1. The petitioner before me was the accused in the Courts below against whom an allegation was made that he was carrying on money lending business in the village Ambet without the requisite licence in that behalf under the Bombay Money-Lenders Act.
2. The complaint against him was that between 24th June 1974 and 4th November, 1975, he was found carrying on business of money lending without licence at village Ambet and had thereby committed offence under S. 5 read with S. 34 of the Money-Lenders Act. Both the Courts have found him guilty of the offence alleged against him and hence the present revision application was filed by the original accused.
2A. Very briefly stated the prosecution case was as follows :-
P.W. 1, Abdul Shakur Hussein Miya Dhoken, made a complaint at the Police Station that the accused used to go to the village Ambet for business of money lending. His grievance was that during the period from 1964 to 1974 his wife had pledged her ornaments with the accused and had received loan from him; that the accused used to charge interest at the rate of 3% per month; that on 25th May 1974, the witness paid a sum of Rs. 3200/- to the accused and got some ornaments redeemed and that when on 29th October, 1975, the witness went to the accused at Mahad for demanding the remaining ornaments pledged by his wife with the accused, the accused demanded a sum of Rs. 10,000/- for redeeming the remaining ornaments. The allegation was that as a matter of fact the accused tried to evade his obligation to return the ornaments. In these circumstances, the witness contacted the police and on 4-11-1975 a report was filed by him at the Police Station. After the necessary investigation a charge-sheet was filed against the accused by the police on 30th November, 1975, in the Court of Judicial Magistrate, F. C. Shriwardhan, for an offence under S. 5 r/w. S. 34 of the Money-Lenders Act.
3. The case was tried by the learned Magistrate as a summary case. Hence no question of framing formal charge as such arose. However, from the summary of the case it is evident that the offence that was complained of against the accused was the following :-
'Between 24-6-1974 to 4-11-1975 you were found carrying on business of money lending without licence at village Ambet and thereby committed an offence under Section 5 r/w. S. 34 of Money Lenders Act.' It is thus clear that it is not the case of the prosecution that the accused had no money lending licence whatsoever. The case of the prosecution appears to be that the accused did not have money lending licence at village Ambet. It was, therefore, necessary for the prosecution to lead evidence to show that the accused was carrying on business of money lending at Ambet.
4. It is needless to state that the accused pleaded not guilty ant hence the evidence was led by the prosecution to prove the offence on the part of the accused for breach of the provisions of S. 5 of the Bombay Money-Lenders Act. In all 10 witnesses were examined by the prosecution. It is needless to go through the evidence of all the witnesses. The gist of the evidence of all the witnesses has been believed by both the Courts below and I find no reason to disagree with the findings arrived at by both the Courts below and I find no reason to disagree with the findings arrived at by both the Courts below as regards the said evidence. Out of the 10 witnesses, 7 prosecution witnesses stated that ornaments had been pledged with the accused against which security accused had advanced certain amounts to them and that the rate of interest charged by the accused was of 3% per month. The relevant witnesses also stated further that when they tried to get back the ornaments by payment of the amounts, the accused evaded return of the ornaments, fraudulently concealed and retained the ornaments with him. On the strength of the evidence the learned Magistrate found that the accused was guilty of the offence under S. 5 r/w. S. 34 of the Bombay Moneylenders Act.
It may be stated here that during the investigation, the police had seized and attached certain articles of jewellary from the house of the accused and the various prosecution witnesses had given evidence in the Court to the effect that those were the articles of jewellery which they had pledged with the accused and that initially the accused had advanced loan to the witnesses against the pledge of the said ornaments. The said evidence was believed by the learned Magistrate. While passing the order relating to the disposal of Muddamal properly lying in the Court, the learned Magistrate directed that the articles of jewellery bearing Article Nos. 3 and 4, be returned to P.W. 2, Rukiya Thokan; that Articles Nos. 8 and 13 be returned to P.W. 3, Khadija Charfare; that Article No. 5 be returned to P.W. 5, Saudabai Kundake; that Articles Nos. 14, 15 and 16, be returned to P.W. 6, Babiyabibi Charfare and that Articles Nos. 14, 15 and 16, be returned to P.W. No. 7 Abdul Razak Daware. It may be stated here that it was only P.W. 4, Abdulla Mohamed Zatam, to whom no ornaments could be returned by the order of the Court even though he had claimed that he had pledged Vajratik, bangles, Kadiya (Pair of silver) with the accused, on 7th March, 1966 against a loan of Rs. 400/- with interest at the rate of 3% per month. No order for the return of the said articles could be passed in favour of the said P.W. 4, not because the Court disbelieved the said witness when he said that he had in fact pledged the said ornaments with the accused. No relief could be granted to the said P.W. 4, only because he could not identify any article from the articles seized from the accused and produced before the Court to be the article pledged by him with the accused.
