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TMI Blog2004 (3) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 34,927/- respectively on 30-11-1996 drawn on the Andhra Pradesh State Cooperative Bank Limited, Hyderabad. The cheques were presented for collection on 7-12-1996, but they were returned with endorsement 'insufficient funds'. On this, the complainant demanded for payment of amount through a notice dated 13-12-1996 with a demand to pay the said amount of ₹ 35,927/- along with ₹ 500/- towards legal fee within 15 days from the date of receipt of the notice. The respondent-accused having received the said notice, failed to make the payment and thus committed the offence punishable under Section 138 of the Act. 3. The plea of the respondent-accused was one of total denial and claim to be tried. 4. On behalf of the complainant, P.W.1 was examined and Exs.P1 to P12 were marked. For the defence, none was examined and no documents were marked. After considering the entire evidence on record, the Court below came to the conclusion that the complainant was not able to prove guilt against the accused for the offence under Section 138 of the Act beyond all reasonable doubt and acquitted him under Section 255(1) of Cr.P.C. Aggrieved by the same, the complainant file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the N.I. Act, further provides that the dishonoured cheque shall relate to a debt or liability enforceable in order to constitute an offence..... 10. The Court below after considering the said Judgment came to the conclusion that though in the instant case P.W.1 stated that the complainant is having money lending licence, no such licence was produced. Therefore, the only inference that could be drawn was that the complainant was not having any such money lending licence during the relevant period. Further, the lower Court found that Exs.P6 and P7 were not issued for discharge of legally enforceable debt or liability. Of course, the court below also found the other points against the complainant and in favour of the accused. 11. Learned counsel for the appellant strenuously contended that merely because there was no licence for money lending business held by the complainant, that itself does not mean that there was no legally enforceable liability on the part of the respondent-accused as required under Section 138 of the Act. He had drawn the attention of this Court to the provisions of the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 Fasli, particularly Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... What all Section 2(4) of the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 Fasli contemplates is that loan means, it should necessarily state about the payment of interest by the loanee and in the absence of claiming any interest under Ex.P4, as per the Judgment reported in BABA FINANCE CORPORATION case (supra), at the most the complainant may not maintain a suit against the accused-respondent as contemplated under Section 9(2) of the Andhra Pradesh (Telangana Area) Money Lenders Act,1349 Fasli. This does not mean that the complainant has not proved that there was legally enforceable liability against the respondent. In this regard, the learned counsel for the appellant strenuously contended that in view of Ex.P4 promissory note read with Ex.P5 confirmation letter issued by the respondent, the appellant-complainant has made out legally enforceable liability against the respondent. Therefore, the Court below was not right in holding that the complainant has not proved the legally enforceable liability against the respondent. 13. Whereas, the learned counsel for the respondent-accused submitted that the findings of the lower Court do not suffer from any irregularity or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it was drawn or within the period of its validity, whichever is earlier. (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or. as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation- For the purposes of this section, debt or other liability means a legally enforceable debt or other liability. 15. The said Section c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the complainant made a demand in his statutory notice for repayment of the outstanding amount due under cheque together with interest at 24% per annum, it cannot be said that the notice is illegal and is not in conformity with law. When there is a specific demand in the notice-Ex.P1- for payment of dishonoured cheques' amount together with interest thereon, it cannot be said that the said notice is not in conformity with proviso (b) of Section 138 of the Act and it does not invalidate the very notice. 18. I am in complete agreement with the submissions made by the learned counsel for the appellant. But, as seen above, admittedly, the appellant-complainant claimed that it is a money lender, but has not produced any licence as required under law and further the amount alleged to have been advanced by the complainant cannot be said to be a loan as defined under the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 Fasli. Since the appellant had no money lending business licence, it cannot be said that there was a legally enforceable liability of the respondent in view of Section 9(2) read with Section 2(4) of the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 F ..... 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