2012 Supreme(Bom) 1704

In the High Court of Bombay at Goa
A.P. LAVANDE
Sheikh Shabbir
Versus
Shaikh Yusuf
Criminal Appeal No.56 of 2010
Decided On : 10-09-2012

Headnote:Goa Money Lenders Act, 2001 - Section 2(1) - Negotiable Instruments Act, 1881, Section 138 - Money lending transaction.

       Since returning of principal amount by accused, which was advanced by complainant to him in terms of memorandum of understanding cannot be termed as money lending transaction hence it would not hit by Section 2(1) of Act.

       Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque.

       Where legal notice to accused was issued on correct address therefore merely because on slip issued by Postal Authorities different address was mentioned, it cannot be held that notice not addressed o n correct address. - Mere fact that on the slip issued by postal authorities different address is mentioned, by itself would not be sufficient to hold that notice was not addressed on the correct address inasmuch as the slip is prepared by the postal department and what is important is the address mentioned on the letter and A.D. slip and not the address mentioned on the slip issued by the Postal Authority.

       Negotiable Instruments Act, 1881 - Sections 138 and 142(b) - Complaint for dishonour of cheque.

       Where complainant was informed on 30.6.2009 that notice dated 18.5.2009 was delivered to accused on 19.5.2009 therefore complaint filed on 4.7.2009 well within limitation. - In terms of Section 138 of the Act, it is mandatory for the complainant to give notice in writing to the drawer of the cheque, within 30 days of the receipt of the information by him regarding return of the cheque as unpaid. In terms of Section 142(b), the complaint has to be filed within one month of the date on which the cause of action arises under clause(c) Proviso to Section 138 of the Act.

       In the present case, the complainant has proved that Registered Post A.D. notice was issued on 18.5.2009. He also produced a communication dated 30.6.2009 which has been reproduced above. It is therefore, evident that the complaint was made by the complainant regarding non-delivery of acknowledgment card and it was only on 30.6.2009 that he was informed that the notice dated 18.5.2009 was delivered on 19.5.2009. The complaint filed on 4.7.2009 was well within limitation inasmuch as unless the complainant comes to know about either the delivery or refusal by the accused of the notice, he is not in a position to file the complaint. When notice is given under Section 138 either notice is received by the accused or it is refused by the accused or it is unclaimed.

       In case the complainant receives the A.D. card, there is no difficulty in computing the period of limitation provided in clause (b) of Section 142 of the Act. However, in case the complainant does not receive A.D. card he is not aware as to when the accused has received the notice or whether the accused has refused the notice or whether the notice is unclaimed. In such an eventuality complainant is not entitled to file complaint for the offence punishable under Section 138 of the Act.

       Criminal Procedure Code, 1973 - Section 374 - Negotiable Instruments Act, 1881, Section 138 - Appeal - Against acquittal - Trial Court by its judgment and order dated, 31.12.2009 acquitted respondent/accused for offence under Section 138 of Act - Contention that order of acquittal totally perverse and deserves to be interfered with in appeal - Magistrate not correctly formulated points for determination.

       In pursuance of MOU dated 25.7.2008. Rs. 5 lacs taken by accused from complainant -Accused agreed to pay complainant Rs. 25,000/- in equal monthly instalments in form of 50 post date d cheques - Cheques issued by accused from his account - Dishonoured by Bank on presentation - Transaction entered into between complainant and accused not renders complainant "money lender" in terms of Goa Money Lenders Act, 2001 - Magistrate committed patent illegality in coming to a finding that transaction hit by Act 2001 - View taken and findings recorded by Magistrate while acquitting accused patently illegal and unsustainable - Impugned judgment and order quashed and set aside - Accused convicted for offence under Section 138 of Act -sentenced to suffer simple imprisonment for period of three months and to pay compensation of Rs. 6 lacs to complainant - Appeal allowed.

       The version given by the complainant is probable one and the complainant has deposed so on oath. Once it is established that the accused had given a signed cheque for Rs. 5 Lakhs to the complainant, it was for the accused to establish under what circumstances, the said cheque was given to the complainant. It has not been suggested by the accused to the complainant that the amount and the date in the cheque were written by the complainant. This being the position, the accused has not come with plausible explanation regarding the issuance of cheque of Rs. 5 Lakhs to the complainant. On the contrary, the version given by the complainant appears to be more probable. Perusal of memorandum of understanding discloses that the same was entered into between the parties since the accused requested the complainant to advance Rs. 5 Lakhs to be invested in the business already conducted by him and promised to pay profits by issuing cheques in the sum of Rs. 12,50,000/-. In other words, the accused agreed to repay the amount with interest at 3% per month. But it is the case of the complainant that since the accused did not pay any amount, he requested the accused to return principal amount he owed, by issuing the cheque in question. The version given by the complainant is quite probable and in the absence of any plausible explanation coming from the accused as to the circumstances in which the said cheque was issued. If that be the case, returning principal amount of Rs. 5 Lakhs which was advanced by the complainant to the accused in terms of the memorandum of understanding, cannot be termed as money lending transaction. The transaction entered into between the complainant and accused would not render the complainant ’money lender’, in terms of Section 2(1) of the Goa Money Lenders Act, 2001, having regard to the nature of transaction entered into between the complainant and the accused. Merely because Section 31 stipulates that maximum rate of interest which can be fixed by the Government in case of money lending should not exceed 24% per annum, by itself would not be sufficient to hold that the transaction entered into between the complainant and the accused in terms of memorandum of understanding dated 25.7.2008 was a money lending transaction. Therefore, Magistrate has committed patent illegality in coming to a finding that the transaction was hit by the Goa Money Lenders Act, 2001.

