Bombay High Court
Anup S/O. Niranjan Dodiya And Another vs State Of Maharashtra Thr. Police ... on 30 January, 2020
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Madhav J. Jamdar
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sIN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO.906 OF 2017
1. Anup s/o Niranjan Dodiya,
aged about 35 years, Occ.
Business
2. Niranjan Chunnilal Dodiya,
aged about 65 years, Occ.
Business
Both R/o Ratanlal Plot
Square, Akola, Tq. And Distt.
Akola ....APPLICANTS
// VERSUS //
1. State of Maharashtra,
through its Police Station
Officer, Police Station City
Kotwali, Akola.
2. Anup Gulabrao Agarkar, aged
about 40 years, Occ. Share
Broker, R/o Sudhir Colony,
Akola, Tq. And Distt. Akola. .... RESPONDENTS
Mr. Anil Mardikar, Senior Advocate with Mr. S.G. Joshi, Advocate for the
applicants.
Mr. T.A. Mirza, APP for the respondent No.1/State.
________________________________________________________________
CORAM : SUNIL B. SHUKRE AND
MADHAV J. JAMDAR, JJ.
DATE : 30.01.2020.
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JUDGMENT:[PER SUNIL B. SHUKRE, J.]
1. Heard Mr. Anil Mardikar, Senior Advocate for the applicants and Mr. Mirza, learned APP for respondent/State.
2. Nobody is present for respondent No.2. It is seen from the record that respondent No.2 has remained consistently absent despite service of notice on him twice.
3. Admit.
4. On 23.01.2019 this Court had directed production of Handwriting Expert's Report, considered necessary for final disposal, in the matter. Now Handwriting Expert's Report has been filed on record. Hence, the application is taken up for final disposal forthwith.
5. By this application, the applicants are seeking quashing of the First Information Report registered against them for offences punishable under Sections 420, 467, 468, 471, 384, 120-B of the Indian Penal Code and Sections 39 and 45 of the Maharashtra Money Lending (Regulation)Act, 2014 vide Crime No.223/2017 at Police Station, City Kotwali, Akola.
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6. Mr. Mardikar, learned Senior Advocate submits that the aforestated offences registered against applicants on 24.10.2017 are a result of a malafide complaint made by respondent No.2 against the applicants. He submits that similar attempt was earlier made by respondent No.2 and after having utterly failed in that attempt, respondent No.2 once again, with same allegations, approached the police and this time, he succeeded. He submits that in the complaint, the respondent No.2 has suppressed material facts and fraudulently obtained a favour from the police authorities in getting registered such offences as are punishable under Sections 420, 467, 468, 471, 384 and 120 B of the Indian Penal Code and also offences punishable under Sections 39 and 45 of the Maharashtra Money Lending (Regulation) Act, 2014 (hereinafter called for short as Money Lending Act, 2014).
7. Mr. Mardikar, further submits that one of us (Shukre, J) , on 14.09.2016, while disposing of Criminal Application No.822/2014, had observed that in so far as allegation of forgery of various cheques by applicant No.1 was concerned, no prima-facie case was made out and, therefore, quashed the impugned order directing investigation under Section 156(3) of the Code of Criminal ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 4/24 Procedure into those allegations. He points out that the Court consequently also quashed the order passed by learned Sessions Judge, Akola upholding learned Magistrate's order passed on 03.10.2013. He submits that three criminal cases being Summary Criminal Case Nos. 2328/2013, 2332/2013 and 2333/2011 filed by the applicants for dishonour of cheques under Section 138 of the Negotiable Instruments Act, 1881 were pending when First Information Report in the present crime was lodged, it was lodged on 24.10.2017. Learned Senior Advocate further submits that if the allegations made in the First Information Report are seen, one can very well notice that the complainant/respondent No.2 has admitted his signatures on all the cheques and it is his contention that these cheques, which were lying blank, were misused by the applicants in fraudulently recovering or attempting to recover certain sums of money from him. But, according to learned Senior Advocate for the applicants, these duly signed cheques would be covered by the statutory presumptions under Section 118 of the Negotiable Instrument Act, 1881 and, therefore, no offence on the basis of allegation of misuse of blank signed cheques by the applicants would be prima-facie made out.
