Baliram S/o Ashroba Kadape vs The State of Maharashtra

Rule. Rule made returnable forthwith. With the consent of

parties, matter is taken up for final disposal at admission stage.

The three applicants seek quashing of FIR registered at

C.R. No. 09/2017 at Ashti Police Station, Tq. Partur, against them for

offences punishable u/s 23, 39, 45 & 48 of Maharashtra Money

Lending (Regulation) Act, 2014.

It is the case of the applicant that, applicant no. 1 was a

member and leader of Bhartiya Janata Party (BJP) and was President

of Zilla parishad, Jalna in 1997-98. In October - 2006, he left the

party and contested the election against son of Shri. Lonikar,

Guardian Minister of Jalna. Annoyed by the decision taken by

applicant no. 1, the Guardian Minister - Mr. Lonikar tried to implicate

him so as to eliminate any opposition to his son and some complaints

were filed against him regarding money lending business so that he

should not be in position to contest the election. On the basis of such

reports, Asst. Registrar lodged the impugned FIR on 15.05.2007 at

Ashti Police Station. The allegations made therein are false. Out and

out sale transaction with Murlidhar Kekan and Parbata Pote were

falsely described as money lending transactions. The complaint

against applicant no. 3 - Namdeo is with regard to mortgage

transaction of 1998. The Asst. Registrar had inspected his premises

on 09.03.2017 and nothing incriminating was found in his house, still

the FIR was lodged. The provisions of Maharashtra Money Lending

(Regulation) Act, 2014 are not attracted to the alleged transactions.

The FIR is abuse of process of law and deserves to be quashed. The

applicants have given proper reply and explained all the facts. The

applicant no. 2 was a minor a the time of many transactions, still the

FIR was lodged.

The respondent though served did not file any reply.

Learned APP has filed the papers of investigation and opposed the

quashing of FIR.

Heard learned advocate Shri. S. S. Thombre for the

applicants in Criminal Application No. 3884 of 2017 and Shri. S. P.

Mundhe, learned counsel for applicants in Criminal Application No.

4555 of 2017 and learned APP Shri. V. M. Kagne for the State.

The learned advocates for the applicants have taken us

through the FIR and papers of investigation. They have argued about

the political enmity. They argued for quashing of the FIR on three

grounds as follows :

(i) The allegations taken at their face value do not make out offence.

(ii) The allegations are inherently improbable.

(iii) The criminal proceeding is manifestly attended with mala fide for wreaking vengeance.

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 u/s 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.

On going through the papers and hearing arguments, we

find that there is absolutely no allegation about molestation of any

debtor, so the offence u/s 45 does not arise. Section 48 is not an

offence. The only offences worth consideration are u/s 23 and 39.

The corresponding provisions under Bombay Money Lenders Act,

1946 are Sections 32 & 32(B), respectively. Both these offences are

shown as non-cognizable offences u/s 35(A) under the new Act.

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 (24.02.2014). 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 u/s 48

whereas; under old Act, as per provisions of Section 35A, the offence

was not cognizable.

As far as merit of the case is concerned, we find that the

papers filed by police disclose several allegations. It is alleged that,

15 sale deeds were seized from the accused and 134 sale deeds were

obtained by the accused persons for total land of 161.90 hectares.

Many sale deeds were seized from the accused persons. Some blank

stamps papers signed by the purported borrowers were also seized.

The ld. advocate for the applicants have tried to explain each and

every transaction. This Court cannot take the role of trial judge who

can consider at the time of framing charge whether there is sufficient

material or not. The allegations and the recovery of the documents

from the accused persons disclose that, on merits, this is not a fit case

for quashing of the FIR.

As per Section 35A of the old Act, 1946, the offence u/s 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 u/s 155 and the investigation could have carried out only

after obtaining permission u/s 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 v. The State of Punjab, 1964(2) Cri. L. J. 115.

In view of above, the whole investigation is carried out

illegally, the FIR deserves to be quashed. However, the quashing of

this FIR shall not affect the rights of the respondents to seek

permission u/s 155(2) Cr.P.C . to seek investigation in the crime

provided, it is permissible under the law. The observations made

herein above are made only for deciding this application and shall

not be considered elsewhere.

ORDER

The FIR at C.R. No. 09/2017 registered at Ashti Police

Station, Tq. Partur, for offences punishable u/s 23, 39, 45 & 48 of

Maharashtra Money Lending (Regulation) Act, 2014, is hereby

quashed.

Rule is made absolute in above terms. No order as to costs.