Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2015 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (12) TMI 1895 - HC - Indian LawsDishonour of Cheque - acquittal of accused - discharge of existing liability or not - case is barred under the West Bengal Money Lenders Act, 1940 or not. Whether cheque was issued in discharge of existing liability? - HELD THAT:- It is a settled law that the holder of a cheque carries with him a presumption that the cheque was rightly issued. It is true that as per the decision of the Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hedge [2008 (1) TMI 827 - SUPREME COURT] it was held that even though the holder of such cheque carries such presumptive value but it is the liability of the complainant to prove that the said cheque was issued in respect of one legally enforceable debt. If the evidence of P.W.1 is scrutinized vis-à-vis the documentary evidence mainly Ext. 1 that is 'Chukti Patra' this Court can very well say that the said cheque was issued in favour of the present appellant in respect of one legally enforceable debt. Whether this case is barred under the provisions 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 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. Thus, this Court is of the view that the learned trial court erred in acquitting the present accused in respect of the charge punishable under Section 138 of the N.I. Act. The impugned order of acquittal passed in C. Case No. 435 of 2006 by the Judicial Magistrate, Baruipur, 24 Parganas (South) is hereby set aside. Appeal disposed off.
|