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8. Learned Senior Advocate further submits that all the allegations about money lending transactions are of the year 2013 and the offences registered against the applicants are under Sections 39 and 45 of the Money Lending Act, 2014. He submits that for the alleged criminal acts of the year 2013, subsequent legislation of the year 2014 cannot be invoked. He also submits that in any case, applicants having been already held to be not indulging in any money lending business as per the order passed on 23.05.2017 by the Competent Authority in another matter initiated at the instance of one Manish Deshmukh, could not be said to be carrying on any business of money lending. He further submits that allegations made against the applicants about their carrying on money lending business without licence do not, on their face value, fall within the definition of money lending business given either in the Money Lending Act of 2014 or earlier legislation, Bombay Money Lenders Act, 1946.
9. Mr. Mirza, learned APP for the respondent/State submits that present Money Lending Act, 2014 has been wrongly invoked in the present case and the allegations made against applicants would attract provisions of Bombay Money Lenders Act, ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 6/24 1946. He also submits that there is sufficient material available on record regarding prima-facie constitution of alleged offences committed by the applicants.
10. In the First Information Report dated 24.10.2017, there are two kinds of allegations made against the applicants. First allegation is about the applicants misusing blank signed cheques for dishonestly obtaining advantage for themselves from the respondent No.2. The second allegation relates to carrying on of money lending business without licence and illegally by the applicants. Now, we would deal with these allegations one after another.
11. As regards the first allegation about forgery of cheques, we must say that respondent No.2 in the FIR itself admits his signatures on all the cheques. His only contention is that the signed cheques were blank and that they were somehow misused by the applicants in dishonestly gaining advantage from respondent No.2. When such an allegation is made, it is necessary for the complainant to elaborate as to how the cheques were without consideration and as to how the dates appearing on the cheques were not the dates on which they could be said to be issued, in view of the presumption ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 7/24 available under Section 118 of the Negotiable Instruments Act, 1881 (for short "the NI Act"). This presumption is of course rebuttable (See M.S. Narayana Menon @ Mani Vs. State of Kerala and another (2006) 6 SCC 39 and K. Prakashan Vs. P.K. Surenderan (2008) 1 SCC 258. So, in order to prima-facie dislodge the presumption, a complainant alleging forgery of cheques and consequent cheating must state in the complaint itself such facts and circumstances as would prima-facie indicate palpable fraudulent user of the cheques. In the absence of such relevant facts and circumstances having been stated in the complaint, we would say, the presumption arising from Section 118 of the N.I. Act would not stand prima-facie dethroned. In order to have a clear idea about what it takes to disclose prima-facie offences of forgery and cheating based on alleged or assumed misuse of cheques let us have a look at Section 118 of the N.I. Act. It reads thus:-
118. Presumption as to negotiable instruments. Until the contrary is proved, the following presumptions shall be made:-
(a) of consideration.- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;
(b) as to date.- that every negotiable instrument bearing a date was made or drawn on such ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 8/24 date;
(c) as to time of acceptance.- that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity;
(d) as to time of transfer.- that every transfer of a negotiable instrument was made before its maturity;
(e) as to order of indorsements.- that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon;
(f) as to stamp.- that a lost promissory note, bill of exchange or cheque was duly stamped;
(g) that holder is a holder in due course.-
that the holder of a negotiable instrument is a holder in due course.
Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him."
12. The presumption contained in Section 118 of the N.I. Act, sufficiently indicates that every negotiable instrument bearing a date was made or drawn on such date and and until the contrary is proved, it shall be presumed that the negotiable instrument has been issued for a consideration incorporated therein that it has been issued on the date and time shown therein, that it has been duly stamped (if necessary), and that it's holder is the holder in due ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 9/24 course, unless it has been shown that the instrument has been obtained from its lawful owner or custodian by means of an offence or fraud.
