Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2020 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (2) TMI 1706 - HC - Indian LawsDishonour of Cheque - main reason for dismissal of the complaint was that the complainant is a money lender and the alleged advance stated to have been made by him to the accused could not be considered to be out of the purview of the money lending business of the complainant - HELD THAT:- In SAMARENDRA NATH DAS VERSUS SUPRIYO MAITRA [2005 (12) TMI 607 - CALCUTTA HIGH COURT], a Single Bench of Calcutta High Court had observed that when in a complaint under Sections 138 and 139 of the Negotiable Instruments Act, 1881, an application for discharge of accused was moved for alleged violation of provisions of 138 of the Act, therein it was observed that the alleged violation of provisions of Income Tax Act and Contract Act and Money Lenders Act does not bar continuation of proceedings under Section 138 of the said Act. In V. SATYANARAYANA VERSUS SANDEEP ENTERPRISES [2004 (9) TMI 675 - KARNATAKA HIGH COURT] by a Division Bench of Karnataka High Court while dealing with interpretation of money lender, it was observed that money lending must be carrying on as profession and if the money lending was not with profit motive or not carried on as profession, he or she does not become a money lender; a stray instance of lending money does not show carrying on the business of money lending as profession or with profit motive. The trial Court had dismissed the complaint mainly for the reason that the complainant was a money lender, lending money without licence. The Magistrate had not gone into the merits of the case as to whether the necessary ingredients of Section 138 of the Act were established or not. Therefore, the impugned judgment dismissing the complaint for the reason of complainant having been found to be a professional money lender practicing money lending without licence is not sustainable, in view of the judgments referred to learned counsel for the appellant/complainant. The judgment is accordingly set aside by way of acceptance of the appeal and the matter is remanded to learned Magistrate for giving a fresh decision on merits after hearing learned counsel for the parties.
|