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TMI Blog2015 (12) TMI 1895X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant as loan and in discharge of his liability he repaid the said loan on 19th July, 2005 by issuing a post dated account payee cheque in favour of the complainant to the tune of Rs. 40,000/- being cheque No. 295461 dated 7th December, 2005 on Gorghara Branch, Allahabad Bank, District 24 Parganas (South) and at the same time the accused executed a document dated 19th July, 2005 admitting the said receipt of the amount and issuance of the aforesaid cheque the accused undertook to repay the said amount along with 2% interest per month on the principal amount and that on 8th April, 2006 when the cheque was presented by the complainant to his banker namely, United Bank of India on 19th April, 2006 the complainant was informed vide Bank Memo dated 11th April, 2006 that the cheque was dishonoured with the remark "insufficient fund". Thereafter, demand notice was issued by the complainant through his advocate by registered post with A/D asking him to repay the loan amount within the stipulated time. The said notice was received on 26th April, 2006 by the wife of the accused. But in spite of its receipt the accused did not pay any amount and as such the complaint was filed. The accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of any money-lending licence such plea cannot be taken and also cannot be answered in favour of the defence. It was further held by the Court that in the absence of any valid licence it cannot be held that the cheque in question was issued and discharge of any legally enforceable debt. 2. 2006 (3) CHN 518 (Samarendra N Das v. Supriyo Maitra) wherein also exercising the power granting under Section 482 of the Cr. P.C. the learned Single Judge held that there was no ground to dismiss the complaint at that stage and whether there was violation of the provisions of the Income Tax Act or Money-Lenders Act etc. will have to be considered by the learned Trial Court at the time of trial and the Court was pleased to dismiss that CRR. 3. One unreported decision of this Court in C.R.R. No. 1897 of 2015 (Gobinda Chandra Mondal v. Sajal Guha) wherein this Court did not dispose of the issue considering the fact that judgment before the Trial Court was to be delivered only on 17th October of 2015 and this Court I reiterate deliver the judgment on 13th September, 2015. 4. One unreported decision of this Court in C.R.R. No. 3002 of 2011 (Sri Subrata Sarkar and anr. v. Sajal Guha) wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the prescribed manner and within the period to be fixed by the Court such penalty as the Court thinks fit, not exceeding three times the amount of the licence fee specified in section 10." 11. Section 8 of the Money Lenders Act, 1940 is also relevant for decision of this case which runs thus: "After such date not less than six months after the commencement of this Act as the State government shall, by notification in the Official Gazette, appoint in this behalf, no money lender shall carry on the business of money lending unless he holds an effective licence. Explanation- An effective licence for the purposes of this Act comprises a licence issued to a person who is not disqualified for holding a licence." 12. The learned trial court acquitted the accused on the ground that the complainant was a money lender and he cannot get the advantage of Section 138 of the N.I. Act. There is a presumption in favour of the complainant under Section 139 of the N.I. Act but that presumption is restricted to the extent of drawing the cheque. The complainant will have to prove that the cheque was issued in discharge of existing liability. 13. Thus, this Court will have to consider wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. He was asked by the legislature to pay certain penalty and if such penalty is paid the suit instituted for recovery of money cannot be dismissed on the ground that the plaintiff had no money lending licence. 19. 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 Mone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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