Bombay High Court
Shri. Vijay S/O. Mahadeorao Kubde vs State Of Maharashtra Thr. Police ... on 18 August, 2017
Bench: Vasanti A Naik, M. G. Giratkar
1808CRWP48.17-Judgment 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 48 OF 2017
PETITIONER :- Shri Vijay s/o Mahadeorao Kubde, Aged
about 67 years, Occ. Business, r/o Kubade
Heights, Gandhi Chowk, Amravati.
...VERSUS...
RESPONDENTS :- 1. State of Maharashtra, Through Police
Station Officer, City Kotwali Police Station,
Amravati.
2. Deputy Registrar, Co-operative Societies,
Amravati, Taluka, Amravati.
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Mr.K.H.Deshpande, Sr.Counsel with Mr. Akshay Sudame,
counsel for the petitioner.
Mr. S.S.Doifode, Addl.Public Prosecutor for the respondents.
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CORAM : SMT. VASANTI A NAIK &
M. G. GIRATKAR
, JJ.
DATED : 18.08.2017 O R A L J U D G M E N T (Per : Smt.Vasanti A Naik, J.) Rule. Rule made returnable forthwith. The criminal writ petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.
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2. By this criminal writ petition, the petitioner has sought the quashing and setting aside of the first information report bearing No.17 of 2017 registered against the petitioner for the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014.
3. The petitioner is a licensed money lender and runs a jewellery shop in Amravati. On 10/04/2015 the State of Maharashtra had issued a government resolution deciding to waive the loan of the farmers of Vidarbha and Marathwada region. According to the respondents, they had asked the petitioner to submit the list of debtors, who had pawned the articles/goods with the petitioner towards security while securing the loan. Initially, according to the respondents, the names of the list of debtors was required to be supplied, till 31/12/2015. The date for submission of the list was then extended till 31/03/2016. It is not in dispute that the petitioner submitted the list of the debtors on 29/01/2016. Since the petitioner had not supplied the names of the debtors village-wise and taluka-wise, the respondents again asked the petitioner to send the names of the debtors, accordingly. The petitioner has sent the list of debtors village-wise /taluka-wise to the respondents on 15/02/2016 and 02/03/2016 respectively. A list of 570 debtors was tendered by the petitioner to the ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 ::: 1808CRWP48.17-Judgment 3/11 respondents. It is the case of the respondents that certain complaints were received against the petitioner/money lender from some agriculturists that though they had secured loan from the petitioner by pawned certain articles with the petitioner towards security, their names were not included in the lists furnished by the petitioner on 15/02/2016 and 02/03/2016. On the verification of the complaints, the respondents initiated the action for cancellation of the money lender licence against the petitioner by serving a couple of show causes notices on him. The respondents also registered a first information report against the petitioner for the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014. According to the petitioner, even if the allegations in the first information report are accepted at their face value in the entirety, the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014 could not be prima facie made out against the petitioner. The petitioner has therefore sought for the quashing and setting aside the first information report.
4. Shri Akshay Sudame, the learned counsel for the petitioner, submitted by taking this court through the relevant provisions of the Penal Code and the Maharashtra Money Lending ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 ::: 1808CRWP48.17-Judgment 4/11 (Regulation) Act, 2014 as also the first information report that prima facie the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014 cannot be made out against the petitioner. The learned counsel relied on the judgments reported in (1992) SCC (Cri) 426 (State of Haryana v. Bhajan Lal), (2004) 6 SCC 522 (State of A.P. v. Golconda Linga Swamy) and (2005) 1 SCC 122 (Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque) to submit that despite the acceptance of the allegations made in the first information report against an accused at their face value, in the entirety, prima facie the offence that is registered against the said accused cannot be made out, the first information report is liable to be quashed and set aside. It is submitted that according to the allegations in the first information report, the petitioner had not sent the names of all his debtors to the respondents, as a result of which, the debtors were deprived of the benefit of loan waiver scheme to which they could have been entitled in view of the government resolution dated 10/04/2015. It is submitted that mistakenly, the names of 50 debtors could not be submitted before the deadline and the mistake committed by the petitioner was bona fide. It is submitted that the petitioner cannot be proceeded against for having committed the offence of criminal breach of trust or cheating or of dishonestly or fraudulently preventing the debt being available for ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 ::: 1808CRWP48.17-Judgment 5/11 the creditors. It is submitted by taking this court through the provisions of sections 405, 406, 415, 420 and 422 of the Penal Code and sections 24 and 25 of the Maharashtra Money Lending (Regulation) Act, 2014 that the ingredients of the offences under the said provisions cannot be made out against the petitioner even if the allegations in the first information report are accepted in totality, at their face value. It is submitted that after taking action against the petitioner for cancellation of his licence, there was no propriety in the action on the part of the respondents of registering the first information report against the petitioner for the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014.
5. Shri Doifode, the learned Additional Public Prosecutor appearing for the respondents, has opposed the prayer made in the petition. It is submitted by referring to the first information report that though the petitioner was duty bound to send the names of all his debtors to the respondents before the extended date for submission of the list, i.e. 31/03/2016, the petitioner had not submitted the list of all his debtors before 31/03/3016. It is submitted that in view of the inaction on the part of the petitioner to furnish the list of some debtors, who had availed the loan from the petitioner, the debtors were deprived of the benefit of the loan waiver scheme as per the government ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 ::: 1808CRWP48.17-Judgment 6/11 resolution dated 10/04/2015. It is stated that in the circumstances of the case, action was initiated against the petitioner under the provisions of the Maharashtra Money Lending (Regulation) Act, 2014 for the cancellation of his licence and a first information report was rightly registered against him. The learned Additional Public Prosecutor sought for the dismissal of the writ petition.
