Section 19 of the 1939 Act prescribes maximum punishment for one year or with fine which may extend to one thousand rupees or with both. Section 468 of the Cr.P.C. which deals with bar for taking cognizance after lapse of the period of limitation indicates that the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year. Section 469 of the Cr.P.C. deals with commencement of the period of limitation. In this case, according to the prosecution case, the gold was pledged fourteen years prior to the date of giving of evidence of P.W. 1 and four years thereafter, when he gave back the double the quantity of paddy, in spite of that the petitioner allegedly did not return back the gold ornaments. The Block Development Officer vide letter No. 4329 dated 21.10.1990 has informed about the detection of the cases to the Sub Collector, Dharmgarh. In spite of that, the case was registered only on 25.12.1991 and cognizance was taken on 11.03.1992. Therefore, in view of the punishment prescribed for the offence under section 19 of the 1939 Act, I am of the view that the case was instituted after the lapse of the period of limitation. The contentions raised in the Courts below regarding this aspect was turned down on the ground that section 473 Cr.P.C. empowers the Court for making extension of the limitation period.
Law is well settled that while taking cognizance of an offence for which period of limitation has been fixed in the Cr.P.C., after the expiry of the period of limitation, the Magistrate has to pass a speaking order assigning the reasons for exercise of the discretion as required under section 473 of the Cr.P.C. On perusal of the order of cognizance dated 11.03.1992, it appears that the Magistrate has neither kept such provision in view nor passed any speaking order assigning the reason for exercise of the discretion. He has simply taken the cognizance which read as follows:-
"11.03.1992-Complainant present. Accused is also present. Cognizance u/s. 19 of the O.M.L. Act is taken. Complainant is to adduce evidence. Put up on 29.04.1992."
Therefore, the order of taking cognizance as well as the entire proceeding instituted after the lapse of the period of limitation without passing a speaking order assigning the reasons for exercise of the discretion as required under section 473 of the Cr.P.C. for condoning the delay is vitiated in the eye of law.
IN THE HIGH COURT OF ORISSA AT CUTTACK
Criminal Revision No. 215 of 2001
Decided On: 01.12.2016
Suryanarayan Behera
Vs.
Ganesh Majhi and Ors.
Hon'ble Judges/Coram:
S.K. Sahoo, J.
1. The petitioner Suryanarayan Behera faced prosecution under section 19 of the Orissa Money Lenders' Act, 1939 (hereinafter the '1939 Act') in the Court of learned Sub-Divisional Magistrate, Dharamgarh in O.M.L. Case No. 1 of 1991 on the ground that he was carrying on business as a money lender without being registered as such.
The learned Sub-Divisional Magistrate, Dharamgarh vide order dated 18.12.1993 convicted the petitioner under section 19 of the 1939 Act and sentenced him to undergo simple imprisonment for one month and to pay a fine of Rs. 1,000/- (Rupees one thousand), in default of payment of fine, to undergo further simple imprisonment for one month.
The petitioner preferred an appeal before the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna in Criminal Appeal No. 02 of 1994. Learned Appellate Court vide impugned judgment and order dated 20.02.2001 dismissed the appeal and confirmed the impugned order dated 18.12.1993 passed by the learned Trial Court.
2. It appears that on the basis of requisition received from the Block Development Officer, Jaipatna dated 21.11.1990, the learned Sub-Divisional Magistrate, Dharamgarh registered the case under section 19 of the 1939 Act on 25.12.1991 and took cognizance of the offence under section 19 of the said Act on 11.03.1992.
It is the prosecution case that the petitioner was a money-lender and four persons of village Podaguda pledged gold ornaments with the petitioner and in exchange of the same, the petitioner gave them paddy. It is the further case of the prosecution that even though the loanees returned back twice the quantity of paddy which they had taken from the petitioner but the petitioner did not give back the gold ornaments to the loanees and every time the petitioner used to take time for returning gold ornaments within a month or two.
