TaxTMI 
TaxTMI 
2015 (10) TMI 2841
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...., namely, Mahendra Kumar Patni and Anjani Kumar Shahi hereinafter described as the respondents/accused were the accused in the case. Both the aforesaid companies have their respective offices in the same premises at Shakespeare Sarani, Calcutta. It has been alleged by the appellant/complainant that the respondents/accused company to discharge its existing liabilities issued five cheques amounting to Rs. 2,50,00,000.00 (Rupees Two Crores Fifty Lack only) in total, in favour of the appellant/complainant. All those cheques were drawn on Allahabad Bank, Elgin Road Branch, Calcutta. According to the appellant/complainant all those five cheques were deposited in due course within the time, in the account of the appellant/complainant. All those cheques were dishonoured and returned with note "insufficient fund" and the appellant/complainant received such information on 02.05.2011. Immediately thereafter, appellant/complainant sent a demand notice to the respondents/accused on 10.05.2011. The said demand notice was duly served upon the respondents/accused company on 12.05.2011. But in spite of such notice the respondents/accused failed and neglected to pay the amount in the cheques dishono....
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....bit-4 series are the return memos and from those documents it is clear that all those cheques were returned unpaid because of insufficient funds in the drawer's account, i.e., in the account of the respondents/accused. Exhibit-5 is a demand notice. Exhibit-6 series are the postal memos and Exhibit-7 is a postal acknowledgement card. From Exhibit-7 it is found that the demand notice was duly served upon the respondents/accused. The respondents/accused never claimed that they paid any amount against those bounced cheques in response to the demand notice received by them. Learned Trial Court, therefore, decided the points No. 1 to 5 framed by it, in favour of the appellant/complainant. The decisions on the points have not been disputed during the hearing of the appeal. 7. In fact, the main defence of the respondents/accused was not on any of the aforesaid issues. The main defence of the respondents/accused as agitated by the learned Advocate for the respondents/accused during the hearing of the appeal was that the transactions in question were simple lending of money for which the appellant/complainant had no valid licence and hence the provisions of Section 138 or 139 of the N....
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....and eight hundred seventy seven only) as interest on loan while their company earned only Rs. 35,379.00 (Rupees thirty five thousand three hundred seventy nine only) as dividends. From such facts and figures it is clear that the main business of the appellant/complainant is money lending. 10. One or two isolated transactions of loan between two persons cannot be treated as money-lending transactions. But in the present case there were five transactions on five different dates and a huge amount, i.e., Rupees 2,50,00,000.00 (Rupees Two Crores Fifty Lack only) in total, is involved in those five transactions. It is not understandable as to why such a huge amount was paid by the appellant/complainant to the respondents/accused without any specific and separate agreement. The explanation that the money was paid as accommodation loan because of good relationship between the directors of the two companies is not convincing. As discussed above, money-lending is a primary business of the appellant/complainant. In the circumstances it can be said without any hesitation that the transactions in question were money-lending transactions. 11. Admittedly the appellant/complainant has no mon....
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.... Hon'ble Apex Court in the case reported in 2008 CRI L.J. 1172, (Krishna Janardhan Bhat - versus - Dattatraya G. Hegde). He also cited the following decisions to support his contentions I) AIR 2009 SC (supp) 2022 (Jugesh Sehgal - versus - Shamsher Singh Goti), II) 2002 CRI L.J. 3193 (Shridi Sai Steel, Balu Complex and others, etc. - versus - State of A.P. and another), III) 2010 CRI L.J. 2871 (Rangappa - versus - Mohan), IV) 2009 CRI L.J. 3777 (Sanjay Mishra - versus - Kanishka Kapoor @ Nikki and Anr.), V) 2010 CRI L.J. 1217 (Anil Baburao Kataria - versus - Purshottam Prabhakar Kawane). 17. On the contrary Mr. Ganguly argued that whether the appellant/complainant has any money-lending licence or not is not a matter to be considered in a case under Section 138 of the N.I. Act as the presumption under Section 139 of the N.I. Act is there in favour of the appellant/complainant. He further argued that the presumption under Section 139 of the N.I. Act includes the presumption of legally enforceable debt or other liability also. He relied upon the decision in (2011) 1 Supreme Court Cases (Cri) 184 (Rangappa - Versus- Sri Mohan). Mr. Ganguly also cited the following decisions. I) 2....
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.... the holder of the cheque has received the cheque for discharge in whole or in part of a debt or liability. A similar view has also been expressed in K. Vaskaran's case (supra). 22. There cannot be any dispute to the fact that the presumptions both in Section 118 and 139 of the N.I. Act are rebuttable presumptions. In the present case the only point for rebuttable of such presumptions for the respondents/accused is that the transactions in question are illegal transactions as the appellant/complainant has no money-lending licence. As held earlier, lending money without having a money-lending licence itself is not prohibited under the Bengal Money-Lender's Act, 1940. So, the presumptions in favour of the appellant/complainant stand unrebutted. The respondents/accused cannot, therefore, escape from the liability under Section 138 of the N.I. Act, especially when there is no denial of the fact that the respondents/accused issued the cheques in question which were dishonoured due to insufficient fund in the account of the respondents/accused. 23. So, from the foregoing discussion it is clear that the Trial Court's views are erroneous in law. In result, the order of ac....