Summon u/s 138

ORAL JUDGMENT

1. This is an application for leave to file

appeal against the judgment and order of acquittal

passed by the learned Judicial Magistrate, First

Class (1st Court), Ahmednagar in S.T.C. No.3528 of

2005 decided on 11.12.2008.

2. Briefly stated, in or about SeptemberOctober

2004, present Respondent was in need of

financial help and, therefore, he requested the

present applicant to give him amount of Rs.4.00

lakhs and assured to repay the same within one or

two months. The applicant paid the amount.

However, according to the applicant, the

respondent failed to repay the amount and

therefore demand was raised by applicant pursuant

to which the present respondent issued cheque

dated 24.5.2005 drawn on Post Office Savings Bank,

Ahmednagar Branch, for Rs.2.00 lakhs. On

3

25.5.2005, the applicant deposited that cheque in

the said bank for encashment, but the same was

dishonoured on the ground of insufficiency of

funds.

3. Thereafter on 4.6.21005, the applicant

issued notice to the Respondent calling upon him

to pay the amount within fifteen days and since

the amount was not paid, the complaint under

Section 138 of the Negotiable Instruments Act was

filed. The trial court took cognizance of the

complaint and issued notice to the present

Respondent who then appeared in the matter. The

trial was conducted and ultimately the order of

acquittal was passed which is sought to be

challenged by seeking leave of this court to file

appeal.

4. Heard Shri P.S.Pawar, learned Advocate

for the applicant and Shri Amol N. Kakade Advocate

for the respective parties. Both have taken me

through various documents and the judgment of the

trial court. The trial court has taken into

4

consideration the admission given by the applicant

in his cross examination that he had filed

criminal cases for commission of offence

punishable under Section 138 of the Negotiable

Instruments Act, against the persons mentioned in

paragraph 20 of the judgment. Those persons are

(1) Ananda Gahile, (2) Vijay Kale, (3), Rajendra

Dake, (4) Vinay Khisti, (5) Shivaji Chaure, (6)

Santosh Malwade, (7) Akrur Kaspate, (8) Kanhayalal

Rathod, (9) Sachin Joshi and (10) Prakash late.

The applicant denied that the cases involved the

amounts total of which is more than Rs.80.00

lakhs.

5. It is argued on behalf of the Respondent

that the transactions with so many persons clearly

indicate that the transaction with the Respondent

was not of a hand loan transaction, but it was a

money lending transaction and the

complainant/applicant is doing money lending

business without licence.

5

6. In paragraph 16 of the judgment, the

learned trial court referred to evidence of DW1

Premlata Balasaheb Parkhe at Exh.50 who is an

employee of the Incometax

Department. She

produced incometax

returns of the present

applicant at Exhibits 52 and 53 and in paragraph

16 of the judgment, the trial court noted that the

total income of the applicant in the year 200203

was Rs.60,000/= and for the year 200304,

it was

Rs.57,989/= and it is amply clear that the person

having such income could not have lent amount of

Rs.4.00 lakhs in lumpsum

to the respondentaccused.

There is no other documentary evidence

led by the complainant to prove that he actually

lent Rs.4.00 lakhs. It is the case of present

Respondent that he borrowed amounts of Rs.10,000/=

and Rs.20,000/= from the applicant and repaid Rs.

50,000/=. However, while giving loan, the

applicantcomplainant

had obtained blank cheques

from the respondent and taking advantage of the

same, the present case is filed.

6

7. The trial court has come to the

conclusion that the complainant could not have an

amount of Rs.4.00 lakhs in lump sum at a time and

there is nothing on record that he got some

windfall after March 2004 so that he could give

loan of Rs.4.00 lakhs at a time to the accusedrespondent

in SeptemberOctober

2004. Moreover, it

appears from the admission of the complainant in

his cross examination referred to above that he

is doing money lending business. He admitted to

have money transactions with ten persons named

which ultimately resulted in their prosecution for

offence punishable under Section 138 of the

Negotiable Instruments Act.

8. Shri Amol Kakade, learned Counsel for

the Respondent has filed affidavitinreply

and

produced xerox copy of criminal M.A. No.16 of 2009

filed by present applicant, whereby he has sought

transfer of as many as 60 cases from one court to

another. There is no denial of this document.

Averments in affidavit in reply and said document

clearly shows that the applicant was doing money

7

lending business and therefore, inference drawn

by the trial court cannot be said to be

unreasonable, but it is proper inference based on

admission before it.

09. Here, I may refer to the provisions of

the Bombay MoneyLenders

Act, 1946. Section 5 of

the said Act lays down that no money lender shall

carry on business of money lending except in the

area for which he has been granted a licence and

except in accordance with the terms and conditions

of such licence. It is not the case of present

applicantcomplainant

that he has any money

lending licence. Section 10 of the Act lays down

that no court shall pass a decree in favour of a

moneylender

in any suit to which said Act applies

unless the court is satisfied that at the time

when the loan or any part thereof, to which the

suit relates was advanced, the moneylender

held a

valid licence, and if the court is satisfied that

the moneylender

did not hold a valid licence, it

shall dismiss the suit. In other words, carrying

on money lending business without licence debars a

8

person from doing money lending and recovering the

amount through court. As per explanation to

Section 138 of the Negotiable Instruments Act

"debt or other liability"means a legally

enforceable debt or other liability. So, a loan

advanced by a money lender who is doing business

of money lending without licence is not a debt or

other liability and provisions of Section 138 of

the Act will not apply to such transaction. In the

light of above, it cannot be said that in the

present case, that the cheque issued by the

Respondent in favour of the applicant was for the

liability enforceable in law.

10. I may also refer to Section 32B(b) of the

said Act,which lays down that whoever carries on

the business of moneylending

at any place without

holding a valid licence authorising him to carry

on such business at such place, shall, on

conviction, be punished for the first offence with

imprisonment of either descripttion which may

extend to one year or with fine which may extend

to rupees one thousand and five hundred or with

9

both and for the second or subsequent offence, in

addition to, or in lieu of, the penalty specified

in clause (i) with imprsonment which shall not be

less than two years, where such person is not a

company, and with fine which shall not be less

than rupees five thousand, where such person is a

company.

11. In light of facts and circumstances as

above, this is not a case wherein application for

leave to file appeal can be granted. Hence,

application rejected.