3. The defence plea of the petitioner is that he was not doing any money lending business nor he has received any gold from any person and he was not even registered as a money lender and that a false case has been foisted against him.
4. From the side of the prosecution, three witnesses were examined.
P.W. 1 is Ganesh Majhi who is one of the complainant in the case. P.W. 2 is a Duryodhan Gouda is a labourer and P.W. 3 Bhabani Sankar Pujahari was also a complainant.
From the side of the petitioner, two witnesses were examined as defence witnesses. D.W. 1 Debananda Banua and D.W. 2 Rameswar Bisi Majhi stated that the petitioner was not doing any money lending business.
5. The learned Sub-Divisional Magistrate, Dharamgarh formulated four points for determination, which are as follows:-
(i) Whether the petitioner had advanced a loan to the debtors against which he kept the complainants' gold as mortgage?(ii) Whether he was registered as money lender under the 1939 Act?(iii) Whether he has charged exorbitant rate of interest?(iv) Whether he has violated section 19 of the 1939 Act?
6. After considering the evidence on record, the learned Magistrate answered as follows:-
(i) It is well proved that the petitioner has advanced loan because a written acknowledgement has been given and the testimony of the prosecution witness well proves it.(ii) He is not a registered money-lender as he is not able to produce the licence granted by the authority competent.(iii) He has also charged exorbitant rate of interest as seen from the interest calculation sheet allegedly in the hand of the petitioner.(iv) The last and the most vital point is that the petitioner has not returned the pledged ornaments. The pledge of the gold is well proved, but the onus lies on the petitioner to prove that he has returned the gold but the petitioner could not prove it.
The petitioner preferred an appeal before the learned Sessions Judge, Kalahandi-Nuapada, Bhawanipatna and the learned Appellate Court upheld the findings of the learned Trial Court and held that the petitioner has been rightly found guilty under section 19 of the 1939 Act.
7. Mr. Birendra Kumar Nayak, learned counsel for the petitioner contended that there is no clinching evidence that the petitioner was doing business of money lending and no documentary evidence has also been proved to that effect and merely basing on the statements of two witnesses that they had pledged gold ornaments with the petitioner and in lieu of that they received paddy, is not sufficient to arrive at a conclusion that the petitioner is doing money lending business. Learned counsel for the petitioner further contended that the institution of the case is barred by limitation and since the learned Magistrate has not condoned the delay, the prosecution of the petitioner under section 19 of the 1939 Act, is illegal and vitiated in the eye of law.
8. None appears on behalf of the opposite parties.
9. Considering the submissions made by the learned counsel for the petitioner and on going through the evidence on record, it is found that P.W. 1 Ganesh Majhi in his examination has stated that he had kept approximately five tolas of gold on pledge with the petitioner in exchange of loan of five pustamas and two puttis of paddy. He further stated that after four years, he returned ten pustamas and two puttis of paddy to the petitioner but the petitioner did not return back the pledged gold.
P.W. 1 has specifically stated that he pledged gold with the petitioner fourteen years prior to the date of his deposition (which is dated 6.01.1993). Thus as per the evidence of P.W. 1, even though prior to ten years of the date of deposition, he returned back the paddy but the petitioner did not return the pledged gold. He further stated that the petitioner was giving him assurance to return the ornaments within a month or two. P.W. 1 has further stated that at the time of pledge, the details were written on a plain paper by the petitioner but that document has not been proved by the prosecution. P.W. 1 has further stated that he did not report the matter to the police but he reported the fact to Panchayat. P.W. 1 stated that he has not submitted any documents to that effect.
P.W. 2 Duryodhan Goud who was a labourer in the house of the elder brother of the petitioner though stated that the petitioner was a money lender and keeping gold on pledge from the people of the village but in the cross-examination, he has stated that he cannot say the names of other people whose gold had been kept as pledge with the petitioner. He further stated that he cannot say how much gold was kept as pledge from individual members. Though he stated that at the time of pledge, the details were written and specimens of the same were also kept with the complainants with signatures but no such documents have been proved in the case.
