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Bankmann 2004(2) 1
ANDHRA PRADESH HIGH COURT
K.C. Bhanu, J
Ratakonda Raghu Naidu — Appellant
versus
Kolla Sivaram Prasad and
another — Respondents
Cri Appeal No. 52 of 2000
Decided on 14.8.2003
Counsel for the Parties
For the Appellant :Mr. V. Hari Haran, Advocate.
For the Respondent No. 1:Mr. A. Rama Krishna Reddy, Advocate.
For the Respondent No. 2: Public Prosecutor.
IMPORTANT POINT
In the absence of cogent evidence, a money lending transaction in the friends circle does not make the lender as a “money lender” necessitating a licence for filing court cases.
Headnote:Negotiable Instruments Act, 1881—Sections 138, 118 and 139—Offence under Hyderabad Money Lender Act, Section 2—Money lender—Needing licence—Appellant lending money to respondent his friend to help in need—Loan returned by cheque—Bounced—Complaint u/s. 138—Dismissed as appellant lent as money lender without licence—Appeal against—Whether court below is right in its finding? (No) Appeal allowed—Conviction recorded u/s. 138—Sentenced to fine only.
Held: In the present case, it is not even the case of the accused that the appellant is a money lender or that he is doing money lending business or that he is continuing money lending transaction. It is not suggested to PW1 that he is doing money lending business. In the absence of such evidence, it cannot be said that the appellant is a money lender within the meaning of Section 2(7) of the Hyderabad Money Lenders Act. On the basis of an admission by the appellant that he lend money on interest to his friends who were in need of money, the Trial Court came to the conclusion that the appellant was lending money to some other persons also and since the appellant did not possess licence, the debt in question was not legally recoverable. But this finding cannot hold good in view of the above decision of the Division Bench of this Court that the definition of ‘money lender’ envisages only those persons whose regular business is to advance moneys and not those who advance moneys casually. There is no evidence on record to show that the regular business of PW1 is to advance moneys. He is an employee. His main source of income is his salary and not the interest amount he earns on moneys he advances to his friends who are in need of money. It is the case of PW1 that he lend the amount to the accused through his friend Satish Kumar. It can, therefore, be said that he lend the amount to the accused only through his friend. So in any view of the matter it cannot be said that the appellant is a money lender. The appreciation of the evidence as done by the Trial Court is not proper. Therefore, this Court has to interfere with the impugned order, as the offence under Section 138 of the Act is established beyond all reasonable doubt.
In the result, the accused is found guilty of the offence under Section 138 of the Act and accordingly is convicted under Section 138 of the Act. With regard to the sentence, learned Counsel for the accused submitted that the case was instituted about six years back and that the present financial capacity of the accused is not good and prays to take a lenient view by imposing fine. Having regard to the facts and circumstances of the case and considering the above submissions, this Court feels that imposition of fine would meet the ends of justice. The accused is sentenced to pay a fine of Rs. 5,000 within six weeks and in default of payment of fine to suffer simple imprisonment for six months. The appeal is thus allowed.
(Paras 15, 16)
Result: Appeal allowed.
K.C. Bhanu, J—The de facto complainant in C.C. No. 546/1998 on the file of XXIII Metropolitan Magistrate, Hyderabad, filed this appeal, aggrieved by the Judgment, dated 10.11.1999, of acquittal of 1st respondent accused.
2. The appellant filed a private complaint under sections 138, 141 and 142 of the Negotiable Instruments Act (for short, ‘the Act’) alleging that he got acquaintance with the accused through Mr. Satish Kumar. The accused approached him for a loan of Rs. 1,00,000 for his business needs with a promise to repay the amount on demand with insix months. Ac-cordingly, he paid Rs. 1,00,000 on 12.1.1997 with interest at 18 per cent per annum. The accused duly executed a promissory note and issued a cheque bearing No. 204675, dated 25.9.1997 drawn on State Bank of India, Yellareddyguda Branch, Hyderabad, for Rs. 1,00,000/-. When the appellant presented the cheque in the bank it was returned, unpaid with an endorsement “funds insufficient”. Therefore, he got issued a legal notice, dated 25.10.1997. Though the accused received it he did not pay the amount nor given any reply. Therefore, the complainant flied the complaint. On behalf of the complainant, P.Ws. 1 and 2 were examined and Exs. P1 and P7 were marked. The accused examined DW 1 besides examining himself as DW2. The Trial Court after hearing both sides and considering the evidence on record came to the conclusion that the complainant did not possess money lending business and, therefore, the amount lent by him to the accused was not a legally recoverable debt. The Trial Court also held that the promissory notes and cheques, for the dishonour of which two more complaints were filed against the accused, and the promissory note and the cheque in this case were all written by one and the same person and the attesting witnesses in all the three cases were also one and the same, and thus blank cheques and the promissory notes were issued at one time. The Trial Court inter alia on this ground acquitted the accused by its Judgment, dated 10.11.1999, chal-lenging the legality and correctness whereof the complainant filed the present appeal.
3. Learned Counsel for the appellant contended that the accused admitted that he had issued the cheque in question and, therefore, the burden is on him to show that it was not issued for any legally enforceable debt or liability, that the appellant lent the money through Satish Kumar, that the appellant is not doing money lending business and so the Hyderabad Money Lending Act has no application to him, and that DW1 did not say that the cheque and the promissory note were not given to the appellant, , and so the Trial Court committed a serious illegality in acquitting the accused. On the other hand, learned Counsel for the accused contended that the appellant is the employee of Surendra with whom the accused was having “Badla” transactions in which connection the accused had to pay certain amount to Surendra, that in Order to discharge that debt, the accused gave blank promissory notes and cheques to Surendra as security, that the appellant making use of those promissory notes and cheques filed the present complaint though there was no legally enforceable debt or liability insofar as the accused and the appellant is concerned, that the attestors of all the promissory notes were the same, that there is no evidence on record to show that the appellant was capable of lending such huge amount to the accused, and that the alleged transaction amounts to money lending within the meaning of Hyderabad Money Lending Act and the appellant did not possess money lending licence, and so the appeal should be dismissed.
4. The complaint is filed under Section 138 of the Act. To constitute an offence incorporated in the main enacting clause of that section, three conditions have to be satisfied. They are—(1) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its vali
