court is satisfied that at the time

when the loan or any part thereof, to which the suit relates was advanced, the money-lender held a valid license, and if the Court is satisfied that the money-lender did

not hold a valid licence, it shall dismiss the suit.

(5) Nothing in this section shall affect -

(a) suits in respect of loans advanced by a money-lender before the date on which this Act comes into force;

(b) the powers of a Court of Wards or an Official Assignee, a

::: Downloaded on - 09/06/2013 19:43:46 ::: 10

receiver, an administrator or a court under the provisions of the

Presidency-towns Insolvency Act, 1909, or the Provincial Insolvency

Act, 1920 or any other law in force corresponding to that Act, or of a liquidator under the Companies Act, 1956, to realise the property of a

money-lender."

9) Section 29 of the said Act, provides thus:

"29.Notwithstanding anything contained in any law for the time

being in force, the Court shall, in any suit to which this Act applies, whether heard ex parte or otherwise

--

(a) reopen any transaction, or any account already taken between the parties;

(b) take an account between the parties :

(c) reduce the amount charged to the debtor in respect of any excessive interest;

(d) If on taking accounts it is

found that the money-lender has received more than what is due to him pass a decree in favour of the debtor in respect of such amount:

Provided that in the exercise of these powers, the Court shall not -

(i) reopen any adjustment or agreement purporting to close previous dealings and to crate new obligations, which have been entered into by the parties or any person through whom they claim at a date more than six years from the date of the suit;

(ii) do anything which affects any

::: Downloaded on - 09/06/2013 19:43:46 ::: 11

decree of a Court.

Explanation - For the purpose of

this section "excessive interest"

means interest at a rate which

contravenes any of the provisions of section 25."

10) Thus, Section 10 requires a Court not to

decree a suit of money-lending and to dismiss it, if he has no valid license. Section 29 permits the Court to open closed transaction. Thus, the

money-lending Act has not taken away proceedings

before civil court.

11) The F.I.R. display that inquiry was caused under Section 13A of the Act and thereafter, the F.I.R. is lodged under Section

32B and 33(1) of the said Act.

12) Sections 32B and 33(1) of the Act, read as under :

"32B Whoever, -

(a) obtains a licence in the name which is not his true name or carries on the business of money-lending under the licence so obtained, or

(b) carries on the business of

money-lending at any place without holding a valid licence authorising him to carry on such business at such place, or

(c) enters into any agreement in the course of business of money-lending without a valid licence, or under a licence obtained in the name which is not his true name, shall, on

::: Downloaded on - 09/06/2013 19:43:46 ::: 12

conviction, be punished, -

(i) for the first offence, with

imprisonment of either description which may extend to one year or with

fine which may extend to rupees one thousand and five hundred or with both, and

(ii) for the second or subsequent

offence, in addition to, or in lieu of, the penalty specified in clause

(i), with imprisonment which shall not be less than two years, where such person is not a company, and

with fine which shall not be less than rupees five thousand, where such

person is a company."

"33(1) Whoever molests, or abets the

molestation of, a debtor for the recovery of a debt due by him to a creditor shall, on conviction, be punishable with imprisonment of either description which may extend

to three months or with fine which may extend to Rs.500 or with both."

13) No case of infraction of Sections 32B or Section 33(1) of the said Act, is accelerated as

there is no molestation of any so-called debtor for recovery of debt by the accused/applicants. There was no agreement in the course of business of money-lending without a valid licence. The

registered document of sale-deed could not be stared wishfully to the detriment of the bonafide purchaser.

14) It is also clear, Respondent no.3 is not an authority constituted as an alternate forum to

::: Downloaded on - 09/06/2013 19:43:46 ::: 13

decide the question about title of immovable

properties. Respondent no.3 could not, with all said and done, cause an ex parte inquiry, making

a show of inquiry and holding the applicants guilty. Respondent no.3 could not throw away the applicant in respect of powers and rights vested

in him by virtue of the registered sale-deeds. This legal position is crystallized in Writ petition No.599/2006 and Ors. (group matters)

decided by this Court(Nagpur Bench) on 13th

October, 2006. The First Information Reports, in question, therefore, call for interference. The

Criminal Applications are allowed as above. Rule made absolute in aforesaid terms with costs.

sd/-

(K.U.CHANDIWAL) JUDGE

bdv/ fldr 7.3.2013

::: Downloaded on - 09/06/2013 19:43:46 :::