TMI Blog2016 (12) TMI 1565X X X X Extracts X X X X X X X X Extracts X X X X ..... t being Criminal Case filed before the Court of the Metropolitan Magistrate, Court No. 20, Ahmedabad is not entertained and the prayer to seek quashing of the same is rejected. Application accordingly stands rejected. Rule is discharged. - CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 10883 of 2008 - - - Dated:- 28-12-2016 - MR. BIREN VAISHNAV, J. FOR THE APPELLANT : MR RUSHABH R SHAH, ADVOCATE FOR THE RESPONDENT : MR RUTVIJ OZA, ADDL PUBLIC PROSECUTOR CAV JUDGMENT 1. This Criminal Miscellaneous Application has been filed by the applicants original accused against whom a criminal case being Criminal Case No. 242 of 2008 has been registered in the Court of the Metropolitan Magistrate, Court No.20, Ahmedabad. 2. The Inspector of Moneylenders has filed such complaint against the accused Manba Finance Ltd, a company registered under the Companies Act, 1956 for breach of provisions of Sections 5, 18, 19, 25 and 32(1) of the Bombay Money Lenders Act, 1946. According to the complainant, the accused company was, therefore, liable for prosecution under Sections 32(2) and 34(a) and 34(b) of the Bombay Money Lenders Act 1946. The learned Metrop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complaint therefore is that, the company being in the business of money lending, which means the business of advancing loans at an interest exceeding a prescribed rate, as is shown from the narrative of individual accounts as instances of loan transactions, gives out loans not to a trader and therefore there is a breach of the provisions of the Act exposing the company to prosecution under the penal provisions of the Act. 3. Shri Rushabh Shah, learned advocate for the applicant has vehemently contended that the loan advanced by the Company is a loan to a trader and therefore the same does not come within the purview of definition of loan as defined under Section 2(9) of the Act in view of the fact it falls within the exception of sub-clause (g) of clause (9) of Section 2 as a loan to a trader. According to Shri Shah, on the reading of the grounds stated in the petition, it is apparent that the loan is advanced to traders who carry out a transport business and therefore the same is not a loan and therefore cannot come as a loan under the purview of the Act and therefore the assumption of jurisdiction by the Inspector is unwarranted and without authority of law. 3.1 Rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as a Finance Company under the Companies Act,1956 is the only other averment as made in the Complaint and the Petition. 4. Shri Rutvij Oza, learned Additional Public Prosecutor, on the other hand, has read the complaint to contend that the averments in the complaint prima-facie make out a case of breach of provisions of the Act. He submitted that the judgement of Sundaram Finance is not applicable and in fact the case is covered by the decision of this Court in the case of Bagmar Finance Limited versus State Of Gujarat reported in 2009(2) GLR 1528 . The case of Sundaram Finance (supra) cited by the applicant is not applicable and in fact it is the case of Bagmar Finance (Supra) that applies. 4.1 According to Shri Oza, even otherwise the case of Shriram Transport (supra) which is based on the decisions of this Court in case of Radhe Estate Developers and Sundaram Finance Limited reported in 2011(2) GLH 584 and 2010(2) GLR 1529 cited by the learned advocate for the applicant are not applicable to the facts of the case as the case on hand is not that of a Non Banking Financial Institution. According to Shri Oza, even the subsequent decision in the case of Sundaram F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act making the Company responsible for the breach of the provisions of the Money Lending Act. 6. Sundaram Finance (supra) rendered in Criminal Miscellaneous Application No.255 of 2001 was a case where the complainants were themselves loanees who were traders in transport business and had sought advances for purchase of trucks for transport business. It was not in dispute that such loans were for the purpose of business. Under such circumstances, the Court held that, in view of Section 2(9)(g) of the Act such transactions were not loans as defined and therefore the Act did not apply. Mr Shah in his submission that the applicant Company also has advanced loans for transport business and therefore covered by this decision is not right to state so. The instances cited by the complainant in the complaint are evidently cases where the loan amount was sanctioned and the recipients thereof had purchased vehicles for self sustainment and for personal use and not as traders as defined under Section 2(18) of the Act. The case on hand therefore is, on the contrary and therefore covered by the decision of this Court rendered in the case of Bagmar Finance (supra) . Paragraph 10 to 14 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Supreme Court in the case of Sundraram Finance Ltd.(supra) , however, the said decision would not be helpful to the petitioners as controversy before the Hon'ble Supreme Court was with respect to definition of sale in Section 2(f) of Hire Purchase, Sale of Goods Act and Travancore Cochin General Sales Tax Act. 12. Now so far as the reliance placed upon decision of this Court rendered in Criminal Misc. Application No. 255 of 2001 is concerned, said judgment will not be applicable to the facts of the present case as admittedly in the said case it was found that complainant had taken financial assistance from the Company and said loan was utilized for transport business. Therefore, on facts considering definition of 'TRADER' learned Single Judge found that 'LOAN' given to such person was not 'LOAN' attracting the provisions of the Act which required license. In the present case, as stated above loan/finance is not for transport business and person who has taken loan cannot be said to be 'TRADER' or 'Contractor'. Therefore, the contention on behalf of the petitioners that the petitioners have not committed any offence and/or are re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under the provisions of the Act which requires license under the Act. Admittedly, in the present case license is not obtained and the petitioners are doing business of money lending attracting provisions of Money lenders Act. Therefore, when the impugned complaint / criminal case has been filed same is not required to be quashed and set aside in exercise of powers under section 482 of the Cr.P.C. 7. The decision in the case of Bagmar Finance (supra) therefore answers the twin contentions against the applicant namely that the loan cannot be said to have been advanced to a trader and that a hire purchase agreement is a loan agreement. Contents of the Agreement produced at Annexure C to the application make it evident that the agreement is a loan agreement. 8. As far the decisions in the case Shriram Transport (supra) and Sundaram Finance Limited vs. State of Gujarat reported in 2012 CJ(Guj) 1095 and Radhe Estate (supra) are concerned, they are in the context of Non Banking Financial Companies registered and holding a license under the Reserve Bank Of India Act. Even from the averments in the application filed, it can be seen that it is not even the case of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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