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2015 DIGILAW 601 (MAD)

Mohan v. Meenakshisundaram

2015-02-02

M.SATHYANARAYANAN

body2015
Judgment 1. The private complainant in C.C.No.300 of 2006 on the file of the Judicial Magistrate No. II, Thanjavur, is the appellant and aggrieved by the order of acquittal passed by the said Court, he has filed this appeal. 2. It is the case of the appellant/private complainant, the first accused in his capacity as the Managing Partner of the 4th respondent/accused namely, M/s.India Tyre Retreading Company, for the conduct of the business of the said firm, borrowed a sum of Rs.1,00,000/- from him on 09.01.2000, agreeing to repay the same with interest @ 24% per annum, on demand. However, in spite of demand, the first accused did not come forward to pay the amount due and payable and once again, the appellant/complainant insisted for repayment. The first accused, in response to the said demand, issued a Cheque bearing No.689346 dated 25.04.2001 drawn on State Bank of India, Mayiladuthurai Branch, for discharge of debt of Rs.1,00,000/-. The complainant presented the Cheque with his Banker namely, Karur Vysia Bank Ltd., Thanjavur, on 09.05.2001 and it was returned with an endorsement 'Funds Insufficient". The appellant/complainant issued a statutory notice on 19.05.2001 under Ex.P8 and the first accused, on receipt of the same, has sent a reply notice in Ex.P13 dated 29.05.2001, denying borrowal. Therefore, the complainant came forward to file the abovesaid complaint seeking prosecution of all the accused for the commission of offence under Section 138 of the Negotiable Instruments Act, on the ground that the borrowal is for the benefit of the 4th accused firm, in which all other accused are partners. 3. The sworn statement of the complainant was recorded and it was taken on file and the accused on appearance before the trial court, on summons, pleaded not guilty to the charge. During the course of trial, the complainant examined himself as PW1 and examined the Bank Manager of Karur Vysya Bank, Thanjavur Branch, as PWs 2 and 3 respectively and also marked Exs.P1 to P15. 4. All the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the prosecution and they denied it as false. 5. On behalf of the accused, no oral evidence was let in and no documents were marked. 4. All the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973, with regard to the incriminating circumstances made out against them in the evidence tendered by the prosecution and they denied it as false. 5. On behalf of the accused, no oral evidence was let in and no documents were marked. The trial court on consideration of oral and documentary evidence, has found that there is no legally enforceable debt on the part of the appellant/complainant, as he is running a money lending business without due licence and the concerned statute also prohibits him from doing so. The trial court citing the said reason, acquitted all the accused by judgment dated 30.09.2009 and hence this appeal. 6. The learned counsel for the appellant/private complainant would submit that admittedly in Ex.P1-Cheque, the Seal of the 4th respondent is found and the first accused also did not deny his signature, but he took a stand in Ex.P13-Reply Notice, that the borrowal from the complainant was for his personal use and not on behalf of the 4th respondent firm and on 25.04.2001, the complainant created a scene by abusing him and in order to get over the said difficulty only, the first accused has issued a Cheque with the Seal of the 4th accused firm. 7. It is the stand of the accused, since borrowal by the first accused was for his personal needs, it will not bind the 4th respondent firm in which other accused are partners and therefore it cannot be recovered from them. The trial Court has also accepted the same and held that there is no legally enforceable debt and citing the said reason, acquitted all the accused by judgment dated 30.09.2009 and aggrieved by the same, the complainant has filed this appeal. 8. The trial Court has also accepted the same and held that there is no legally enforceable debt and citing the said reason, acquitted all the accused by judgment dated 30.09.2009 and aggrieved by the same, the complainant has filed this appeal. 8. Learned counsel for the appellant has drawn the attention of this Court to the impugned judgment passed by the trial Court and would submit that major portion of the findings recorded by the trial Court are in favour of the appellant/complainant and however, the trial Court has misconstrued the fact and erroneously held that since the complainant is a professional money lender, he cannot carry on the said business without issuing any licence as required under Section 3 of the Tamil Nadu Money Lenders Act, 1957 and even as per his own admission, he did not possess the licence and therefore, the said debt cannot be recovered. 9. It is the submission of the learned counsel for the appellant that PW1/private complainant in the course of his testimony, has specifically stated that the accused were childhood friends and believing the representation only, he has advanced the loan and since it was only a causal transaction, there is no requirement of registration under the Tamil Nadu Money Lenders Act, 1957, and prays for interference. 10. Per contra, learned counsel for the first accused would vehemently contend that first accused while sending a reply in Ex.P13 to the notice dated 19.05.2001, took a specific stand that the Cheque in question pertains to his personal account and since on a particular day, the complainant abused him and degraded him, he was left with no other option except to issue the Cheque by putting the Seal of the 4th respondent firm and the lower court court has correctly recorded the finding that there is no legally enforceable debt. Hence, he prays for dismissal of the appeal. 