(1) The petitioners, the proprietor and the manager, were convicted for an offence under S. 16(7) of the Madras Pawnbrokers Act, and sentenced to pay a fine of Rs. 15 by the Sub-Magistrate, Tanjore. On appeal, the conviction and sentence were confirmed by the Sub-divisional Magistrate, Tanjore.
(2) Mr. G. Gopalswami, learned counsel for the petitioners, submitted that the facts did not disclose an offence under S. 16(7) of the Pawnbrokers Act. P.W. 1 pledged a jewel with the accused for Rs. 10 on 9-1-1961. the jewel was redeemed by one Murugayya on 22-6-1961. P.W. 1 did not take any steps within a period of 1 year and 7 days as required under the Act for redeeming jewels. He attempted to redeem the jewel only on 12-11-1962, when it was informed that Murugayya had redeemed the jewel on 22-6-1961. Learned counsel submitted that under s. 11(1) of the Act, the pledge was redeemable within one year from the date of pawning, exclusive of that day and that there should be added a period of 7 days as grace. Section 16(7) punishes a person who sells or otherwise disposes of any pledge pawned with him except at such time and in such manner as is authorised by or under the Act. The Act does not authorise a pawnbroker to sell the articles pawned within a year of the date of the pledge. Therefore, when the petitioners disposed of the property by handing it over to Murugayya on 22-6-1961, it would be disposing of the pledge in a manner not authorised under the Act. Learned counsel submitted that as P.W. 1 did not take any steps to redeem the jewel within one year and 7 days of the date of pledge, the pawnbroker became the owner of the property and, therefore, subsequent to 16-1-1962. P.W. 1 was not entitled to question the pawnbroker about the articles pledged. This may be so. But when the pawnbroker disposed of the property by handing it over to Murugayya on 22-6-1961 he was acting in contravention of S. 16.
(3) Learned counsel also submitted that the pawnbroker in this case was a firm under the name of P. K. K. Rathinaswami Chettiar and sons, and that the firm alone ought to have been prosecuted. It is unnecessary in this case to consider the question as to whether the person carrying on the business of a pawnbroker can be prosecuted in addition the firm. In this case, there is no evidence on record to show that the business was carried on in the name of a firm or a partnership.
(4) It was contended by Mr. Gopalaswami, the learned counsel for the petitioners that, under S.19(7) of the Act, only a pawnbroker who sells or otherwise disposes of any pledge pawned with him except in the manner authorised by the Act, would be punishable. He submitted that 'pawnbroker' as defined in S. 2(6) would mean a person who carries on the business of taking goods and chattels in pawn for a loan. The first petitioner is undoubtedly the proprietor and has been carrying on business, but the second petitioner was only the manager, and the questions whether the manager can be called a person carrying on the business. Stroud's Judicial dictionary, Vol. 1, page 407, would define 'carry on business' as meaning, primarily, to carry on one's own business; therefore, a salaried clerk does not carry on business at the office of his employer. There is no authority for the proposition that the manager of a pawnbroker can be said to carry on business, so as to come within the definition of 'pawnbroker'. Under S. 16(7) of the act it is only the pawnbroker that is made punishable.
In the various Acts, every person that commits the act, or omits to do the act, is made punishable, such as, S. 7 of the Food Adulteration Act (Act 37 of 1954) provides that 'no person shall himself or by any person on his behalf manufacture for sale.......'. If any person does any of the acts specified in S. 16, he is punishable under that Act. In the Madras Money Lenders Act he is punishable under that Act. In the Madras Money Lenders Act XXVI of 1957 the wording of S. 18 is 'Whoever contravenes any of the provisions of this Act or of any rule....etc., shall be punished'. But S. 16(7) of the Pawnbrokers Act punishes only the pawnbrokers. No person who does not come within the definition of the word 'pawnbroker' can be punished under that section. The second petitioner is only the manager. He is not a pawnbroker and, therefore, he cannot be punished under S. 16(7) of the Act. As the second petitioner was not charged with an offence under S. 18 it is unnecessary to consider the question whether he would be guilty under the section.
(5) The conviction and sentence passed on the first petitioner are confirmed. But the conviction and sentence passed on the second petitioner are set aside. Fine, if paid, will be refunded to him.
(6) Order accordingly.