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2022 (8) TMI 1423 - HC - Indian LawsDishonour of Cheque - legally enforceable debt or not - cheques given as security - execution of cheques giving rise to statutory presumption under Section 118 and 139 of Negotiable Instrument Act - HELD THAT - The learned Sessions Judge while allowing the revision application preferred by respondent Nos. 1 and 2 has observed that the contract which is forbidden by law is void contract. In cases of money lending business without license the provisions under Section 138 of Negotiable Instruments Act are not attracted. According to the complainant huge amount of Rs. 4, 50, 000/- was parted to the accused. There was a Memorandum Of Understanding (MOU) dated 22.02.2014 between M/s. Monika Sumit Ujjain as the lender and M/s. Saga Infra as the borrowers. As per MOU it can be gathered that the transactions was without license. Post dated cheques were given by way of security. There are no reason to interfere with the impugned order - Criminal Revision Application stands rejected.
Issues:
1. Revision of order dated 26.06.2015 by Additional Sessions & District Judge-3, Thane in Criminal Revision Application No.134 of 2015. 2. Challenge to the order of process under Section 138 of Negotiable Instruments Act. 3. Consideration of legality of the impugned order by the High Court. Issue 1: Revision of the Order The applicant, an aggrieved party, challenged the order dated 26.06.2015 passed by the Additional Sessions & District Judge-3, Thane in Criminal Revision Application No.134 of 2015. The Sessions Judge allowed the revision application filed by respondent Nos. 1 and 2, setting aside the order issuing process under Section 138 of the Negotiable Instruments Act against the accused. Issue 2: Challenge to the Order of Process The applicant, the original complainant, alleged that the accused parties sought a loan and issued cheques that were dishonored. The complainant presented the cheques, which were returned with the remark "Payment stopped by the drawer." The complainant contended that all procedural safeguards were complied with, and the order of process could not be set aside in revision. The complainant argued that the presumption under Section 139 of the Negotiable Instruments Act needed to be rebutted during trial, and the learned Sessions Judge erred in considering the defense of the accused parties. Issue 3: Consideration of Legality The High Court considered the arguments presented by both parties. The applicant's advocate contended that the impugned order passed by the learned Sessions Judge was contrary to law and failed to consider the statutory presumptions under the Negotiable Instruments Act. The advocate cited various legal precedents to support the applicant's case. On the other hand, the respondents' advocate argued that the continuation of proceedings against the respondents would be an abuse of the legal process and that the order issuing process was passed mechanically. In the final judgment, the High Court examined the impugned order dated 26.06.2015 and upheld the decision of the learned Sessions Judge. The High Court concurred with the Sessions Judge's observation that in cases of money lending business without a license, the provisions of Section 138 of the Negotiable Instruments Act were not applicable. The Court noted the existence of a Memorandum of Understanding indicating that the transactions were conducted without a license, and post-dated cheques were provided as security. Consequently, the High Court rejected and disposed of the Criminal Revision Application, affirming the decision of the Sessions Court.
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