BARPETA.
N.I. case No. 15/09 U/S 138 of NI Act
Present : Md. Abdul Hakim, M.A.,LL.B., Addl. Chief Judicial Magistrate, Barpeta.
Narayan Nath --- Complainant
Lohit Ch. Haloi --- Accused Appearance :
For the complainant: S.C. Choudhury, Adv., For the accused: R.N. Das, Adv.,
Dates of evidence : 7.3.12, Date of argument : 21.1.14, Date of judgment : 27.1.14.
J U D G M E N T
1. The prosecution case set forth by the complainant as follows-- that due to the good friendship between the complainant and the accused, the accused was taking money from the complainant time to time. On 12.11.08 the accused took an amount of Rs.2,00,000/- from the complainant as loan by executing a promissory note in favour of the complainant and promised to repay the amount in a stipulated period of time. While the accused did not pay the money back, on demand of the complainant the accused issued a cheque bearing No. 442512, dtd. 6.4.09 of Rs.2,00,000/- to be withdrawn from his savings account No. 11057429567 of SBI, Barpeta. When the complainant deposited the cheque in his account of United Bank of India, Nagaon(B) Branch of Barpeta for collection of the cheque amount, then on 22.9.09 he was informed by the bank authority that the cheque was returned on 17.9.09 with a report of insufficient fund. Having
knowing the fact, he issued a pleader's notice to the accused to return the loan amount. But the accused refused to pay the loan amount. Hence the complainant alleged that thus the accused intentionally fraudulently has tried for self appropriation of the loan amount of Rs.2,00,000/-. Hence the complainant has prayed to draw up a proceeding u/s 138 of NI Act,1881 against the accused to collect the principal amount with fine amounting to Rs.4,00,000/- on behalf of the complainant.
2. On receipt of the complaint petition and upon perusing the deposition on affidavit, the court took cognizance and issued processes against the accused person. By obeying the summons the accused person appeared before the court and particulars of offence u/s 138 of NI Act was explained to the accused person to which he pleaded not guilty and claimed to be tried.
3. During trial, complainant has examined 4(four) witnesses. Accused was examined u/s 313 CrPC. Defence took the plea of total denial and adduced evidence of 2(two) witnessed including the accused himself as DW1. I have heard argument put forward by the ld. Counsel for both the sides as well as gone through the entire evidence available on record.
4. Point for determination
:-i) Whether the accused took loan from the complainant and issued cheque No.442512 dtd. 6.4.09 amounting to
Rs.2,00,000/- of the A/C No.11057429567 of SBI, Barpeta Branch for the payment of loan of Rs.2,00,000/- which was received by the accused from the complainant and the said cheque was dishonoured due to insufficient fund in the
account of the accused and thus cheated the complainant or not?
DISCUSSION,DECISION AND REASONS THEREOF
5. P.W.1- Narayan Nath has filed an affidavit by which states interalia that due to the good friendship between the complainant and the accused, the accused took money from the complainant time to time. On 12.11.08 the accused took an amount of Rs.2,00,000/- from the complainant as loan by executing a promissory note in favour of the complainant and promised to repay the amount in a stipulated period of
complainant the accused issued a cheque No. 442512, dtd. 6.4.09 amount to Rs.2,00,000/- to be withdrawn from the savings account No. 11057429567 of the accused of SBI, Barpeta. When the complainant deposited the cheque in his account of Union Bank of India, Nagaon(B) Branch of Barpeta for collection of the cheque amount, then on 22.9.09 he was informed by the bank authority that the cheque was returned on 17.9.09 with a report of insufficient fund. Having knowing the fact, he issued a pleader's notice to the accused to return the loan amount. But the accused refused to pay the loan amount. Hence the complainant alleged that thus the accused intentionally fraudulently has tried for self appropriation of the loan amount of Rs.2,00,000/-. Hence the complainant has filed this petition to draw up a proceeding u/s 138 of NI Act,1881 against the accused to collect the principal amount with fine amounting to Rs.4,00,000/- on behalf of the complainant. PW1 has exhibited the relevant documents vide Ext.1- the cheque vide No.442512, dtd. 6.4.09 amounting to Rs.2,00,000/- issued by the accused to him, Ext.2- report of the SBI, Barepta regarding insufficient in the account of the accused, Ext.3- report of the Union Bank of India, Nagaon(B) Branch Barpeta with the report of the SBI, Barpeta, Ext.4- the Advocate notice sent to the accused on 6.10.09 by registered post with A.D., Ext.5- postal receipt of the registered post, During cross examination he states that the accused is his friend. In accordance to the case the transaction is about Rs.2,00,000/-. He has not deposited the promissory note in the court. Ajit Kr. Saha is belonged to his village. He does business of lending of money and receiving of interest. He has no Income Tax file. He has not mentioned from which of his account, the money was brought out. He denies that he is cheating the govt. and doing the business of money transaction. On 5.5.09 out of the Rs.2,00,000/-, Rs.1,00,000/- was given to him by the accused vide cheque No.442514. The money was withdrawn from the bank on 6.5.09. Another Rs.50,000/- was received through cheque No.442521 out of the Rs.2,00,000/- from the accused. He denies that the accused vide cheque No.442525 withdrew an amount of Rs.50,000/- from
his account on 1.9.09 and handed over to him through one Ajit Saha and he denies that though he received the full amount, but the cheque and promissory note to the accused did not return and thus he had cheated the accused.
