Case Note & Summary
The petitioners, nine family members, filed a Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging the order of the Metropolitan Magistrate, 14th Court, Girgaum, Bombay, dated 1st September 2006, rejecting their application for discharge in Case No. 174-S of 1994. The case arose from a complaint lodged by PSI Balasaheb Shinde on 29th April 1993 at Gamdevi Police Station, alleging that the accused had committed an offence punishable under Section 5 of the Bombay Money-Lenders Act, 1946. It was alleged that bills of exchange amounting to Rs. 6,25,000/- were seized from accused No.1 after a search of his house, and that the accused had issued these bills in respect of a loan given to one Sohel Yakub Khandwani, who was engaged in construction business. The petitioners argued that the allegations did not make out a prima facie case under Section 5 of the Act, as there was no evidence that they were carrying on the business of money-lending. The State opposed the revision, contending that the seizure of bills of exchange and the loan transaction were sufficient to frame charges. The court analyzed the essential ingredients of Section 5 of the Bombay Money-Lenders Act, 1946, and held that to constitute an offence, the prosecution must prove that the accused was carrying on the business of money-lending, i.e., habitual lending of money with interest. A single or isolated loan transaction does not attract the provision. The court found that the allegations only referred to a single loan transaction and there was no material to show that the petitioners were engaged in money-lending as a business. Consequently, the court allowed the revision application, set aside the impugned order, and discharged the petitioners from the case.
Headnote
A) Criminal Procedure - Discharge - Section 245 CrPC - Standard for discharge - The court must consider whether a prima facie case exists; if the evidence does not disclose the essential ingredients of the offence, the accused is entitled to discharge. (Paras 5-7) B) Money-Lending - Offence under Section 5 Bombay Money-Lenders Act, 1946 - Essential ingredients - To constitute an offence under Section 5, the prosecution must prove that the accused was carrying on the business of money-lending, i.e., habitual lending of money with interest. A single or isolated loan transaction does not attract the provision. (Paras 5-7) C) Evidence - Bills of Exchange - Seizure of bills of exchange - Mere possession of bills of exchange does not prove money-lending business; the prosecution must show that the accused lent money as a business. (Paras 5-7)
Issue of Consideration
Whether the petitioners/accused were entitled to be discharged under Section 245 of the Code of Criminal Procedure, 1973, on the ground that the allegations did not make out a prima facie case under Section 5 of the Bombay Money-Lenders Act, 1946.
Final Decision
The court allowed the Criminal Revision Application, set aside the impugned order of the Metropolitan Magistrate, and discharged the petitioners from Case No. 174-S of 1994.
Law Points
- Discharge under Section 245 CrPC
- Essential ingredients of Section 5 Bombay Money-Lenders Act
- 1946
- Requirement of habitual money-lending
- Prima facie case for framing charge