5. The accused was sentenced by the Trial Court to suffer simple imprisonment for two months and to pay a fine of Rs. 200/- and in default to suffer further simple imprisonment for one month. The said order of conviction and sentence has been confirmed by the learned Addl. Sessions Judge in appeal. Hence it needs hardly be stated that the order dismissing the appeal and confirming the judgment of the Lower Court resulted in confirming the order relating to disposal of the property passed by the learned trial Magistrate. In the present revision application, various point have been urged on behalf of the accused before me. But before dealing with the various points I must state that Shri Chitnis the learned Advocate appearing for the accused had made it clear before me that his present revision application was confined only to the order of conviction and sentence and that he would not make any grievance about the order of disposal of Muddemal property. In fact he made it clear that even if the present revision application was to be allowed by this Court on any ground whatsoever he would not ask for any order from this Court affecting the order passed by the learned trial Magistrate and which was confirmed by the learned Addl. Sessions Judge in relation to the disposal of the Muddamal property. Mr. Chitnis made it clear on behalf of his client that even if the revision application was allowed, still the disposal of muddamal property should be made in accordance with the order passed by the learned Magistrate in that behalf. In fact his client has filed an affidavit to that effect in this Court giving an undertaking to this Court that irrespective of the result of the revision application, the disposal of the muddamal property before the Court should be made and should be allowed to be made strictly in accordance with the order passed by the learned trial Magistrate. Moreover, he has further stated that he was prepared to deposit a sum of Rs. 1,000/- in this Court for being paid to P.W. 4, namely Abdulla Mohamad Sale Zatem, who had come to the Court with the grievance that his ornaments worth about Rs. 1,000/- to Rs. 1500/- were not returned by the accused to him in spite of the fact that the amount of loan stood fully repaid. I may further state that the petitioner was allowed to deposit the said amount in this Court and accordingly he in fact deposited the said amount in this Court with a statement that the same was deposited for being paid to P.W. 4, Abdulla Mohamed Sale Zatem. The said statement has been duly recorded and the affidavit filed by the petitioner in that behalf has been taken on record.
6. I will now turn to the various points urged by Mr. Chitnis, in support of his contention that the order of conviction of the accused was illegal. The first point raised by Mr. Chitnis ins that the entire proceedings were illegal in view of the bar of limitation contained in Section 468 of the Criminal P.C. According Mr. Chitnis, on the complainant's own showing, the offence of money lending without a licence was complete as early as in the year 1974. In any event, he contended the offence on the complainant's own showing was committed in the year 1974, and hence the charge-sheet which was issued as late as 30th November, 1975, was barred by limitation under Section 468(2)(b) of the Criminal P.C. The simple answer to this plea of Mr. Chitnis is to be found in Section 469 of the Criminal P.C. Under S. 469 of the Code, the period of limitation to such prosecution does not start when the offence is committed. Under Section 469(1)(b) of Criminal P.C. the period starts in the case where the commission of the offence was not known to the person aggrieved by the offence or to any Police Officer, from the first day on which such offence comes to the knowledge of such person or to any police officer, whichever is earlier. It is therefore not correct to say that merely because the offence of money lending without licence was committed in the year 1974, the period of limitation contemplated by Section 468 of the Cr.P.C. started in that year. There is nothing on record to show that any of the aggrieved persons had knowledge of the fact that the accused was not holding requisite licence under the Money Lenders Act. The offence does not consist of mere money lending. The offence is constituted by the fact that money lending business is carried on without the requisite licence. The act of money lending becomes an offence only on that ground. The knowledge to the person aggrieved must therefore, be not only of the money lending but also of the fact that the accused did not hold the requisite money lending licence. Nothing was brought on record to show that any of the prosecution witnesses was aware of the fact that the accused was committing an offence when the complainant made a complaint in that behalf at the police station. It is not disputed that the charge-sheet is filed by the police within the requisite period of one year from the date of the lodging of the first information report by the complainant at the police station. Nothing is brought on record to show that the police officer who filed the charge-sheet or who investigated the case was aware at any time before the date of the complaint, or even before the date of the charge-sheet for the matter of that, that the accused was not holding requisite money lending licence at any time. In this view of the matter the terminus a quo for the prosecution would not in any event be before the date of the complaint by the complainant at the police station. The charge-sheet filed within one year from the date of the said complaint, therefore, must be held to be perfectly with limitation prescribed by Section 468 of the Criminal P.C.