       In the case of C.C. Alavi Haji V. Palapetty Muhammed and another, (2007) 6 SCC 555, the Apex Court has held that any drawer who claims that he did not receive the notice sent by post, can within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons and, therefore, the complaint is liable to be rejected. The Apex Court further held that a person who did not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, could not obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. The Apex Court further held that another interpretation of the proviso would defeat the object of the Legislature and referred to the case of K. Bhaskaran (supra). The Apex Court held that ’giving of notice’ in the context of clause (b) of proviso was not the same as ’receipt of notice’: the trickster cheque drawer would get premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act.

       Thus, upon re-appreciation of the entire evidence, held that the complainant has been able to establish the ingredients of Section 138 of the Act beyond reasonable doubt against the accused. Therefore, the view taken and findings recorded by Magistrate while acquitting the accused, are patently unsustainable in law and, therefore, deserve to be quashed and set aside and the accused is liable to be convicted for the offence punishable under Section 138 of the Act. The accused is convicted for the offence punishable under Section 138 of the Act.

       Criminal Procedure Code, 1973 - Section 167(2) - Bail. - Where complete charge sheet against applicant Police Officer accused of committing offence under Sections 201, 204, 409, 436, IPC was submitted to Magistrate and Magistrate taken cognizance therefore only because prayer for further investigation was made, applicant has no right to claim bail.

       Criminal Procedure Code, 1973 - Sections 173(2) and 175(5) - Report under Section 173(2). - If report under Section 173(2) of Code is accompanied with all documents and statements of witnesses as required by Section 175(5) of Code, report is complete.

       Criminal Procedure Code, 1973 - Section 374 - Negotiable Instruments Act, 1881, Section 138 - Appeal - Against acquittal - Trial Court by its judgment and order dated, 31.12.2009 acquitted respondent/accused for offence under Section 138 of Act - Contention that order of acquittal totally perverse and deserves to be interfered with in appeal - Magistrate not correctly formulated points for determination. - In pursuance of MOU dated 25.7.2008. Rs. 5 lacs taken by accused from complainant - Accused agreed to pay complainant Rs. 25,000/- in equal monthly instalments in form of 50 post dated cheques - Cheques issued by accused from his account - Dishonoured by Bank on presentation - Transaction entered into between complainant and accused not renders complainant "money lender" in terms of Goa Money Lenders Act, 2001 - Magistrate committed patent illegality in coming to a finding that transaction hit by Act 2001 - View taken and findings recorded by Magistrate while acquitting accused patently illegal and unsustainable - Impugned judgment and order quashed and set aside - Accused convicted for offence under Section 138 of Act - sentenced to suffer simple imprisonment for period of three months and to pay compensation of Rs. 6 lacs to complainant - Appeal allowed. - The version given by the complainant is probable one and the complainant has deposed so on oath. Once it is established that the accused had given a signed cheque for Rs. 5 Lakhs to the complainant, it was for the accused to establish under what circumstances, the said cheque was given to the complainant. It has not been suggested by the accused to the complainant that the amount and the date in the cheque were written by the complainant. This being the position, the accused has not come with plausible explanation regarding the issuance of cheque of Rs. 5 Lakhs to the complainant. On the contrary, the version given by the complainant appears to be more probable. Perusal of memorandum of understanding discloses that the same was entered into between the parties since the accused requested the complainant to advance Rs. 5 Lakhs to be invested in the business already conducted by him and promised to pay profits by issuing cheques in the sum of Rs. 12,50,000/-. In other words, the accused agreed to repay the amount with interest at 3% per month. But it is the case of the complainant that since the accused did not pay any amount, he requested the accused to return principal amount he owed, by issuing the cheque in question. The version given by the complainant is quite probable and in the absence of any plausible explanation coming from the accused as to the circumstances in which the said cheque was issued. If that be the case, returning principal amount of Rs. 5 Lakhs which was advanced by the complainant to the accused in terms of the memorandum of understanding, cannot be termed as money lending transaction. The transaction entered into between the complainant and accused would not render the complainant ’money lender’, in terms of Section 2(1) of the Goa Money Lenders Act, 2001, having regard to the nature of transaction entered into between the complainant and the accused. Merely because Section 31 stipulates that maximum rate of interest which can be fixed by the Government in case of money lending should not exceed 24% per annum, by itself would not be sufficient to hold that the transaction entered into between the complainant and the accused in terms of memorandum of understanding dated 25.7.2008 was a money lending transaction. Therefore, Magistrate has committed patent illegality in coming to a finding that the transaction was hit by the Goa Money Lenders Act, 2001.

       In the case of C.C. Alavi Haji v. Palapetty Muhammed and another, (2007) 6 SCC 555, the Apex Court has held that any drawer who claims that he did not receive the notice sent by post, can within 15 days of receipt of summons from the Court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons and, therefore, the complaint is liable to be rejected. The Apex Court further held that a person who did not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, could not obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. The Apex Court further held that another interpretation of the proviso would defeat the object of the Legislature and referred to the case of K. Bhaskaran (supra). The Apex Court held that ’giving of notice’ in the context of clause (b) of proviso was not the same as ’receipt of notice’: the trickster cheque drawer would get premium to avoid receiving the notice by different strategies and he could escape from the legal consequences of Section 138 of the Act.

       Thus, upon reappreciation of the entire evidence, held that the complainant has been able to establish the ingredients of Section 138 of the Act beyond reasonable doubt against the accused. Therefore, the view taken and findings recorded by Magistrate while acquitting the accused, are patently unsustainable in law and, therefore, deserve to be quashed and set aside and the accused is liable to be convicted for the offence punishable under Section 138 of the Act. The accused is convicted for the offence punishable under Section 138 of the Act.