6. It appears on a reading of the first information report that the allegation of the respondents against the petitioner is that the petitioner did not furnish the list of all his debtors before the deadline, i.e. 31/03/2016, with the result, some of the debtors, who may have been entitled to the benefit of the loan waiver scheme floated by the State Government in pursuance of the government resolution dated 10/04/2015 were deprived of the benefit of the said scheme. The first information report is registered against the petitioner for the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014. It would necessary to consider the provisions of sections 406, 418, 422 and 427 of the Penal Code. Section 406 of the Penal Code provides for the punishment for criminal breach of trust. Criminal breach of trust is defined under section 405 of the Penal Code. The relevant provision of section 405 of the Penal Code reads thus:-
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405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
It is clear from a reading of the provisions of section 405 of the Penal Code that the allegations in the first information report even if they are accepted at their face value cannot result in prima facie holding that the petitioner has committed criminal breach of trust. For attracting the ingredients of section 405 of the Penal Code, a person should dishonestly misappropriate or convert the property entrusted to him or on which he has any dominion, or should dishonestly use or dispose of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged. There are no allegations in the first information report that the petitioner had dishonestly sought to misappropriate the property of the debtors as his own or had dishonestly disposed of the property. Though the ingredients of section 405 of the Penal Code cannot be prima facie attracted, the offence punishable under section 406 of the Penal Code is wrongly registered against the petitioner. It would now be necessary to ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 ::: 1808CRWP48.17-Judgment 8/11 consider whether the provisions of section 418 of the Penal Code could be attracted on the basis of the allegations in the first information report. Section 418 of the Penal Code reads thus:-
418. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. - Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law, or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
It is clear from a reading of section 418 of the Code that for attracting the said provision it would be necessary for a person to cause wrongful loss to another person, whose interest in the transaction to which the cheating relates, he is bound to protect and cheats the other person with the knowledge that it is likely that he would cause wrongful loss to the other person. There is no allegation in the first information report that the petitioner had with knowledge of causing wrongful loss to the debtors or likely to cause wrongful loss to the debtors, cheated the debtors. Even if the allegations in the first information report are accepted at their face value, prima facie an offence punishable under section 418 cannot be made out. ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 :::
1808CRWP48.17-Judgment 9/11 Such is also the case in respect of the offences punishable under sections 422 and 427 of the Penal Code. The provisions of sections 422 and 427 of the Penal Code read thus:-
422. Dishonestly or fraudulently preventing debt being available for creditors. - Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to any other person from being made available according to law for payment of his debts or the debts of such other person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
427. Mischief causing damage to the amount of fifty rupees. - Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
It is apparent that on the basis of the allegations in the first information report, the ingredients of sections 422 or 427 of the Penal Code cannot be prima facie made out. Even for committing mischief, mens rea or the intention to cause the wrongful loss or damage to the public or any person would be required. There is no allegation in the first information report that the petitioner had the intention to cause wrongful loss or damage to the debtors. There is no allegation in the first information report that the petitioner had knowingly caused wrongful loss or damage to his debtors. In the ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 ::: 1808CRWP48.17-Judgment 10/11 absence of any allegation in respect of the knowledge pertaining to the mischief of causing damage to the debtors, the first information report could not have been registered against the petitioner for the offence punishable under section 427 of the Penal Code. The provisions of section 422 of the Penal Code are also not attracted in this case.
7. Also, the offence punishable under section 43 of the Maharashtra Money Lending (Regulation) Act, 2014 could be registered against a money lender only if he contravenes the provisions of sections 24 and 25 of the Act. Section 24 of the Act enjoins a duty upon the money lender to maintain the accounts and furnish copies of the accounts. So also, section 25 of the Act of 2014 makes it obligatory for the money lender to deliver the statement of accounts and copies thereof to the concerned authorities from time to time. There is no allegation in the first information report that the petitioner had contravened the provisions of sections 24 or 25 of the Act by not maintaining and furnishing the copies of the accounts and by not delivering the accounts to the respondents from time to time. The allegation in the first information report is that though the petitioner was required to furnish the names of all the debtors as per the government directions, in the resolution dated 10/04/2015 and the circulars extending the date for furnishing the list of debtors till ::: Uploaded on - 22/08/2017 ::: Downloaded on - 23/08/2017 01:59:35 ::: 1808CRWP48.17-Judgment 11/11 31/03/2016, the petitioner had failed to include the names of some of his debtors in the list furnished by him in the month of February and March, 2016. The provisions of sections 24 and 25 of the Maharashtra Money Lending (Regulation) Act, 2014 cannot be attracted in this case. Hence, by applying the principles laid down by the Hon'ble Supreme Court from time to time in the matter of quashing of the first information report, specially in the judgments reported in (1992) SCC (Cri) 426, (2004) 6 SCC 522 and (2005) 1 SCC 122, it would be necessary to quash and set aside the first information report registered against the petitioner for the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014.
8. Hence, for the reasons aforesaid, the writ petition is allowed. The first information report bearing No.17 of 2017 registered against the petitioner for the offences punishable under sections 406, 418, 422 and 427 of the Penal Code and section 43 of the Maharashtra Money Lending (Regulation) Act, 2014 and the proceedings arising there from, are hereby quashed and set aside. Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
KHUNTE
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