TMI Blog2015 (10) TMI 2841X X X X Extracts X X X X X X X X Extracts X X X X ..... escape from the liability under Section 138 of the N.I. Act, especially when there is no denial of the fact that the respondents/accused issued the cheques in question which were dishonoured due to insufficient fund in the account of the respondents/accused. The order passed by the learned Metropolitan Magistrate, 6th Court, Calcutta on 29.06.2013 in case No. C-15450/2011 acquitting the respondents/accused is hereby set aside. All the respondents/accused are found guilty of the offence under Section 138 of the N.I. Act and all the respondents/accused are convicted accordingly. All the respondents/accused are found guilty of the offence under Section 138 of the N.I. Act. Respondents/accused number 2 and 3, namely, Mahendra Kumar Patni and Anjani Kumar Shahi are sentenced to suffer Simple Imprisonment for six months each. They are also directed to pay compensation to the appellant/complainant under Section 357(3) of the Code of Criminal Procedure @ rupees 50,00,000.00 (rupees fifty lakh only) each, in default, they will suffer Simple Imprisonment for two months more. The respondents/accused company, i.e., respondent number 1 is also directed to pay compensation to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay the amount in the cheques dishonoured. Nor had they sent any reply to the notice. Hence, the appellant/complainant filed the present case in the Court of the Chief Metropolitan Magistrate, Calcutta under Section 138 of the N.I. Act. 4. One Ajoy Agarwal, a director of the appellant/complainant, deposed in the case for the appellant/complainant. All relevant documents were also proved and brought on record. The memorandum and Article of Association of the appellant/complainant has been admitted for the respondent/accused. Considering the evidence produced by the appellant/complainant learned Trial Court came to the conclusion that the transactions in question were loan transactions in substance and as the appellant/complainant had no licence for money lending, it is not legally entitled to realise the money from the respondents/accused and because of such reason learned Trial Court acquitted all the respondents/accused in the case. Being aggrieved by and dissatisfied with such judgment and order of acquittal the appellant/complainant filed the present appeal after obtaining special leave from the Court. 5. Learned Trial Court formulated the following points for decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139 of the N.I. Act is not attracted in the case. Learned Trial Court accepted such contention of the respondents/accused and dismissed the appellant/complainant's case on such ground only. 8. Let the nature of the transaction in question be ascertained first. Admittedly the respondents/accused issued five cheques amounting to Rs. 2,50,00,000.00 (Rupees Two Crores Fifty Lack only) in total, in favour of the appellant/complainant. In para 3 of the complaint it is stated that the accused persons in view of their confirmation of accounts for the period of 1st April, 2010 to 31st March, 2011 and against that existing liabilities issued the following cheques.......... However, Sri Ajoy Agarwal, a director of the appellant/complainant in his evidence added that because of their old relations the money was given as accommodation loans to the respondents/accused to overcome their financial crunch. Sri Agarwal on his first day of cross examination admitted that lending money was one of the businesses of their company and that no collateral security was taken from the respondents/accused for the loan given. He further admitted that the alleged loan was given to the respondents/accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has no money-lending licence. 12. Money-lending without licence is not totally barred or prohibited by the Bengal Money-Lender's Act, 1940. The Bengal Money-Lender's Act, 1940 is basically a Regulatory Act and it regulates the business of money-lending. Section 8 of the said Act says that after certain date notified 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. According to provision in Section 13 of the said Act, if a money-lender without having any money-lending licence files a Suit for recovery of a loan such a Suit should be stayed until the money-lender does not pay in prescribed manner such penalty and within such period as may be fixed by the Court and if the penalty thus imposed is not paid by the money-lender/plaintiff then only the Suit should be dismissed. So, according to the provisions in Bengal Money Lender's Act, 1940, money-lending without licence is not itself an illegal Act. 13. It has been held by this High court in the case of Samarendra Nath Das - versus - Suprio Moitra reported in 2006 (3) C.H.N. 518 cited by Mr. Ganguly that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisions. I) 2002 C.Cr.L.R. (SC) 59 (K.N. Beena - versus - Muniyappan and anr.), II) 2002 C.Cr.L.R. (SC) 62 (Rajinder Prasad - versus - Bashir and Ors.), III) 1999 Supreme Court Cases (Cri) 1284 (K. Bhaskaran - versus - Sankaran Vaidhyan Balan and another) on the point. 18. In Krishna Janardan Bhat's case (supra) the transaction was against the provision in Section 269-SS of the Income Tax Act because of which the transaction was considered to be bad in law. In that case, the principle was also laid down that Section 139 of the N.I. Act merely raises a presumption that the cheque in question has been issued for the discharge in whole or in part of any debt or other liability and under the said provision there is no presumption that the 'debt or other liability is a legally enforceable debt or other liability'. However, the principle thus laid down was subsequently considered as incorrect by a larger bench in the case of Rangappa - versus - Sri Mohan (supra). In that case it has been held that the presumption under Section 139 of the N.I. Act does include the existence of a legally enforceable debt or liability also. 19. In the case of Jugesh Sehgal - versus - Shams ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of acquittal passed by the Trial Court cannot be sustained. 24. In view of the decisions recorded above the order passed by the learned Metropolitan Magistrate, 6th Court, Calcutta on 29.06.2013 in case No. C-15450/2011 acquitting the respondents/accused is hereby set aside. All the respondents/accused are found guilty of the offence under Section 138 of the N.I. Act and all the respondents/accused are convicted accordingly. 25. A case under Section 138 of the N.I. Act is a summons- case. So, hearing the convicts on the point of sentence is not needed. 26. Section 138 of the N.I. Act has been introduced to improve the efficacy of the Banking system for the smooth functioning of the commercial world. So, any lenient view on the point of sentence is bound to frustrate the main object of the provision in Section 138 of the N.I. Act. 27. The total value of the cheques involved in the case is rupees 2,50,00,000.00 (Rupees Two Crores Fifty Lakh only). The cheques were issued in the year 2011. The recipients of the cheques, i.e., the appellant/complainant has by this time suffered huge losses on account of the loss of interest, at least. That apart, the appellant/compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
