TaxTMI 
TaxTMI 
2023 (8) TMI 1287
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....Accused. The Court of Additional Judicial Magistrate First Class Pune, vide judgment and order dated 30th July, 2012 was pleased to acquit the Respondent for the offence punishable under section 138 of Negotiable Instruments Act. All the points were answered in favour of the Appellant except the point about carrying a money lending business by the complainant without license. 2. It was held against the complainant and finally the Respondent was acquitted. This is the complainant's Appeal. Parties will be referred to by their original status. 3. So the issue involved in this Appeal is whether on the basis of the documents produced by the accused, can it be said that the complainant was carrying a money lending business and without lice....
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....usand only) by cheque on 18th February, 2010 by way of cheque. (iv) Rs. 20,000/- (Rupees Twenty Thousand) by way of cash on 17th May, 2010. 6. There is receipt executed by accused on 17th May, 2010 at Exhibit-17 (page no. 39). For repayment accused issued a cheque drawn on Bank of Maharashtra, Paud road branch for 1,50,000/- (Rupees One lakh Fifty Thousand only). It got dishonored due to insufficiency of funds. Complainant issued a notice dated 19th April, 2011. Respondent issued reply dated 2nd May, 2011 Exhibit-22 (page no. 48). Accused demanded certain documents and denied compliance with the notice unless those documents are supplied. Complainant has not complied with the said requisition. Complaint was filed. During trial c....
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.... find any reason to disagree with those findings. It is supported by evidence on record. The provisions of Money Lending Act needs to be looked into. It is true that during cross-examination of the complainant receipts at Exhibit-27 to 29 are shown to him. He has admitted them. But denied repayment. Whereas, Exhibit- 25, Exhibit-26, Exhibit-26-A pertains to judgment and two complaints filed under section 138 against other accused persons. It is on the basis of these documents, the trial Court opined that the complainant is a money lender and as such, prosecution under 138 of Negotiable Instruments Act is not maintainable. 11. I read the relevant observations in para nos. 10, 11. It consists of submissions. Whereas, para no. 12 refers to ....
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....ovisions relating to section 138 are incorporated later on. So if there is a suit for recovery of money which is by way of business of money lending, there cannot be any decree mean to say it can not be enforced through Court of law. There is meaning of debt of liability given in section 138 of Negotiable Instruments Act. It must be legally recoverable debt or liability. So if a person had advanced money by way of business and it is not holding a license it cannot be legally recoverable debt. 13. The emphasis of Shri. Sawant is on the exclusion as per clause (f) to section 2 (9). If money is advanced on the basis of Negotiable Instrument it is excluded so to say if there is a bill of exchange or a cheque and monies are advanced it can be....
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....dvocate on the point of sentence. Sentence is optional, either it may be imprisonment for two years or fine which may be twice amount of the cheque or both. I do not think it will be proper to impose sentence of imprisonment but the complaint is pending since 2011. I think, 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 imposing the sentence of imprisonment. Hence, the following order :- ORDER (i) Appeal is allowed. (ii) The judgment and order dated 30th July, 2012 passed by Additional Chief Judicial Magistrate, Pune in S.C.C. No. 10066 of 2011 is set aside. (i....