TaxTMI 
TaxTMI 
2004 (9) TMI 675
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....ion 138 of the Negotiable Instruments Act forms part of the record? Or, Whether the same has to be marked as an exhibit as held in the said judgment and whether mere non-marking of the complaint is fatal?" 2. The facts and reason for reference are that: The respondent - complainant filed a complaint against the petitioner/accused before the Court on XII Additional C.M.M. at Bangalore City for the offence punishable under Section 138 of the N.I. Act alleging that in connection with loan of ₹ 1, 95, 000/- availed by him on 14.1.1997, the petitioner/accused had issued 13 cheques, each for a sum of ₹ 15, 000/- besides executing pronote dated 21.1.1997. When five cheques at Exs.P4 to 8 were presented for encashment, they were ....
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....uittal. The learned Singe Judge (MSRJ) was not inclined to subscribe to the view expressed and law declared in G. PREMDAS's case and as such the present reference. 3. As the question raised is of general importance, we had requested Sri S.G. Bhagavan, learned Advocate to assist the Court as Amicus Curiae. 4. We have also heard the learned Counsel appearing for the petitioner/accused and also the learned Counsel for the respondent/ complainant. 5. It was submitted by Sri S.G Bhagavan, Advocate - learned Amicus Curiae that the complaint presented before Court under Section 200 of Cr.P.C, is a part of Court record, which could be looked into and considered even without being marked as exhibit since it is not a document to say that it c....
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....and this is possible only when such complaint is produced and got marked in the evidence of the complaint. It was also observed that the complaint is not a substantive piece of evidence but can be used for corroborating or contradicting the complaint, though the proceedings under the N.I. Act are practically admixture of civil and criminal nature and the complaint forms the basis for the Court to take action and sets the criminal law into motion and is an important document like first information under Section 154 of Cr.P.C. These observations made in G. PREMDAS case are before us for consideration and clarification. 8. As rightly submitted by the Amicus Curiae, a complaint for offence under Section 138 of N.I. Act is always presented in t....
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....te party need not invite the attention of the complainant, who made admission in the complaint. 10. Strictly speaking the complaint is not a document relied on by complainant in support of his case and as such, to rely on or use it, it need not be marked as exhibit since, being part of the record, it could 'be looked into and considered by the Court even though not marked as exhibit. 11. In the above view, simply because complaint is not marked as exhibit, the accused will not loose a chance to confront the complaint with its contents. So also, it cannot be said that like FIR, it is not a substantive piece of evidence. This is because, complainant can rely on the averments in the complaint without getting it marked as exhibit since it....
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..... In this connection, he referred and relied on Section 11 of the Karnataka Money Lenders Act, according to which, suit filed by a money lender, who has no valid licence in money lending, would not be decreed by a Civil Court. 16. It is true that the complainant - P.W. 1 has made the above admission, but there is nothing in his evidence to show that in the course of his business as a money lender, he has lent/advanced the amount to the petitioner/accused. That apart, though examined himself as D.W.I petitioner/accused has not stated that the cheques in question were in relation to any money lending business i.e., the cheque issued was in the course of money lending business of the respondent/accused. Suggestion made to the complainant - P.....
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....y lender" as defined under the Karnataka Money Lenders Act. So, admission or statement of respondent - PW.1 that he does not possess money lending licence does not come to the aid of the petitioner/accused. 19. Of course, it was vehemently argued for the petitioner/ accused that the transaction in question could be said to be with profit motive since interest was agreed in the transaction, as can be said from promote at Ex.P.2. For this firstly, it may be noted that the complaint was not based on the pronote. Secondly, execution of pronote was subsequent to issuing cheques and it was not on the date of cheques. Thirdly, pronote was executed as security in the transaction of loan in which cheques were issued. Lastly, even if assumed th....