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TMI Blog2023 (8) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under Section 138 of Negotiable Instruments Act. The accused needs to be dealt with as per law. Mr. Sawant submitted that instead of remanding the matter this Court can decide this matter. He submitted that there is a punishment in the form of imprisonment and fine being twice amount of the cheque. The sentence is optional, either it may be imprisonment for two years or fine which may be twice amount of the cheque or both - it is not felt proper to impose sentence of imprisonment but the complaint is pending since 2011 - the respondent can be imposed with the fine being twice the amount of the cheque. There is a request for leniency from imposing twice the amount of the cheque. It can t be accepted when this Court is not imposin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness of money lending, loan, whereas, according to learned Advocate Ms. Ayubi when there are certified copies of documents that is complaint and judgment at Exhibit-25, 26, 27, 28 and 29 are filed what more is required. 4. If loan is advanced, on the basis of negotiable instrument, it falls within the meaning of a loan and it does not fall within the meaning of business of money lending . According to him, section 10 of the said Act prevents the Court from passing a money decree in a suit for recovery of a loan advanced by money lenders without a license. According to him, there is prohibition for suit only and it is not applicable for prosecution under section 138 of Negotiable Instrument Act. To buttress his submission he relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the entire amount by installments. My attention is invited to answer given to question no.14 recorded under section 313 of Code of Criminal Procedure Code (page no.62). It is true that accused has admitted the payment by way of cheque amount of Rs. 1,30,000/-(Rupees One Lakh Thirty Thousand Only) but denied receipt of Rs. 20,000/- (Rupees Twenty Thousand Only). He has also pleaded about repayment of that amount. 8. It is true that the theory of repayment is neither substantiated by adducing evidence or not by cross-examination of the complainant. So theory of repayment has failed. In order to prove advancing Rs. 1,50,000/- (Rupees Fifty Thousand Only), there is receipt on (page no.39). It has given the details as to how monies were adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are reproduced and one observation. What transpires is that there is no discussion about the provisions of the said Act. If your are non-suiting a litigant you have to discuss the provisions of law and what are the facts. No doubt the complainant has advanced amount to two different persons and also lodged prosecution under section 138 of Negotiable Instruments Act, this is not sufficient. 12. The provisions of section 2 (2) defines the meaning of the business of money lending . It is nothing but the business of advancing loan. Whereas, meaning of word loan is given in section 2(9), it means advance at interest whether in money or in kind at an interest but does not include certain categories. They are excluded from meaning of the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of loan. Question was raised about granting of leave to defend the suit. If loan was advanced on the basis of Negotiable Instrument then it can be considered as a loan. The receipt at Exhibit-17 (page no. 39) mentions that cheque in question was issued. It was post dated cheque. The complainant was permitted to deposit on a due date. These facts were not considered by the trial Court. So it can be said that money was advanced on the basis of Negotiable Instrument and certainly falls within the meaning of the word loan. It does not fall within the meaning of business of advancing money. So the trial Court erred in non-suiting the complainant. 15. The accused tried to take defence about re-payment, however, he could not substantiate it. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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