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Judgment
(PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned Counsel for both the parties.
This is an application filed under Section 482 of the Criminal Procedure Code for quashing the First Information Report dated 16.01.2020, in Crime No. 0019/2021, registered with the non-applicant No.1, Police Station Nandura, District Bhandara, for the offence punishable under Section 39 of the Maharashtra Money Lending (Regulation) Act, 2014(hereinafter referred to as “the Act of 2014”). The applicants further pray for quashing of the charge-sheet dated 02.08.2021, filed by the non-applicant No.1, in the said crime as also Regular Criminal Case No. 361/2021, pending on the file of learned Judicial Magistrate First Class, Nandura.
As per the contents of the First Information Report lodged by the non-applicant No. 2, with the non-applicant No.1, the applicants herein are engaged in the business of money lending without having a valid license therefor. According to him, he therefore made an application as contemplated under Section 16 before the District Deputy Registrar, Buldhana. In pursuance to the said application and after hearing the parties, the District Deputy Registrar, submitted a report on 02.01.2020. Pursuant to this report, the First Information Report in question was lodged. It is this First Information Report and the consequent charge-sheet, which is challenged in the present application.
We have heard Shri Anil Mardikar, learned Senior Counsel, along with Shri Dipak Patil, learned Counsel for the applicants, and Ms S.Z. Haidar, learned Counsel for the non-applicant No.1/State.
Learned Senior Counsel for the applicants submits that even if the allegation in the First Information Report is taken on their face value, no offence, much less as punishable under the Act of 2014, can be made out, and more particularly Section 39 thereof. While taking us through the complaint made by the non-applicant No.2 before the authority, he submits that there is only a sole transaction and that is also dated 23.04.2004. It is therefore his submission that, admittedly, the transaction in question is before coming into force of the Act, i.e. 16.01.2014. He therefore, submits that under the old Act i.e. the Bombay Money Lenders Act 1946 (1946 Act), the corresponding section was Section 32B (b) and by virtue of Section 35A, the said penal section was non cognizable. Thus, it is his submission that the police could not have registered the said First Information Report as the offence is non-cognizable. He further submits that it is a settled principle of law that a solitary instance of money lending cannot lead to an inference that the person concerned is a money lender by profession.
He further submits that the question regarding the retrospective application of the Act of 2014 is no more res integra, and he relies on the judgment in the case of Baliram s/o Ashroba Kadape and others Vs. State of Maharashtra and others, 2018(3) Mh.L.J. (Cri.) 795, which is subsequently followed in the judgment in the case of Bhanudas s/o Baburao Dalve Vs. State of Maharashtra and another, 2025 (1) Mh.L.J. (Cri.) 133, where the Co-ordinate Bench have held accordingly.
Per contra, the learned Additional Public Prosecutor, while vehemently opposing the contentions advanced by the learned Senior Counsel, submits that there is enough material on record to proceed against the present applicants who are prima facie involved in the offence of money lending.
In light of these submissions, we have considered the contentions canvassed by the learned Counsel. In the judgment of Baliram s/o Ashroba Kadape (supra), this Court held as under:
“7.All the transactions allegedly entered into by the applicants have taken place before 2014 and, therefore, the provisions of Money Lending (Regulation) Act, 2014 would not be applicable. Crime would be governed by old Act i.e. Bombey Money Lenders Act, 1946. The alleged offences as per Act of 2014 are under section 23, 39, 45 and 48. Section 23 relates to taking of promissory note, acknowledgement or bond by a money lender not disclosing the real nature of transaction or taking blank instrument without mentioning date or amount. Section 39 relates to penalty for money lending without valid license. Section 45 is for molestation or abetting molestation of a debtor for recovery of debt due by him and section 48 only declares the certain offences shall be cognizable.
8.On going through the papers and hearing arguments, we find that there is absolutely no allegation about molestation of any debtor, so the offence under section 45 does not arise. Section 48 is not an offence. The only offences worth consideration are under section 23 and 39. The corresponding provisions under Bombay Money Lenders Act, 1946 are sections 32 and 32-B, respectively Both these offences are shown as non-cognizable offences under section 35-A under the new Act.
9.The Investigating Officer erred in applying the provisions of Maharashtra Money Lending (Regulation) Act, 2014 to the transaction which took place prior to date when this act came into force (24-2-2014). The Act 2014 can't be retrospective. Section 39 under the Act of 2014 is analogous to section 32B of the old Act, 1946 but under the old act the maximum punishment for the first offence was upto 1 year imprisonment and now it has been increased to 5 years. Under the new act, it has been made cognizable under section 48 whereas; under old Act, as per provisions of section 35-A, the offence was not cognizable.