P.W. 3 Bhawani Sankar Pujhari is another complainant who has also stated that he gave five tolas of gold on pledge and got paddy from the petitioner and after four years, though he returned twice the quantity of paddy but the petitioner did not return back the gold. P.W. 3 has stated that he gave the gold in the year 1981 and he has not reported the matter to the police. He also stated that there was a written paper document with him regarding the transaction but no such document has been produced.
In view of the above evidence adduced by the prosecution, I am of the view that the prosecution has failed to establish by cogent and convincing evidence that the petitioner was carrying on money lending business. The oral evidence adduced is discrepant in nature. There is no clinching documentary evidence in support of the prosecution case in order to attract the ingredients of the offence under section 19 of the 1939 Act which, inter alia, requires that the money-lender must be carrying on business without being registered as a money lender. The petitioner has not disputed that he was not a registered money lender but he has denied the prosecution case that he was carrying any money lending business. The word "business" denotes a continuous and systematic exercise of activity with essential characteristic of profit motive. It is a transaction or a course of dealings between two persons not for sport or pleasure. One or two stray incidents of advancing loan to the needy persons cannot be termed as "business". Therefore, in absence of any specific materials that the petitioner was continuously lending money to different persons with an object of profit making, the ingredients of the offence under section 19 of the 1939 Act are not attracted.
10. Section 19 of the 1939 Act prescribes maximum punishment for one year or with fine which may extend to one thousand rupees or with both. Section 468 of the Cr.P.C. which deals with bar for taking cognizance after lapse of the period of limitation indicates that the period of limitation shall be one year, if the offence is punishable with imprisonment for a term not exceeding one year. Section 469 of the Cr.P.C. deals with commencement of the period of limitation. In this case, according to the prosecution case, the gold was pledged fourteen years prior to the date of giving of evidence of P.W. 1 and four years thereafter, when he gave back the double the quantity of paddy, in spite of that the petitioner allegedly did not return back the gold ornaments. The Block Development Officer vide letter No. 4329 dated 21.10.1990 has informed about the detection of the cases to the Sub Collector, Dharmgarh. In spite of that, the case was registered only on 25.12.1991 and cognizance was taken on 11.03.1992. Therefore, in view of the punishment prescribed for the offence under section 19 of the 1939 Act, I am of the view that the case was instituted after the lapse of the period of limitation. The contentions raised in the Courts below regarding this aspect was turned down on the ground that section 473 Cr.P.C. empowers the Court for making extension of the limitation period.
Law is well settled that while taking cognizance of an offence for which period of limitation has been fixed in the Cr.P.C., after the expiry of the period of limitation, the Magistrate has to pass a speaking order assigning the reasons for exercise of the discretion as required under section 473 of the Cr.P.C. On perusal of the order of cognizance dated 11.03.1992, it appears that the Magistrate has neither kept such provision in view nor passed any speaking order assigning the reason for exercise of the discretion. He has simply taken the cognizance which read as follows:-
"11.03.1992-Complainant present. Accused is also present. Cognizance u/s. 19 of the O.M.L. Act is taken. Complainant is to adduce evidence. Put up on 29.04.1992."
Therefore, the order of taking cognizance as well as the entire proceeding instituted after the lapse of the period of limitation without passing a speaking order assigning the reasons for exercise of the discretion as required under section 473 of the Cr.P.C. for condoning the delay is vitiated in the eye of law.
11. In view of the aforesaid discussion, I am of the view that the impugned judgment and order of conviction of the petitioner under section 19 of the 1939 Act is not sustainable in the eye of law and is hereby set aside.
Accordingly, the Criminal revision petition is allowed.
The petitioner is on bail by virtue of the order of this Court. He is discharged from the liability of his bail bond. The personal bond and surety bond stand cancelled.
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