9911796707
TMI Blog2016 (12) TMI 1565X X X X Extracts X X X X X X X X Extracts X X X X ..... issued process vide order dated 20/2/2008. 2.1 According to the version as narrated in the complaint, after serving notice under Section 13(A) of the Bombay Money Lenders Act, 1946 (hereinafter referred to as "The Act"), the Inspector inspected the Books of Accounts, Loan Accounts and other documents of the accused Company. On such inspection, it was found that the Company has been registered as a "Company" under the Companies Act of 1956. The Registered Office is at Mumbai and a branch thereof is in Ahmedabad. The Company, according to the complaint advances loan for purchase of Vehicles. 2.2 If the averments in the complaint are perused, it is the case in the complaint that the Company had applied for a license on 4/7/2007 under the Bombay Money Lenders Act, 1946. However, thereafter on 27/08/2007, the applicant withdrew the application and therefore no fresh license was issued to the Company. The complaint thereafter explains in detail the procedure that the Company undertakes to advance loans to its customers who are prospective vehicle owners. Dealers from whom the customer is to purchase a vehicle are paid a part of the consideration of the price of the vehicle know as Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court annexed as ANNEXURE B to the petition. In the submission of Shri Shah, the case on hand is identical to the one which this Court decided in Criminal Miscellaneous Application No. 255 of 2001 in the case of Sundaram Finance (SFL) And Others vs State Of Gujarat, where the Court held that when the loans are advanced by a Company incorporated under the Companies Act, 1956 for purchase of vehicles for business purposes and the beneficiary of such a loan is purchasing such vehicles for transport business, the beneficiary of loan being a trader, the transaction cannot be termed as a loan as defined under Section 2(9) of the Act. In the submission of Shri Shah, the applicant is also advancing loans for such vehicles and therefore the decision would apply in the facts of the case and therefore the complaint ought to be quashed as the provisions of the Bombay Money Lenders Act,1946 are not attracted. 3.2 Reliance is also placed on the decision of this Court in the case of Shriram Transport Finance Company Ltd vs. State of Gujarat and Others rendered in Criminal Misc. Application No. 15243 of 2008 to contend that the Applicant is a Non- Banking Financial Company (NBFC) and therefore i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 95 rendered by the Division Bench in Special Civil Application No. 6223 of 2011 dated 6/09/2012 which has been heavily relied upon by Shri Rushabh Shah would not apply. 4.2 In the submission of Shri Oza, therefore, the application should be dismissed as it is not a case which deserves interference under the exercise of powers under Section 482 of the Code of Criminal Procedure,1973 and the machinery under the penal provisions of the Act must be permitted to act in due course without being intercepted at the threshold. 5. It is light of these submissions that the case on hand needs to be examined. Averments made in the complaint examined in light of the factual instances of loans cited therein show that, one Udayraj Ramdeo Kori, a Rickshaw Driver has obtained a loan of Rs. 85,000 for a CNG Auto Rickshaw. 30 monthly installments of Rs. 3896/- have been shown as EMIs totalling to an amount of Rs. 1,16,880/-. The Auto Rickshaw is a source of his personal avocation of occupation. Similarly one Sanjay Navinbhai Mudaliar had obtained a loan for an Auto Rickshaw for self-employment. Mafatlal Pratapji is another beneficiary of the loan who has purchased a Hero Honda Passion Motorcycle for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioners that loan has been given to person for purchasing Rickshaw therefore, same is given to "TRADER'. It is further submitted by Mr. Gupta, learned Advocate appearing for the petitioners that looking to the definition of 'LOAN' and 'TRADER' it cannot be said that while giving finance/loan to person for purchasing Rickshaw provisions of Moneylender Act are attracted and therefore, license is not required. Mr. Gupta, learned Advocate for the petitioners has relied upon definition of 'TRADER' by submitting that person who has taken loan / finance for purchasing Rickshaw can be said to be contractor. Therefore, petitioners are not required to obtain any license as required under the Act. Aforesaid submission is required to be rejected outright. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is noncompliance 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
