2022 (11) TMI 397

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....t had not produced any documents to prove the alleged money transaction to enforce a debt. The failure of the facts to prove the foundational fact will dis-entail the complainant to take advantage of presumption under Section 139 of the Negotiable Instruments Act, 1881. The complainant, who claims that the petitioner owes a sum of Rs.25,00,000/- has not produced any document to prove the debt other than the cheque marked as Ex.P1. 3. The complainant admits that he is involved in lending money for interest but he is not registered himself as a money lender, which is a mandatory requirement under the Tamil Nadu Money Lenders Act, 1957. He has not produced any document kept in the course of his business to prove any money transaction with the petitioner. The complainant claims the source of money lend was the transaction through in respect of the property of one Haridoss for whom the petitioner was the power agent but the said Haridoss was not examined. Further, the conviction sentencing the accused to undergo one year imprisonment beside to pay compensation of the cheque amount is excessive. 4. To support of his argument, the learned counsel appearing for the petitioner relied ....

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.... (1)K.N.Beena v. Muniyappan and another reported in (2001) 8 SCC 458; (2)Hiten P.Dalal v. Bratindranath Banerjee reported in (2001) SCC (Cri) 960; (3)P.Venugopal v. Madan P.Sarathi reported in 2008(6)CTC 50; (4)K.A.Abbas Sabu v. Joseph reported in 2010(4) Supreme 65; (5)Rangappa v. Sri.Mohan reported in 2010(4)Supreme 169; (6)Keshavamurthy v. Abdul Zabbar reported in CDJ 2013 SC 654; (7)T.Vasantha Kumar v. Vijayakumari reported in 2015(8) SCC 378; (8)Commissioner of Income Tax v. T.R.Rangarajan reported in (2005) 279 ITR 0587; (9)Commissioner of Income Tax v.Lakshmi Trust Co., reported in (2008) 303 ITR 99; (10)A.B.Shanthi v. Asst.Director of Inspections reported in 2007 (2) MLJ Crl. 446; (11)M/s Jayam Co. v. T.Ravichandran reported in 2003 (2) CTC 31; (12)Kailashchand Jain v. N.Seetharaman reported in 2007 (4) CTC 371; (13)Gopal v. Balachandran reported in 2008 (1) CTC 491; (14)Benedict Fernandez v. Rajiv Bhatia reported in CDJ 2008 MHC 771; (15)Mr.Bipin Mathurdas Thakkar v. Samir alias (Bombay High Court at GOA) in Crl.R.C.No.53 of 2014, dated 05.....

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....ly, 11 Exhibits were marked. From those exhibits, it is clear that the cheque Ex.P1 was drawn by the petitioner/accused. In his reply, he had contended that the cheque was snatched from him with the help of goondas and he has given a complaint in this regard to the Police. Statutory notice Ex.P4 and the Reply Ex.P7 and the re-joinder by the complainant Ex.P8 read together proves that there was prior money transaction between the complainant/respondent and the accused/petitioner and the cheque (Ex.P1) was drawn by the petitioner/accused from the account maintained by him in favour of the respondent/complainant. This is the reason why the petitioner admits in his re-joinder (Ex.P8) that he has instructed the Bank to stop payment. However, the stop payment instructions given by the petitioner/accused which is marked as Ex.P11 indicates that the petitioner has informed his Bank that the subject cheque was lost, which is factually contrary to the complaint to the police as if the cheque was robbed from him by the respondent/complainant. The re-joinder notice (Ex.P8) indicates that the complaint given by the petitioner/accused regarding extortion of the cheque by the respondent/ complain....

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....petitioner/accused ought to have examined the said A.K.Govindarajan which he has failed to do so. 12. Regarding the allegation that the respondent/complainant is an unregistered money lender and therefore, he cannot prosecute the petitioner under Section 138 of the Negotiable Instruments Act, 1881, by referring the judgement of Bombay High Court in Anil Baburao Kataria v. Purshottam Prabhakar Kawane reported in [(2010) Crl.L.J. 1217], this Court finds that the fact of the case cited is different from the facts of the case on hand. 13. The complainant in the cross examination though admits that he is engaged in money lending business and he is not a registered money lender, as far as this transaction is concerned, even in his statutory notice, the complainant has categorically stated that the petitioner herein being a long time friend has lend money for free of interest. That being the case, when the transaction is not for interest, the Money Lending Act have no application. 14. The learned counsel appearing for the petitioner further submitted that the sentence imposed is exorbitant and contrary to the principle laid in Mangilal v. State of Mathyapradesh reported in [(2004....