6. P.W.2- Ajit Kr. Saha has deposed that the accused received Rs.2,00,000/- as loan on 12.11.08 from the complainant and issued cheque No. 442512. Later the complainant deposited the cheque in the Union Bank of India, Nagaon(B) Branch for the collection of the cheque amount. But the bank manager informed the complainant about insufficient fund in the account of the accused. The matter was informed to the accused over telephone by the complainant. He also pursued the accused to pay the cheque amount, but of no avail and thus the accused fraudulently has tried to misappropriate the loan amount of Rs.2,00,000/- from the complainant. During cross examination he states that he has not seen the money transaction between the complainant and the accused. He has not seen anything about the cheque. As he was told by the complainant, he has deposed before the court. He denies that through him the accused paid an amount of Rs.50,000/- to the complainant.
7. P.W.3- Sri Pranjit Kr. Nath has deposed in same tone and tune as PW2 that the accused received an amount of Rs.2,00,000/- from the complainant and issued a cheque No.442512. Later, the cheque was deposited in the account of the complainant. The bank authority informed the complainant about the insufficient fund in the account of the accused. Then the accused was informed about the matter and asked him to repay the loan amount. But he did not pay the loan amount and thus the accused has misappropriated the loan amount of Rs.2,00,000/- from the complainant. During cross examination he states that the complainant is his brother in relation. He does not know the bank account No. of the accused and the complainant. He could not say the cheque No. he denies the suggestion of the defence side.
8. P.W.4- Tarun Kr. Singh has deposed he is working as Deputy Manager, SBI, Barpeta Branch. The Account No. 11057429567 is in the name of Lohit Ch. Haloi in their bank. The cheque book was issued
their bank for clearance. Due to the insufficient fund in the said account of the cheque, they had informed by Ext.3 to the UBI, Nagaon Branch. He has brought today the account statement of Lohit Ch. Haloi which is from 1.1.09 to 31.12.09. On 6.5.09 vide cheque No. 442514 Rs.1,00,000/- and on 24.8.09 vide cheque No.442521 Rs.50,000/- was drawn by N. Nath from this account. On 1.9.09 vide cheque No. 442422 an amount of Rs. 50,000/- was drawn by B. Saha from this account. The Ext.3 who issued he does not know. Ext.3 issued by following register of bank but he has not brought the register today in the court. As he has not brought the register, so he cannot say whether the Ext.3 is true or false. He does not know who put signature on Ext.2. He has no knowledge about the signature of Lohit Ch. Haloi.
9. With regard to the point for determination I have perused the materials on record and found that the complainant has admitted that he has already received Rs.1,50,000/- out of the total Rs.2,00,000/- delivered to the accused. But the complainant has mentioned in his complaint petition as well as in his affidavit that he did not receive the Rs.2,00,000/- from the accused. As during cross examination the complainant has admitted that he received Rs.1,50,000/-, it indicates that he contradicted his deposition in affidavit. Moreover the accused has claimed that he also delivered the remaining Rs.50,000/- to the complainant through PW 2, but the PW 1 and PW 2 denies the fact. But here is the moot question is that whether the accused returned the loan amount of Rs. 2,00000/- to the complainant or not? The complainant is alleging that the accused did not pay him back the total loan amount. But the complainant has admitted during his cross-examinaiton that he received back Rs. 1,50000/- from the accused but he has not yet received the remaining Rs. 50,000/- and which indicates that the complainant has exaggerated the prosecution story and also filed a false affidavit that he has not received Rs.2,00,000/-. Apart from this as the accused has deposed that he has delivered the remaining Rs.50,000/- to the complainant through PW 2, though the PW 2 denies the fact yet, in view of these facts and circumstances, it cast a doubt about the
authenticity of the prosecution story.
10. Here, another point raise by the defence side that the complainant admits he does business of money lending and could not prove that he has any valid licence for such business and hence the money which was advanced by the complainant is not “debt or other liabilities” as per explanation to S.138 N.I.ACT and Provision of S.138 N.I. ACT would not apply to such transaction. In reply Ld. Counsel for the complainant denies the point of the defence side.
11. In view of the argument of both sides I have perused the evidence of record and found that the complainant has admitted that he does business of money lending but could not prove that he has any licence. Hon'ble High Court of Bombay (Aurangabad Bench) has decided in Criminal Application No. 630 of 2009 in Criminal Appeal (Stamp) No. 139 of 2009 Anil Vs. Purshottam (MANU/MH/1443/2009) that “as per explanation to Section 138 of the Negotiable Instruments Act "debt or other liability" means a legally enforceable debt or other liability. So, a loan advanced by a money lender who is doing business of money lending without licence is not a debt or other liability and provisions of Section 138 of the Act will not apply to such transaction. In the light of above, it cannot be said that in the present case, that the cheque issued by the Respondent in favour of the applicant was for the liability enforceable in law”.
It is pertinent to mention here that in Assam Money Lenders Act 1934, Section 7-B enumerates as follows that -''Registration of money lenders and registration certificates- Every person who carries on or intends to carry on the business of mbey lending shall get humself registered by an application made to the Registrar in prescribed form and prescribed fees and a such registration, the registrar shall grant a regisration certificate to him in such form as may be prescribed''.
S. 7--C enumerates as follows that “Bar to carry on business without registration certificate- (1) No person shall carry on the business of money lending unless he holds a valid registration certificate in this behalf''.
of money lending without any valid licence, his loan advanced to the accused is not a debt or other liability and hence provisions of S.138 N.I.Act will not apply. The cheque issued by the accused infavour of the complainant is not for the liability enforceable by law.
12. In view of the above facts and circumstances, I am of the considered view that the complainant has failed to prove the case beyond all reasonable doubt. Hence, the accused is acquitted on benefit of doubt and set at liberty. His bail bond is extended up to 6 months u/s 437A CrPC. 13. Given under my hand and seal of this court on this the 27th day of January, 2014.
(Md. Abdul Hakim) Addl. Chief Judicial Magistrate,
Barpeta. Dictated & corrected by me