11. This Court paid its' best attention to the rival submission and also perused the materials available on record in the form of typed set of documents. 12. Hence, he prays for dismissal of the appeal. 11. This Court paid its' best attention to the rival submission and also perused the materials available on record in the form of typed set of documents. 12. Perusal of the reply notice under Ex.P13 dated 29.05.2001 sent by the first accused, would disclose that he did sign in Ex.P1-Cheque dated 25.04.2001, but it is his stand that it pertains to his personal account and on account of abuse and degradation, he was forced to issue the Cheque by putting the Seal of the 4th respondent firm. Therefore, it cannot be termed as "legally enforceable debt". 13. It is to be pointed out at this juncture, the trial Court has chosen to acquit all the accused, solely on the basis that it is not a legally enforceable debt, as the appellant/private complainant has not registered himself under the Tamil Nadu Money Lenders Act, 1957 and consequently the amount advanced to the accused cannot be recovered in terms of the said statutory bar and consequently it cannot be termed as "legally enforceable debt''. 14. In the considered opinion of the Court, the said findings recorded by the trial court are required to be interfered with for the reason that admittedly, the Manager of the Bank in which accused No.1 is having the personal account was not examined. It is the specific plea of the appellant/complainant and also his oral evidence that all the accused were his childhood friends and believing the representation only, he has given them a loan of Rs.1,00,000/- and only after repeated request and demand only, the Cheque in question came to be issued and since it was a casual transaction, the provisions of Tamil Nadu Money Lenders Act, 1957 have no application at all. 15. In AIR 1973 Andhra Pradesh 144, (Somanath Baraman and others vs. V. Raja S.V. Jegannatha Rao), one of the issues arose was whether the suit for recovery of money is barred as offending the provisions of the Hyderabad Money Lenders Act. 15. In AIR 1973 Andhra Pradesh 144, (Somanath Baraman and others vs. V. Raja S.V. Jegannatha Rao), one of the issues arose was whether the suit for recovery of money is barred as offending the provisions of the Hyderabad Money Lenders Act. The Andhra Pradesh High Court after taking into consideration the number of decisions, held that "In deciding whether a particular transaction is one, which took place in the ordinary course of business or not, it has been held in several decisions that a stray or casual transaction by a person not possessing the licence would not amount to a transaction done in the ordinary course of business. It is relevant to extract paragraph 24 of the said judgment. "24. In that view their Lordships held, "taking into view the scheme and the provisions of the Act that a single and casual transaction of loan in a different district than the one in which the plaintiff has held the licence does not in any way prevent the plaintiff from recovering the said sum". It is no doubt true that not only the Full Bench decision of the Hyderabad High Court in AIR 1955 Hyd 113 (FB) but also the decision of their Lordships of the Supreme Court in Kaloji Talusappa v. Khyanagouda, AIR 1970 SC 1420 interpreting the very same Section 9 of the Hyderabad Money Lenders Act, clearly establish that if it is found that the plaintiff was carrying on business as a money-lender on the date of the transaction without a licence, the Court is bound to dismiss the suit." 16. As already pointed out, accused No.1 did not dispute the signature in the Cheque, but his only defence was on account of abuse and degradation, he was forced to issue the Cheque from his own personal account and put the Seal of the 4th respondent firm. However, the said defence has not been substantiated or probabilised, by letting in sufficient oral or documentary evidence. It is the stand of the other accused, since borrowal was not on behalf of the firm, it will not bind them. However, the Cheque in question has not been subjected to any forensic analysis to find out, whether the Seal of the 4th respondent Concern is fabricated or not and further, the first accused has also admitted his signature. It is the stand of the other accused, since borrowal was not on behalf of the firm, it will not bind them. However, the Cheque in question has not been subjected to any forensic analysis to find out, whether the Seal of the 4th respondent Concern is fabricated or not and further, the first accused has also admitted his signature. The transaction in question is to be treated as casual in nature, for the reason that it is the categorical evidence of PW1/complainant that all the accused were his childhood friends and believing the representation only, he has advanced a sum of Rs.1,00,000/-. Though the first accused, in his reply, pleaded discharge in respect of earlier transaction, he has not produced any materials to show that he discharged earlier debts due and payable to the appellant/complainant. 17. In the light of the reasons assigned above, this Court is of the considered view that the order of acquittal passed by the trial Court warrants interference. 18. In the result, the Criminal Appeal is allowed and the impugned judgment dated 30.09.2009 made in C.C.No.300 of 2006 on the file of the Judicial Magistrate No. II, Thanjavur, is set aside and the first respondent/accused is convicted for the commission of offences under Sections 138 r/w 142 of the Negotiable Instruments Act and he is directed to pay a compensation of Rs.1,00,000/- to the appellant/complainant, within a period of four weeks from the date of receipt of a copy of this order, failing which, he shall undergo a sentence of two months Simple Imprisonment.