Mr. Chitnis further contended that in any event even assuming that the complainant, P.W. 1, did not have the knowledge of the fact that the accused did not hold a requisite money lending licence at the relevant time still there was nothing in the evidence of the police officer to show that he did not have any such knowledge. Mr. Chitnis contended that the burden of proving that the Police Officer did not have any such knowledge before the date of the charge-sheet lay upon the officer himself, and since he has not uttered even one word in his evidence as to when he got the knowledge about the said relevant fact, it must be presumed that he must be all the time having knowledge of the said fact. I do not think that this line of reasoning can be accepted. The onus of proving the bar of limitation in the instant case is upon the accused. If according to the accused the Police Officer concerned was aware of the fact that the accused did not hold the requisite licence and if the accused wanted to satisfy the Court that the police officer was aware of this position long before the date of the filing of the charge-sheet and in fact even before the date of the complaint filed by the complainant, it was for the accused to produce sufficient material in that behalf before the Court either by way of substantive evidence or by way of cross-examination of the officer concerned on those lines. Nothing is done by the accused to establish before the Court the fact that the police officer was aware of this relevant fact namely that the accused did not hold the requisite money lending licence at any time before the date of the complaint filed by the complainant P.W. 1. From the record it appears that it was only when the complainant filed the first information report with the police that the police officer became aware of the fact that the accused was dealing in money lending business. It would be reasonable to presume that only thereafter the police officer started making the investigation to verify whether the accused was holding the requisite money lending licence or not. It is, therefore, fully inconceivable that the police officer would get information regarding the offence committed by the accused at any time before the date of the complaint filed by the complainant P.W. 1. The point raised by Mr. Chitnis, relating to the bar of limitation must, therefore, be rejected.
7. The second contention urged by Mr. Chitnis however has got to be upheld. He contended that the accused was not charged with an offence of not holding any licence whatsoever. It was not the prosecution case that the accused did not hold any licence at any place for carrying on money lending business. The offence with which the accused is charged has been already set out above. In terms the allegation is regarding the contravention of Section 5 of the Money Lenders Act. The said Section 5 r/w. Section 34 makes it an offence for any person carrying on money lending business except in the area for which he has been granted licence to carry on the business and except in accordance with the terms and conditions of such licence. It therefore follows that Section 5 postulates that the money lender should hold a licence for money lending business for a particular area. What is made an offence by the said section is the act on the part of the money lender to carry on the business of money lending in an area outside the area for which he is granted a licence. The section also enjoins that the business should be carried on in strict compliance with the terms and conditions of the licence and the failure in that behalf is made an offence by the said section. It may be mentioned here that the prosecution in the instant case did not relate to any breach of terms and conditions of any licence. The breach complained of in the instant case consists of the fact that the money lending business is carried on by the money lender in the area for which he was not given a licence. In the instant case it is the specific case of the prosecution that while carrying on the money lending business at Ambet, the accused had contravened the provisions of said Section 5. It therefore follows that even according to the prosecution if the accused had done money lending business in the area for which licence was granted to the accused, no offence under Section 5 read with Section 34 could be brought home against the accused. It is, therefore, necessary for the prosecution to show that the money lending business was carried by the accused in Ambet for which area he had no licence.
8. Turning then to the question as to what is the evidence led by the prosecution on this point, one cannot but find that there is not as much as a whisper by any of the prosecution witnesses that money lending business was carried on by the accused at Ambet. No doubt the prosecution witnesses also stated that they pledged their articles with the accused and the accused advanced loans to them on the security of the said ornaments but no witness has stated that money lending transaction was done by the accused at Ambet. The witnesses even stated that the accused was carrying on cloth business at Ambet. But none of them has come forth to state that money lending business was carried on by the accused at Ambet. Admittedly the accused resides in Mahad and has also some business at Mahad. In these circumstances it is not possible to hold that there existed any evidence against the accused regarding any money lending business done by him at Ambet without any licence for that area.
9. It is thus clear that the very basis for conviction of the accused is wanting in the instant case. The order of conviction and sentence passed by the learned Magistrate and confirmed by the learned Addl. Sessions Judge has got, therefore, to be set aside and accused is entitled to an order of acquittal at the hands of this Court.
10. It is, however, made clear that though the order of conviction and sentence passed by the Courts below is being set aside, the order passed by the learned trial Magistrate relation to the disposal of the Muddamal property which order has been implicitly confirmed by the learned Addl. Sessions Judge, shall stand unaffected in view of the undertaking given by the accused in the affidavit filed by him in this Court which has been also taken on record.
11. The rule earlier issued is therefore made absolute. The order of conviction and sentence passed by the learn-Magistrate and confirmed by the learned Addl. Sessions Judge, is hereby set aside, and the accused is acquitted of the offence with which he is charged.
The bail bond stands cancelled.
The fine paid, if any, shall be refunded to the accused.
As desired by the accused in his affidavit the amount of Rs. 1,000/- deposited by the accused in this Court shall be paid to the prosecution witness No. 4, Abdulla Mohamed Sale Zatam. The office shall issue a notice to prosecution witness No. 4, Abdulla Mohamed Sale Zatam, to withdraw the amount of Rupees 1,000/- deposited by the accused in this Court. The record of this case shall be immediately sent down to the Court of the learned Magistrate and the learned Magistrate shall immediately thereafter sent a notice to the witnesses concerned and shall carry out the disposal of Muddamal property as per his own order dt. 17-2-1978.
12. Order accordingly.