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TMI Blog2023 (12) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... inding of the first appellate Court in the judgment as above, that the appellant/complainant's allegations are hit by the provisions under the Bengal Money Lenders Act, 1940, and would not be sustainable. She says that the first appellate Court in the said judgment has erred in finding that the appellant was duty bound to produce his money lender's certificate in the Court to substantiate his claim that in pursuance of his business, he has advanced loan to the respondents and a cheque was issued by them to pay back such a legally enforceable debt. Ms. Mitra says that the provisions of Bengal Money Lenders Act, 1940, would not be applicable in a case under Section 138 of the Negotiable Instruments Act, 1881, and the entire proceedings before the Magistrate would be independent and exclusive of any embargo what so ever, under The Bengal Money Lenders Act, 1940. Ms. Mitra says that the merits of the case was required to be considered independently though the first appellate Court has misdirected itself to appreciate this settled legal position, while delivering the judgment impugned. 4. In respect of her contentions Ms. Mitra has relied on the following two judicial pronouncements:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 institution the suit for 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. 18. 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 Lenders Act and as such the payment made by the complainant to the respondent was perfectly valid by the said Act of 1940. If that be so the argument of the respondent that the complainant appellant had no legally enforceable debt as against the respondent cannot have any leg to stand on. The decision of the learned trial court on this point that there was no legally enforceable debt is not tenable and this Court respectfully differs with that view." 7. Ms. Mitra has urged that the impugned judgment may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t envisaged on behalf of the respondents/accused persons is regarding non supply/irregular service of the statutory notice. Mr. Dan has pointed out that none of the respondents/accused persons has received the statutory notice claimed to have been sent by the appellant, before the appellant could lawfully file and proceed a case under Section 138 of the Negotiable Instruments Act, 1881. By referring to the provisions under Section 93 if the said Act, he says that it is mandatory and incumbent upon the complainant to serve demand notice to the accused persons. He has not failed in pointing out that the 'service of notice' would denote the notice reaching to the hands of the respondents/accused persons by dint of which the respondents would have gathered direct knowledge about the contentions made therein. It is stated that unless such a statutory notice is furnished, the proceedings under Section 138 of Negotiable Instruments Act, 1881 is only illegal and not maintainable. On this Mr. Dan has relied on the judgment of M/s. Harman Electronics (P) Ltd. & Anr. vs. M/s. National Panasonic India Ltd. reported in (2008) 17 S.C.R 487, to relay on the following paragraph:- "14. It is one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact of issuance of the cheque, by them, with an undertaking to repay the loan with 2% monthly interest. 14. The cheque was presented for encashment on July 1, 2005, however was dishonoured. On July 7, 2005, the appellant was informed by the bank regarding the dishonour of the cheque due to insufficiency of fund. 15. Immediately thereafter the appellant/complainant took steps as per law by sending a demand notice dated July 25, 2005, under register post with acknowledgement due, asking the present respondents to repay the loan amount of Rs. 3,30,000/-, within a period of fifteen days from the date of receipt of the said notice. Two separate demand notices were sent to the two accused persons individually. Amongst the same one that was addressed to accused Tapati Paul/respondent no. 2, was received by one Amulya Mondol on July 28, 2005. The notice issued to the respondent no. 1 was also served upon him on July 27, 2005. Even thereafter the accused persons had not repaid the loan amount. Hence, the appellant/complainant lodged the said complaint before the Magistrate. 16. The trial proceeded. The appellant/complainant examined himself as prosecution witness No. 1. Both the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in existence. According to the first appellate Court, a lawful business of money lending of the complainant would have been a connected relevant fact in issue for the present appellant to prove along with the fact that there existed between the parties a legally enforceable debt, before the statutory presumption could have been invoked in his favour. The Court held that, however, the appellant could not produce his licence for the business, in Court. This omission of the appellant, according to the first appellate Court has constituted adverse inference against him that there existed any legally enforceable debt. Thus, the first appellate Court has opined that the accusation against the present respondents were not proved and reversed the judgment of the Magistrate, of conviction, to a judgment of acquittal. 20. Section 138 of the Negotiable Instruments Act, 1881, has provided for punishment regarding an offence of dishonour of cheque which was delivered in discharge in whole or in part of any debt or other liability and for the reasons of insufficiency etc. of the funds in the account of the drawer. The statutory presumption as enumerated under Section 139 of the said Act in fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt here would be entitled to present the said cheque to the bank for its encashment. In fact in 'exhibit 1', if it can at all be taken to be an agreement in accordance with law, has not mentioned any unanimously accepted date as the outer limit for repayment of the loan amount. 25. Considering the nature of transaction as shown by the 'exhibit 1', I find that the decision of the first appellate Court that money if at all changed hands, was pursuant to the business undertaken by the present appellant and the cheque was handed over as a security in lieu of obtaining the amount. This is more so, when there is no doubt in view of 'exhibit 1' that the parties have agreed for paying interest over the amount, for over a considerable period of time. Therefore in my considered opinion the prosecution in this case has not been successful in discharging its initial burden that the cheque was issued by the present respondents in discharge of their legally enforceable debt towards the appellant. Having said so it becomes virtually unnecessary to mention that the presumption under Section 139 of the Negotiable Instruments Act, 1881, would have no manner of application in case of the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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