9911796707
TMI Blog2008 (12) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... for the offences under Sections 5, 18, 19, 25 read with Section 34 of the Bombay Money -lenders Act, 1946 alleging inter alia that the petitioners, more particularly petitioner No. 1 has committed offence under Sections 5, 18, 19 and 25(3) of the Act and is doing business of finance without obtaining any licence as required under the Act. It was further averred that petitioners are engaged in the business of disbursing loan without obtaining licence as required under the provisions of the Money -lenders Act and in the said complaint the learned Metropolitan Magistrate took cognizance of the complaint and directed issuance of summons against the petitioners. Hence, present petitioners have preferred present application under Section 482 of the Cr.P.C. to quash and set aside the complaint. ( 3. ) Mr . Sanjay Gupta, learned Advocate for the petitioners has vehemently submitted that the petitioners have not committed any offence as alleged under Sections 5, 18, 19 and 25 of the Act. It is submitted that respondent No. 2 -original complainant has unilaterally assumed jurisdiction under the Act by holding that the provisions of the Act are applicable to the petitioner No. 1 -Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per in the complaint that he was in charge of and responsible for the affairs of the Company at the time when alleged offence is committed. Sum and substance of submission made on behalf of the petitioners is that (i) financial assistance/loan to person for purchase of vehicle in the present case for purchase of Rickshaw can be said to be loan to 'trader', and therefore, considering Section 2(18) of the Act same cannot be said to be 'loan' so as to attract provisions of the Act (ii) that hire -purchase agreement cannot be equated with loan agreement (iii) there is no verification on oath of the complainant as required under Section 200 of the Cr.P.C. Mr. Gupta, learned Advocate for the petitioners has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Sundaram Finance Ltd. v. State of Kerala and Anr. reported in : AIR 1966 SC 1178 and decision of the learned single Judge of this Court dated 20 -2 -2006 rendered Misc. Criminal Application No. 255 of 2001 (Sundaram Finance Ltd. v. State of Gujarat) in support of his above submissions. Relying upon aforesaid decisions and making above submissions, it is requested to quash and set aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in -charge of the Company at the relevant time, it is submitted that there are specific averments in the complaint that petitioner No. 2 was in fact responsible and in -charge of the affairs of the Company. It is submitted that those averments are sufficient at this stage and further things are required to be considered at the time of trial on leading proper evidence. Therefore, it is requested to dismiss the present applications. ( 5. ) Heard the learned Advocates appearing on behalf of the respective parties. ( 6. ) At the outset, it is required to be noted that allegations against the petitioners are for contravention of Sections 5, 18, 19 and 25(3) of the Act. It is alleged in the complaint that the petitioners are doing business of finance and/or giving loan without obtaining licence as required under the provisions of the Act. In the present case, loan/finance has been given to a person for purchasing rickshaw and hire -purchase agreement has been entered into between petitioner No. 1 -Company and person who has taken loan/finance. Relevant provisions of the Act which are relevant are as under: Section 5 - Money -lender not to carry on business of money -lending ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der shall on or before the aforesaid date deliver or cause to be delivered [a statement containing the particulars specified in Clauses (i) to (iv)] to the Assistant Registrar. (2) In respect of any particular loan, whether advanced before or after the date on which this Act comes into force, the money -lender shall, on demand in writing being made by the debtor at any time during the period when the loan or any part thereof has not been repaid, and on payment of the prescribed fee supply to the debtor, or if the debtor so requires to any person specified in that behalf in the demand, a statement, in any recognized language, signed by the money -lender or his agent, and containing the relevant particulars specified in Sub -section (1). (3) A money -lender shall, on a demand in writing by the debtor and tender of the prescribed sum of expenses, supply a copy of any document relating to a loan made by him or any security thereof to the debtor, or if the debtor so requires to any person specified in that behalf in the demand. (4) For the purposes of this Section 'year' means year for which the accounts of the money -lender are ordinarily maintained in his own books. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (i) a loan to a trader; (ii) a loan to a money -lender who holds, a valid licence; or (iii) a loan, by a landlord to his tenant for financing of crops or seasonal finance, of not more than ₹ 50 per acre of land held by the tenant; (iv) a loan advanced to an agricultural labourer by his employer;] Section 2(10) defines money -lender which is as under: (10) 'money -lender' means (i) an individual, or (ii) an undivided Hindu family or (iii) a company, or (iv) an unincorporated body of individuals, who or which - (a) carries on the business of money -lending in the [State] or (b) has his or its principal place of such [business in the State and includes a pawn broker but does not include - (i) Government, (ii) a local authority (iii) a Bank (iv) the Agricultural Refinance Corporation constituted under the Agricultural Refinance Corporation Act, 1963 or (v) any other Banking financial or any institution which the State Government may, by notification in the Official Gazette, specify in this behalf]. Section 2(18) defines trader which is as under: (18) 'trader' means a person who in the regular course of business buys and sells goods or other property, whet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;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 buys and sells goods or other property, whether movable or immovable. Certainly, he cannot be said to be 'contractor'. It is the contention on behalf of the petitioners that when loan is given to person to buy Rickshaw it can be said to be 'loan to trader', and therefore, provisions of the Act would not be attracted and/or licence is not required cannot be accepted. Giving finance/loan to a person to purchase Rickshaw can be said to be within the definition of 'LOAN' attracting Section 5 and other relevant provisions of the Act for which licence is required. It cannot be disputed that the petitioner No. 1 cannot be said to be 'moneylender' within the definition of 'MONEYLENDER' under the Act. It is admitted position that petitioner No. 1 has not obtained any licence as required under the Act. Therefore, it appears that petitioners have committed breach/contravention of the provisions of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 1 is responsible Director of the Company. ( 9. ) Now , so far as the contention on behalf of the petitioners that 'hire -purchase agreement' cannot be equated with 'loan agreement' is concerned, same has also no substance. As held by the Hon'ble Supreme Court in the case of Sundaram Finance Ltd. (supra), 'hire purchase agreement' can be said to be 'loan agreement'. It is not in dispute that agreement entered into between petitioner No. 1 -Company and the person who has taken loan/finance is for recovery of loan amount with interest, but in instalments. Therefore, it can be said that same is to advance loan with interest and attracting provisions of the Act. Now, so far as the contention on behalf of the petitioners that condition under Section 35 of the Act has not been complied with has also no substance. In Para 14 of the complaint there are specific averments which are required under Section 35 of the Act. ( 10. ) In v ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