13. The presumption under Section 118, as stated earlier, is rebuttable. Question here is, whether respondent No.2 has alleged anything in the complaint or produced before police any document, as would show prima-facie dishonest user of the cheques by the applicants or not. On going through the complaint and also the reply of the State, we find that neither such facts and circumstances are stated as would prima-facie show fraudulent use of the cheques by the applicants nor any document is produced so as to even hint at any commission of offence or fraud in obtaining the custody of the cheques by the applicants from the respondents. Therefore, it could not be said that offences registered against the applicants under Sections 420, 467, 468, 471, 384 and 120 (B) Indian Penal Code are prima-facie made out against them. Besides, applicants have also filed complaint cases against respondent No.2 under Section 138 of the Negotiable Instrument Act, 1881 reference of which has already been made in the earlier paragraphs. But pendency of these cases has been suppressed by the respondent ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 10/24 No.2, in his criminal complaint perhaps with a view to cause harassment to the applicants. This aspect of the matter would make us believe that the complaint filed against the applicants was with a malafide intention to extirpate cases filed under Section 138 of the N.I. Act by the applicants against the respondent No.2. This would only strengthen our conclusion drawn earlier as regards the offences registered against the applicants under earlier mentioned Sections of I.P.C.
14. In State of Haryana & Ors. Vs. Ch. Bhajanlal AIR 1992 SC 604, Hon'ble Supreme Court has, by way of illustration, given seven categories of cases (para- 108) wherein Courts in exercise of extra ordinary power under Article 226 of the Constitution of India, or inherent power under section 482 Cr.P.C., can quash the FIR either to prevent abuse of the process of Court or otherwise to secure the ends of justice, though it clarified that it may not be possible to lay down any precise, clearly defined and sufficiently channelised guide-lines. These categories are as under:-
(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;
(2) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 11/24 justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code;
(3) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;
(4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code;
(5) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;
(7) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
15. In our opinion, the present case, in so far as IPC offences are concerned, would fall in categories (1) and (7) mentioned above. Thus we find great substance in the arguments of learned Senior Advocate made in this regard.
16. As regards the offences registered against applicants under the provisions of Money Lending Act, 2014, which are Sections 39 and 45, we must say that this Act could not have been ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 12/24 invoked against applicants for the simple reason that the transactions of money lending alleged against the applicants were of the year 2013, and so the bar of Article 20 of the Constitution of India would apply. If any offence, for these allegations, is sought to be made out against the applicants, it would be under the provisions of the Bombay Money Lenders Act, 1946, and in that case the offences would be under Sections 32 B and 33 of this Act. Even in such a case, we would further say, it would not have been possible for the authorities to do so. There is more than one reason for this conclusion.
17. One reason could be seen in the punishment prescribed for such offences as would relate to carrying on of money lending business without licence and molestation or abetting molestation of a debtor for the recovery of debt due by him to a creditor respectively punishable under Sections 32B and 33 of 1946 Act. Maximum punishment prescribed for these offences is one year for the first instance and two years for the second or the subsequent offence. In the present case, given the nature of allegations against the applicants, applicable maximum punishment for these offences would be of one year.
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18. Section 468 of the Cr.P.C. provides for a bar of limitation for taking cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
Section 468 reads thus:-
"468. Bar to taking cognizance after lapse of the period of limitation.-
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be-
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years.
[(3)] For the purpose of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more sever punishment or, as the case may be, the most severe punishment.]"
It would be clear that when the period of limitation prescribed in sub-section (2), expires, no Court can take cognizance of the offence. In the case of State of Punjab Vs. Sarwan Singh, 1981 SCALE (1) 619, Hon'ble Apex Court held that object of Criminal ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 14/24 Procedure Code in putting a bar of limitation on prosecutions was clearly to prevent the parties from filing cases after a long time, as a result of which material evidence may disappear. The Hon'ble Apex Court also found that the bar of limitation would help prevent abuse of the process of the court which otherwise be the consequence when vexations and belated prosecutions long after the date of the offence are instituted. The Hon'ble Apex Court further found that such bar of limitation would apply to any prosecution, whether by the State or a private complainant, who all must abide by the letter of law or take the risk of the prosecution failing on the ground of limitation. This would only show that even if any investigation is made by the police in relation to an offence cognizance of which cannot be taken owing to bar of limitation, any prosecution launched upon such investigation must fail. That would mean that filing of a complaint as regards a time barred offence would not, in any case, meet its logical end. Even if a final report under Section 173 Cr.P.C. is filed by the police, no Court would take its cognizance in view of the provisions contained in Section 468 Cr.P.C. So, filing of a complaint as regards a time barred offence could be a reason for exercise of inherent power under Section 482 Cr.P.C. by this Court in quashing the FIR.::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 :::
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19. As stated earlier, in the present case, the maximum punishment for the offences punishable under Sections 32 B and 33 of 1946 Act, in so far as the allegations against applicants are concerned, is of one year. Under Section 468 (2)(b), the period of limitation is of one year. This period of limitation has to be computed from the date of alleged offence or the date from which the knowledge of the alleged offence is acquired by the complainant. This is also the view taken by the Punjab and Haryana High Court in the case of Janardhan Upadhyay Vs. The State of Punjab reported in AIR (2007 ) P H 86 decided on 28.02.2007.
