TMI Blog2020 (1) TMI 381X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to any debt, even if it is a time barred debt, in such an eventuality such stand is not available to the accused that there is no existence of any debt or liability. Therefore, on the said ground, the acquittal recorded by the trial court is not proper. So far as the proceedings u/s.138 of the Negotiable Instruments Act is concerned, the question of the complainant having money lending licence does not arise - acquittal of the accused on the above said ground by the trial court is also not proper and correct. The judgment of acquittal for the offence punishable under Section 138 of the Negotiable Instruments Act is hereby set aside - Appeal allowed. - Criminal Appeal No. 799/2010 - - - Dated:- 4-12-2019 - THE HON&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque was dishonoured with the shara noted by the Banker Funds insufficient vide endorsement dated 8.6.2006. Thereafter, the complainant stated that he has issued a legal notice on 15.6.2006 calling upon the accused to make good the payment of ₹ 50,000/-. Though the notice was served on the accused on 16.6.2006, the accused has issued an untenable reply to the said notice, but he has not complied with the notice by making the payment. Therefore, the complainant has filed the complaint within time i.e., on 18.7.2006. On appearance, the accused has contested the proceedings by taking various grounds. The plea of the accused was recorded and he denied the allegation made against him and claims to be tried. 4. The com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant and as well as issuance of reply notice. But, in the course of cross examination, it is elicited that the Complainant has not specifically stated that on which date, the said amount was given to the accused, though it is stated in the evidence that it was on 9.1.2003. He has also admitted that he has not shown any of this amount in his Income Tax Returns. He has also admitted that he has no licence under any law to give such amount by way of loan. It was suggested that the accused was not due in a sum of ₹ 50,000/-, it is further suggested that the accused has returned the entire amount but in spite of payment of the entire amount, the cheque was not returned. It is also suggested that the contents of the cheque is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue have been admitted by the accused. Therefore, the only point that remains for consideration of this court is whether the non-production of any licence for providing loan is fatal to the complainant's case and further, whether there was existence of any legally recoverable debt and how it has to be considered. 7. These two points are in fact covered by the judgment of this court, as cited by the learned counsel for the petitioner reported in 2007(1) KLJ 238 between H. Narasimha Rao. Vs. Venkataram, wherein this court has held in the following manner: Banking - Dishonour of Cheque - Time- barred debt - Section 138 of Negotiable Instruments Act, 1881 (the 'Act') - Complainant granted loan to Accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RUMENTS ACT, 1881 -Section 138-Once the cheque issued the accused cannot contend that it is not issued in respect of legally enforceable debt or else proper procedure has not been followed according to the provisions of Negotiable Instruments Act. b. NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138-Under Section 138 Negotiable Instruments Act, the question of complainant having Money Lending License does not arise. c. NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 138, 142 - Fine amount court is entitled to impose fine to the extent of double the cheque amount. In the present case, the amount of ₹ 34,65,000-00 awarded by the Trial court wad reduced to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 (12) SCC 539 between Indus Airways Pvt.Ltd., Others Vs. Magnum Aviation Pvt.Ltd., another wherein the Hon'ble Apex court has observed that the existence of legally enforceable debt or other liability is an essential condition for constitution of an offence u/s.138 of the Negotiable Instruments Act. The above said ruling lays down the general principles with regard to the existence of debt or liability. Therefore, once it is established that there was a transaction between the parties and the cheque was issued for payment of such liability in view of the above rulings noted in the above said cases rendered by our High court, there is no other reasons in order to deviate the principles laid down therein. Under the above said facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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