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2021 (4) TMI 651 - HC - Indian LawsDishonor of Cheque - acquittal of accused - dishonoured cheque were towards the discharge of a liability or not - legally enforceable debt for attracting presumption, present or not - rebuttal of presumption or not - applicability of Money Lenders Act - HELD THAT:- The evidence on record clearly leads to the conclusion that though the endorsement on the cheque return memo states that the signatory to the account had changed, the real fact borne from the evidence is that concerned cheque was dishonoured as there were “no sufficient funds” in the account nor was any arrangement made to cover the said cheque. Whether the Judgment passed by the learned JMFC contrary to law and resulted in gross miscarriage of justice by acquitting the respondents/accused? - HELD THAT:- It appears that the cheque bears a word “Self” in place of payee's name. The learned trial Judge held that even self cheque would come within the ambit of Section 138 of the NI Act and held that the complainant is the holder in due course. Whether the cheques have been issued for the discharge in whole or in part of any debt or other liability? - HELD THAT:- It is now well settled that the complainant is required to establish the case beyond reasonable doubt whereas the accused can discharge the burden on preponderance of probabilities. This can be done on the basis of cross examination of the witnesses of the complainant and any other material available on the record and it is not necessary for this purpose the accused should enter into the witness box - The question really is about the extent to which such presumption can operate and can the benefit of such presumption be availed then the case set up by the complainant is found to be not substantiated. Application of Money Lenders Act - HELD THAT:- A common proposition emerges that when offence under section 138 is in respect of a company section 141 comes into play. It is a penal provision creating vicarious liability and must be strictly construed. It is therefore, not sufficient to make a bald cursory statement in the complaint that the director (arrayed as an accused)in charge of and responsible to the company for the conduct of the business of the company. The complaint should spell out as to how and in what manner the accused was in charge of or was responsible to the company for the conduct of its business. It is matter of record that on all the 12 cheques the signatories are not the same. On six cheques as shown in the chart are issued under the signature of Fredrick and S. Kumar and six under the signature of Fredrick and Kurien. However, in all the 12 complaints all the three persons were made as respondents/accused. Apart from this there is no specific averments who is the director responsible for the affairs of the accused no.1 company. Thus it transpires that complainant himself is not sure as to who were the directors and responsible person - the acquittals of the respondents herein is perfectly justified. It reveals from the record that accused nos.3, 4,5 and 6 are not the signatories to the cheques in dispute. There are no specific averments against these accused that they are connected or responsible to the affairs of the company. The signatories were already resigned and or authority thereof is withdrawn by the company which is made clear giving reply to the notice inspite of that all the nine respondents are arrayed as accused. So far as application of money-lending Act is concerned, in view of Section 6 of the Goa Money-Lenders Act, 2001, every person who is engaged in business of money lending, should apply for licence to the Registrar of money-lending before the prescribed date and in prescribed form annually - there are various transactions of the loan as per the complainant's contention itself. If that would be the case, for his past transactions of money lending, he ought to have after coming into force of the said Act of money lending, registered with the Registrar of money-lending within 15 days. Such transactions cannot be termed as hand loan. He is also claiming that he has received 24% interest. As such, without registration or intimation to the Registrar as per the Goa Money-Lenders Act, the amount so advanced, cannot be termed as legally enforceable debt. Criminal Misc. Applications are allowed.
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