20. In the present case, respondent No.2 has not given any probable date of the commission of the offences relating to illegal carrying on of business of money lending by the applicants. He has only stated that there were several transactions in between him and the applicants in July, 2007 to April, 2013. It is his contention that the offence of illegal carrying on of money lending business by the applicants was evident from the transactions that took place between July, 2007 to April, 2013. If the last of the transactions of April, 2013 is considered as relevant for reckoning the period of limitation of one year, as per Section 468 (2)(b) Cr.P.C., it would ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 16/24 expire in April, 2014 and, therefore, no useful purpose would be served by carrying out any investigation into such an offence, of which no Court can take cognizance.
21. Second reason is based upon the general principle of criminal jurisprudence. Whenever, there is a delay in lodging of an FIR, the Court is required to look for plausible explanation for the delay and in the absence of any such explanation, delay would have to be understood either as fatal or non fatal to the prosecution depending upon facts and circumstances of the case. If the facts and circumstances of the case disclose that there is no explanation given expressly or impliedly and also indicate that they are very unlikely to unfold the plausible explanation for the delay in due course, delay could be considered as fatal. The reason being that prompt reporting of the occurrence of the incident by the informant rules out any possibility of exaggeration or false implication or stating of imaginary facts with a view to wreak vengeance against the accused.
22. These principles have been elaborately stated in the case of Kishan Singh (D) Thru LRs vs Gurpal Singh & Ors reported in ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 17/24 (2010) 8 SCC 775, Paragraphs 21 and 22 being relevant, are reproduced as under:-
"21. Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the FIR, the complainant must give explanation for the same. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. (vide: Sahib Singh Vs. State of Haryana).
22. In cases where there is a delay in lodging an FIR, the Court has to look for a plausible explanation for such delay. In the absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. Vs. Maharaj Singh; State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors.; G. Sagar Suri & Anr. Vs. State of U.P. & Ors.,; and Gorige Pentaiah Vs. State of A.P. & Ors.)".::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 :::
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23. In the instant matter, there is no plausible explanation given nor is there any reasonable possibility of the facts and circumstances of the case unraveling any explanation in due course for the delay. From the FIR filed by respondent No.2, it is seen that the loan transactions between applicants and he himself, were from July 2007 till April, 2013 and that they had a background of respondent No.2 entering into various commercial transactions relating to the business of brokership with the applicants. Respondent No.2 maintains that during the course of those transactions of brokership, he was required to obtain loan from time to time from the applicants and applicants while lending money to him charged hefty interest from him. In the last paragraph of the complaint, respondent No.2 alleges that when the accounts were examined by him in the year 2017, he discovered the fraudulent and dishonest activities of the applicants. It is unacceptable that a person has financial relations with another, obtains loan from another from time to time, pays interest on the borrowed sums for years together, but does not check the accounts for all these years, here for 10 long years. In such a case, any man of prudence would like to ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 19/24 know first as to why such lethargy or carelessness and the person sleeping for so many years must quench the curious thirst of the prudent man for the explanation. The respondent No.2, however, has kept complete silence on the explanation any man of reason and ordinary prudence would expect in such a case. There are also no facts and circumstances present on record which would create any possibility of revealing any such explanation in due course of time. Thus, the delay occurred in approaching the police in the present case has proved to be fatal to the complaint lodged by respondent No.2 against the applicants and this is another reason why the first the first information report deserves to be quashed and set aside.
