TMI Blog2015 (12) TMI 1895X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the West Bengal Money Lenders Act, 1940? - HELD THAT:- The money lending without licence is not totally barred or prohibited by the said Act. It is one regulatory Act and it regulates the business of money lending. Section 8 of the said Act says that after certain notification in the official gazette no money lender shall carry on the business of money lending unless he holds an effective licence. But the provision is not mandatory if one reads Section 13 of the said Act then he must say in the same tone with me that even if a money lender fail to file a money lending licence before the court while instituting the suit for recovery of a loan then filing of such suit is not barred. In the present case before this court P.W.1 claimed that he had money lending licence but could not produce the same. This is not a civil litigation and as such the rigors of Section 13 of the Money Lenders Act cannot be made applicable in this case. Thus, lending of money even without licence has not been specifically barred by the West Bengal Money Lenders Act and as such the payment made by the complainant to the respondent was perfectly valid by the said Act of 1940. If that be so the argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant was informed vide Bank Memo dated 11th April, 2006 that the cheque was dishonoured with the remark insufficient fund . Thereafter, demand notice was issued by the complainant through his advocate by registered post with A/D asking him to repay the loan amount within the stipulated time. The said notice was received on 26th April, 2006 by the wife of the accused. But in spite of its receipt the accused did not pay any amount and as such the complaint was filed. The accused appeared in the case before the learned Trial Court when he was examined under Section 251 of the Cr. P.C. in respect of the charge under Section 138 of the N.I. Act to which the accused pleaded not guilty and claimed to be tried. Before the Trial Court on behalf of the complainant the complainant examined himself as P.W.1 and on behalf of the defence the defendant did not face the dock. The defence made out a case at the time of trial when he was examined under Section 313 of the Cr.P.C. and when P.W.1 being examined that he did not take Rs. 40,000/- from the complainant. But in fact he took Rs. 5000/- and for the said amount he was paying interest at the rate of 10% per annum and when he went to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court was pleased to dismiss that CRR. 3. One unreported decision of this Court in C.R.R. No. 1897 of 2015 (Gobinda Chandra Mondal v. Sajal Guha) wherein this Court did not dispose of the issue considering the fact that judgment before the Trial Court was to be delivered only on 17th October of 2015 and this Court I reiterate deliver the judgment on 13th September, 2015. 4. One unreported decision of this Court in C.R.R. No. 3002 of 2011 (Sri Subrata Sarkar and anr. v. Sajal Guha) wherein it was disposed of by this Court on 28th January, 2014 delivered by me wherein also it was not decided by this Court as to whether Section 138 of N.I. Act will not be applicable in a case where the money-lenders will come into play. In that C.R.R. it was only decided as regards the quantum of the compensation. 6. It was submitted by Mr. Jyotirmoy Adhikari, learned Advocate appearing on behalf of the respondent by taking me to Section 13 of the Bengal Money-Lenders Act, 1940 that no relief can be claimed by the present appellant in view of the bar under Section 13 of the said Act of 1940. He also took me to the evidence of P.W.1 at page 6 and 7 of the paper book which runs thus: At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not disqualified for holding a licence. 12. The learned trial court acquitted the accused on the ground that the complainant was a money lender and he cannot get the advantage of Section 138 of the N.I. Act. There is a presumption in favour of the complainant under Section 139 of the N.I. Act but that presumption is restricted to the extent of drawing the cheque. The complainant will have to prove that the cheque was issued in discharge of existing liability. 13. Thus, this Court will have to consider whether (1) The cheque was issued in discharge of existing liability. (2) Whether it remained unpaid. (3) Whether the case is barred under the West Bengal Money Lenders Act, 1940. 14. The evidence of P.W.1 and documentary evidence that is their Chukti Patra (Ext. 1, though there is no such mark on the said 'Chukti Patra' but in evidence it was marked as Ext. 1). Unfortunately, the Affidavit in Chief was marked as Ext. 1, and it was a mistake on the part of the learned trial court. This 'Chukti Patra' will prove that the cheque was issued in discharge of existing liability. The accused while answering the questions under Section 313 Cr.P.C. co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay certain penalty and if such penalty is paid the suit instituted for recovery of money cannot be dismissed on the ground that the plaintiff had no money lending licence. 19. In the present case before this court P.W.1 claimed that he had money lending licence but could not produce the same. This is not a civil litigation and as such the rigors of Section 13 of the Money Lenders Act cannot be made applicable in this case. Thus, lending of money even without licence has not been specifically barred by the West Bengal Money Lenders Act and as such the payment made by the complainant to the respondent was perfectly valid by the said Act of 1940. If that be so the argument of the respondent that the complainant appellant had no legally enforceable debt as against the respondent cannot have any leg to stand on. The decision of the learned trial court on this point that there was no legally enforceable debt is not tenable and this Court respectfully differs with that view. 20. In this connection this Court likes to rely upon a Single Bench decision of this Court (unreported) passed in CRA No. 936 of 2013 (Jupiter Brokerage Services Ltd. v. Ektara Exports Pvt. Ltd. Ors.) deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
