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Emperor Vs. Jhaverilal Maganlal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 636 of 1949
Judge
Reported in(1949)51BOMLR991
AppellantEmperor
RespondentJhaverilal Maganlal
Excerpt:
.....whether the lender advances money on security which fully covers the loan advanced by..........if we were to interpret the expression 'loan' as he wants us to do, if a money-lender advances money on security which was not sufficient to cover the loan, then to the extent that the loan remained uncovered the loan would fall within the meaning of the expression used in this act. it is difficult to believe that the legislature intended such a curious and anomalous result to ensue from the working of this act. it is right that when the court construes a statute it must try and give a meaning to every expression used by the legislature. but cases are not unknown where the legislature, out of greater caution or out of every desire to eschew any ambiguity, has used expressions which are unnecessary or superfluous, and therefore, in our opinion, it would be violating a more fundamental.....
Judgment:

M.C. Chagla, C.J.

1. The prosecution alleged that the applicant before us carried on the business of a money lender without obtaining a license and without keeping and maintaining the accounts as required by the Bombay Money-lenders' Act XXXI of 1947. The contention of the accused was that he advanced moneys only on security and that he took security which was sufficient to cover the whole of the loan advanced by him to his customers, and the further contention of the accused was that the Money-lenders' Act only applied to cases where unsecured loans were made and not to cases where the loan advanced was a secured loan. The facts in this case are not in dispute, and the only question that arises, and the only question that has been argued, is the true interpretation of Act XXXI of 1947.

2. What we have to decide is, what is the true meaning according to the language used of the expression 'loan' as defined by the Bombay Money-lenders' Act. 'Loan' is defined as an advance at interest by way of credit, whether of money or in kind, and then it sets out what it does not include, with which we are not concerned for the purposes of this application. Mr. Somjee's contention is that the expression 'by way of credit' means that the advance must be only on the personal security of the debtor. If the advance is against a security either moveable or immoveable, then it is not a loan within the meaning of this expression as used in the Act. Mr. Somjee is right to this extent that if the legislature intended that all loans, whether secured or unsecured, should be covered by the expression 'loan,' then it is rather difficult to understand why the legislature used the expression 'by way of credit.' Even without the use of that expression, if 'loan' was defined merely as an advance at interest, it would have covered both a secured and an unsecured loan. But we cannot accept Mr. Somjee's contention that the expression 'by way of credit' is a restrictive expression. In our view, the legislature has used an expression which is superfluous or unnecessary and that expression does not in any way affect the true meaning of loan as is apparent from the language used by the legislature. If the legislature intended to restrict the expression 'loan' only to unsecured loans or to loans in which only the personal credit of the debtor was involved, then the legislature would undoubtedly have used proper language for that purpose. The legislature could have used the expression 'an unsecured loan' or could have stated that loan means an advance only on the personal security of a debtor. But the legislature has used the general expression 'an advance,' and the expression 'by way of credit' is, in our opinion, not restrictive of that general expression. It is perfectly true that the legislature did intend by using the11 expression 'by way of credit' that the loan must be given on the credit of the debtor. But the legislature did not intend and does not so state that the loan must be only on the credit of the debtor. The difficulty in the way of Mr. Somjee is that even when a loan is secured, the personal liability of the borrower is not excluded. When a money-lender advances money and takes security, he advances it, first, on the credit of the debtor, and, secondly, on the security which he gets from his debtor. It is not as if when he advances money on some security he does not look to the debtor at all in the event of the security not being sufficient to satisfy the money advanced. Therefore, once it is conceded (and it must be conceded) that in law in every loan whether secured or unsecured the liability of the debtor must remain and the loan must always be on the credit of the debtor, the expression used by the legislature 'by way of credit' becomes immediately intelligible. If we were to accept Mr. Somjee's contention, it would lead to this extraordinary result, (and Mr. Somjee concedes that that extraordinary result must be given effect to), viz. that in every case the prosecution would have to establish what the value of the security was, because Mr. Somjee does not dispute that even if we were to interpret the expression 'loan' as he wants us to do, if a money-lender advances money on security which was not sufficient to cover the loan, then to the extent that the loan remained uncovered the loan would fall within the meaning of the expression used in this Act. It is difficult to believe that the legislature intended such a curious and anomalous result to ensue from the working of this Act. It is right that when the Court construes a statute it must try and give a meaning to every expression used by the legislature. But cases are not unknown where the legislature, out of greater caution or out of every desire to eschew any ambiguity, has used expressions which are unnecessary or superfluous, and therefore, in our opinion, it would be violating a more fundamental canon of construction to construe an expression which is superfluous or unnecessary as an expression which is restrictive of a more general word used by the legislature in that very definition.

3. Therefore, in our opinion, the expression 'loan' used by the legislature and as defined by Section 2(9) covers a loan which is secured as well as a loan which is unsecured, and it is immaterial whether the lender advances money on security which fully covers the loan advanced by him. On that view of the case, the conviction of the accused must be upheld. Rule discharged.

4. As regards sentence, it is not suggested by the Government Pleader that the accused wanted to defy the law or to act in contravention of the law. As a matter of fact he called upon responsible authorities on several occasions to elucidate the meaning of the expression 'loan' as used in the Money-lenders' Act, and the accused has also fought this case more as a test case than anything else. He wanted an authoritative pronouncement of the Court as to what the true position in law was, and after his prosecution he has completely stopped doing money-lending business. In that view of the case we can only take the view that the offence committed by the accused is a purely technical offence. We, therefore, reduce the sentence of fine from Rs. 100 to a fine of Rs. 10 on each count.


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