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TMI Blog2020 (2) TMI 1706X X X X Extracts X X X X X X X X Extracts X X X X ..... on for discharge of accused was moved for alleged violation of provisions of 138 of the Act, therein it was observed that the alleged violation of provisions of Income Tax Act and Contract Act and Money Lenders Act does not bar continuation of proceedings under Section 138 of the said Act. In V. SATYANARAYANA VERSUS SANDEEP ENTERPRISES [ 2004 (9) TMI 675 - KARNATAKA HIGH COURT] by a Division Bench of Karnataka High Court while dealing with interpretation of money lender, it was observed that money lending must be carrying on as profession and if the money lending was not with profit motive or not carried on as profession, he or she does not become a money lender; a stray instance of lending money does not show carrying on the business o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of friendly relations between him and the accused, the latter raised a friendly loan of Rs. 20,000/- from the former for his domestic needs and promised to repay the loan within short period; that in order to discharge his liability towards aforesaid debts, the accused issued cheque No. 074744 dated 26.5.2007 in the sum of Rs. 20,000/- drawn from his account with State Bank of India, Branch Jalalabad in favour of the complainant giving an assurance at that time that on presentation, the cheque would be encashed; the complainant accordingly presented the cheque with Oriental Bank of Commerce, Branch Jalalabad on 26.5.2007 but the cheque was dishonoured due to insufficiency of funds in account of the accused; the complainant was informe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to have been made by him to the accused could not be considered to be out of the purview of the money lending business of the complainant. Ultimately learned trial Magistrate referring to judgment Anil Baburao Kataria Versus Purshottam Prabhakar Kawane, 2010(2) RCR 843 by Bombay High Court concluded that upon strength of evidence on the parties, it is to be stated that there is a grave doubt on record regarding the requisite registration of the complainant under the Punjab Registration of Money Lender's Act, 1938, therefore benefit thereof is to be afforded to the accused. Accordingly, dishonouring of the cheque said to have been issued by the accused in favour of the complainant was not covered under the mischief contemplated by Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actor in a civil suit but not in a complaint under Section 138 of the Act. In support of his that contention, he has referred to authorities. The first being Jupiter Brokerage Services Ltd. Versus Ektara Exports Pvt. Ltd. Ors. 2015(37) RCR (Criminal) 775, wherein it was observed that money lending without licence is not totally barred on prohibited by the Bengal Money-Lender's Act, 1940 and as per presumption under Section 139 of Negotiable Instruments Act unless contrary is proved holder of cheque has received cheque for discharge in whole or in part of a debt or liability, though such presumption is rebuttable. 8. He has further referred to judgment Dhanjit Singh Nanda Versus State and Anr., 2009(5) RCR (Criminal) 462 by Delhi Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow carrying on the business of money lending as profession or with profit motive. 11. The trial Court had dismissed the complaint mainly for the reason that the complainant was a money lender, lending money without licence. The Magistrate had not gone into the merits of the case as to whether the necessary ingredients of Section 138 of the Act were established or not. Therefore, the impugned judgment dismissing the complaint for the reason of complainant having been found to be a professional money lender practicing money lending without licence is not sustainable, in view of the judgments referred to learned counsel for the appellant/complainant. The judgment is accordingly set aside by way of acceptance of the appeal and the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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