24. Another reason why we would say that offences punishable under Sections 32 B and 33 of 1946 Act would not be made out in this case lies in the nature of allegations made against the applicants by the respondent No.2. The very foundation of these offences is of carrying on of "business of money-lending". Therefore, it was necessary for the respondent No.2 to have made specific allegations from which ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 20/24 it could have been possible to infer that the money that was advanced as loan by the applicants was not the singular and odd instance but was a part of a business regularly carried out by the respondent No.2. It was also necessary for the respondent No.2 to have shown that as part of regular business activity, the applicants used to advance loans to different persons, with a view to gain profit or claim some advantage for earning money or for achieving an object of earning of livelihood. Presence of such material and making of specific allegations on these lines is necessary in order to fulfill the ingredients of the offence of carrying on of "business of money lending". This could be gauged from the definition of this expression given in Section 2 (2) of the Bombay Money Lenders Act, 1946. It reads thus:-
"(2) "business of money-lending" means the business of advancing loans whether in cash or kind and whether or not in connection with or in addition to any other business".
25. It would be clear from the definition of "business of money-lending" that the activity of money lending comprises such acts as advancing loans in cash or kind in connection with or in addition to any other business. The term "business" has not been defined in the Act of 1946 and, therefore, for understanding the ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 21/24 meaning of this word, a noun, we may take recourse to it's dictionary meaning. In Black's Law Dictionary, Eighth Edition, the noun (business) is defined as under:-
Business:-
"1. A commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.
2. Commercial enterprises< business and academia often have congruent aims>.
3. Commercial transactions< the company has never done business in Louisiana>."
26. The dictionary meaning of the word "business" would show that when an activity is carried out as a business, it is done regularly and habitually for profit or gain and that the activity has a predominantly commercial flavour of consistent nature.
27. In the case of Smt. Janaki Bai Chunnilal Vs. Ratan Melu and another, reported in AIR 1962 Madhaya Pradesh 117, Full Bench of Madhya Pradesh High Court interpreting, inter-alia, provisions made under Section 11 F of C.P. and Berar Money- Lenders Act which laid down that no person shall carry on the business of money lending in any district unless he holds a valid ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 22/24 certificate in respect of that district, a provision identical to the provision of Section 10 of Bombay Money Lenders Act, 1946, made significant observations and clarified what the term "business" would mean. It held that the term "business" has two elements, one of continuity and the other of the aim of gain which should together form a series of transactions before they could collectively constitute a business. These observations suggest that a singular or occasional advance of loan without their being any serial advances, would not amount to any business of money lending. Observations made in paragraph 13 of the judgment being relevant are reproduced thus:-
"Secondly, business is a complex concept which cannot be defined with precision. In my opinion, at least the two elements of continuity and the object of gain should interlace a series of transactions before they could collectively constitute a business."
28. Thus, the dictionary meaning as well as the interpretation of the term "business" given by a Full Bench of Madhya Pradesh High Court in the above referred case would show that a business is an activity which is carried out regularly with the dominant object being of earning profit or gain. That would mean that any lending of money occasionally or irregularly and not as a part of any commercial enterprise carried on consistently with a view to earn livelihood or profit, would not be covered by the ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 23/24 definition "business of money lending" and as such it would not attract in any way any offences relating to or arising from carrying on of money lending business without licence, in the present case, Sections 32 B and 33 of 1946 Act.
29. We must say that what is true about "business of money lending" as defined in the 1946 Act is also true about this expression appearing in the Money Lending Act, 2014 and so, no offences even under 2014 Act would be attracted in the present case.
30. Learned Senior Advocate has referred to a finding recorded by a competent authority in a case filed by one Manish Deshmukh that applicants are not money lenders. We do not think that any reliance could be placed upon that finding, it being a finding of fact recorded in a case to which the complainant was not a party, and so we ignore it.
31. In the circumstances, we find that neither the offences registered under various Sections of IPC nor the offences registered under the Act of 2014 or for that matter Act of 1946, against the ::: Uploaded on - 04/03/2020 ::: Downloaded on - 21/03/2020 21:42:25 ::: 906 apl 906.17 jud.odt 24/24 applicants are prima-facie made out and, therefore, any continuation of the investigation of crime and /or criminal proceedings would be an abuse of the process of law and as such, we are inclined to allow this application.
32. The application is allowed in terms of prayer clause (i).
JUDGE JUDGE
manisha
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