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TMI Blog2006 (2) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhogilal Mehta, which is registered as Criminal Case No.1381/2000 against applicant No.1 company as well as against its directors and branch manager respectively. Aforesaid complaint is filed by respondent No.2 herein on the allegations that by mortgaging trucks and others vehicles, which are purchased for business purpose, complainant had taken a loan from the accused company and that the accused company is doing business of money lending, by disbursing loan for business purposes. It is alleged in the complaint that against loan of ₹ 4,70,000/the accused has recovered ₹ 7,30,895/by charging penal interest which according to the complainant is on higher side and according to the complainant the accusedcompany had taken ₹ 2,84,160/in excess. It further alleged in the complaint that in spite of aforesaid position, the accused have filed civil suit in the civil Court for recovering the amount. It is alleged in the complaint that accused have violated provisions of Section 5 of the Bombay Money Lenders Act, 1946. It is also the say of the complainant that the accused is doing business of money lending without obtaining license from the competent authority as require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocess issued by learned Magistrate for violation of provisions of Money Lenders Act. Being aggrieved by aforesaid orders of learned Magistrate in issuing process for violation of provisions of Bombay Money Lenders Act, the applicants have filed these three applications with a prayer that all the three complaints and process issued thereon may be quashed. As stated earlier, since the point involved in all these applications are similar and the applicants are same and since similar type of allegations are made in each complaint, all these matters are taken up together for final hearing. Mr.B.R.Gupta, learned advocate for the original accused applicants in each of these applications, submitted that applicant No.1 is a financial company and after disbursing loan and after getting the hire purchase agreement executed, the company has acted as per the terms of the agreement. It is submitted by Mr.Gupta that the complainant is disbursing loan and is acting as per the guidelines issued by Reserve Bank of India from time to time. It is submitted by Mr.Gupta that there is already a hire purchase agreement executed by the parties and, therefore, there is no question of violation of prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is taken for transport business. There is a document of hire purchase between the parties. At page 93 of Criminal Misc. Application No.255/2001, table of payment of loan is given and as per the same monthly instalment was fixed at ₹ 16,375. Loan was obtained on 2621996 and the last instalment was to be paid on 2611999. It seems that the complainant also paid monthly instalments for some time, however, subsequently there was a default on the part of the complainant in paying instalments and, ultimately, the applicant company exercised its powers by seizing trucks, as per the agreement, and the complaint is filed in the year 2000. In such complaint process was issued on 2nd December, 2000. Mr.Gupta has relied upon the decision of the Supreme Court in Charanjit Singh Chadha and others v. Sudhir Mehra reported in (2001) 7 SC 417, wherein while interpreting the hire purchase contract between the parties, it has been held by the Apex Court that if possession of a vehicle/goods is recovered by the financial officer, as per the terms of hire purchase agreement, it does not amount to a criminal offence. It has also been held by the Supreme Court that Section 378 is not appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial company. Such loan was utilized for transport business. There was an agreement entered into between the parties for payment of instalment. Rate of interest is also specified. For considerable time, the complainant continued to pay the instalments and ultimately for breach of the same the applicant company took appropriate proceedings and acted as per the terms of contract and subsequently, the complaint is filed in the year 2000. So far definition clause of Loan in Bombay Money Lenders Act, 1946 is concerned, term loan is defined in Section 2, Subclause 9 which provides as under : Loan means an advance at interest * * * * * whereof money or in kind, but does not include ( a) a deposit of money or other property in a Government Post Office Bank or in any other bank or in a company or with a cooperative society ; (b) a loan to, or by, or a deposit with any society or association registered under the Societies Registration Act, 1860, (XXI of 1860) or any other enactment relating to a public, religious or charitable object; (c) a loan advanced by Government or by any local authority authorised by Government ; *[(cc) a loan advanced to a Government servant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blanks are left to be filled after execution. (2) whoever contravenes the provisions of subsection (1) shall, on conviction be punishable with fine which may extend to ₹ 1,000 or with imprisonment of either description which may extend to six months or with both. Section 33 (1) of the Act reads as under : 33. Penalty for molestation (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 ₹ 500 or with both. Section 34 of the Money Lenders Act deal with penalties. Considering the facts of the case referred to above, which are as such not in dispute, it cannot be said that any of the aforesaid provisions are attracted in this case. Even otherwise, loan to the complainant can never be said to be loan as per the Bombay Money Lenders Act and here the Court is not concerned with the provisions of Section 23 and 25 of the Act as it cannot be said to be applicable so far as criminal case is concerned. Even as per Section 35, a person responsible for the management o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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