10……
11.As per section 35-A of the old Act, 1946, the offence under section 32 and 32B are non-cognizable. In such situation, no FIR could have been registered. The police could have recorded NC case in register maintained under section 155 and the investigation could have carried out only after obtaining permission under section 155(2). When the investigation is carried out without obtaining permission from the Magistrate, it is without jurisdiction and the trial based on such investigation is vitiated. In this regard, reliance is placed on Lal Chand Fateh Chand and others vs. State of Punjab, 1964(2) Cri.L.J. 115”
This has been subsequently followed in Bhanudas Dalve (supra), wherein, agreeing with the earlier Division Bench, this Court in paragraph No. 13 recorded as under :
“13.It is settled legal principle that any penal provision cannot have retrospective operation. Section 39 of the Act of 2014 is brought on the Statute Book on 16-1-2014. Consequently, a person cannot be prosecuted or punished for the offence under section 39 of the Act of 2014, if the business of money lending was conducted prior to 16-1-2014. The position is no longer res integra and is squarely covered by a Division Bench judgment of this Court in the matter of Baliram Ashroba Kadape and others vs. State of Maharashtra and others reported in 2018(3) Mh.L.J. (Cri.) 795=2018 All MR (Cri) 2701. This Court has held that the provision of section 39 of the Act of 2014 does not have retrospective operation. It is further held that under the Bombay Money Lenders Act, 1946, the offence of money lending without licence was an offence under section 32-B. The said offence under section 32-B was not a cognizable offence in view of section 35-A of the said Act. It is thus held in the judgment that FIR could not have been registered for offence under section 32-B and accordingly, the FIR in the said case was quashed by this Court. We are in fully agreement with the law laid down in the matter of Baliram Ashroba Kadope (supra) and are also bound by the same. We are of the opinion that the controversy involved in the present matter is squarely covered by the said judgment. In the present case, all the alleged transactions of money lending are prior to commencement of the Act of 2014. Even if the applicant was to be prosecuted under the erstwhile Bombay Money Lenders Act, 1946, which has now been repealed, the FIR cannot be registered for the said offence, in as much as, the offence was non-cognizable under erstwhile Act and was time barred in view of punishment prescribed under old Act.”
In view of these facts and in view of the judicial pronouncements referred supra, the question is no more res integra that the Act of 2014 cannot have retrospective application. Admittedly, in the present matter, there is only one sole transaction and that too in the year 2004, and more particularly, 23.04.2004, which is the date on which the non-applicant No.2 alleges that there was a registered sale deed issued in favour of the present applicants. This is admittedly, prior to the Act of 2014 coming into force. As can be seen from the Act of 1946, Section 32B(b) made the business of money lending without a valid license a penal offence. However, the said section contemplated punishment of one year or with a fine, and for the second or subsequent offence, a punishment of two years, and a fine of Rs.5000/- was prescribed. In that view of the matter, the said section was non-cognizable, as can also be seen from Section 35A of the Act, which made only Sections 34 and 33 cognizable. In that view of the matter, Section 39 of the new Act could not have been applied, which is admittedly a cognizable offence. Thus, if any section was to be applied, that was Section 32B of the old Act, which, however, is non-cognizable. Thus, admittedly, the police could have recorded only a non-cognizable case in the register maintained under Section 155 of the Criminal Procedure Code. Investigation could have been carried out only after obtaining permission under Sub-Section 2 of Section 155 of the Criminal Procedure Code. Thus, an investigation without obtaining permission from the Magistrate is without jurisdiction, and the Trial based on such investigation is vitiated in view of the judgment (Chand Fateh Chand and others Vs. State of Punjab, reported in 1964(2) Cri. 115).
Thus, in our view, the question is no more res integra and would not trouble us any further. No offence is made out under Section 39 of the new Act, which has been invoked in the present First Information Report. The First Information Report and the consequent charge sheet are therefore void, and the criminal prosecution against the applicants cannot be continued. Further continuation would amount to abuse of the process of the Court and the travesty of justice. We, therefore, proceed to pass the following order :
ORDER
The application is allowed.
ii) The First Information Report dated 16.01.2020, in Crime No. 0019/2021, registered with the non-applicant No.1, Police Station Nandura, District Bhandara, for the offence punishable under Section 39 of the Maharashtra Money Lending (Regulation) Act, 2014, and the charge sheet filed in the said crime number dated 02.08.2021, filed by the non-applicant No.1, as also Regular Criminal Case No. 361/2021, pending on the file of learned Judicial Magistrate First Class, Nandura, is hereby quashed and set aside.
The application is allowed and disposed of in the above terms. No order as to costs.