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2009 (11) TMI 1011 - HC - Indian LawsDishonour of Cheque - assessee is into money lending business without licence - discharge of legally enforceable debt or not? - whether carrying on money lending business without licence debars a person from doing money lending and recovering the amount through court? - HELD THAT:- It is not the case of present applicant complainant 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. 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. Section 32B(b) of the said Act, which lays down that whoever carries on the business of money lending 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 description which may extend to one year or with fine which may extend to rupees one thousand and five hundred or with both and for the second or subsequent offence, in addition to, or in lieu of, the penalty specified in Clause (i) with imprisonment 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. Hence, this is not a case wherein application for leave to file appeal can be granted. Hence, application rejected.
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