The central legal point established in the judgment is that carrying on money lending business without a license renders the loan transaction not enforceable under Section 138 of the Negotiable Instrument Act, 1881.

ORDER :

1. This Acquittal Appeal has been preferred against the judgment dated 31.01.2014 passed by the Judicial Magistrate First Class, Durg (C.G) in Complainant Case No.64/2011, whereby the respondent/accused has been acquitted of the charge under Section 138 of the Negotiable Instrument Act, 1881.

2. Brief facts of the case are that the complainant/appellant and the respondent/accused were familiar to each other and on 15.04.2011 the complainant has advanced the friendly loan for the personal needs to the respondent/accused to the tune of Rs.11,000/- in cash. The respondent/accused has promised to return the same within a period of one month. When he failed to return the said money within the stipulated period, he gave a cheque of Rs.11,000/- vide Ex-P/1 to discharge the said liability on demand. On 25.05.2011 the complainant presented the said cheque before the bank vide Ex-P/2. On 27.05.2011, the Bank has informed about the dishonour of cheque due to insufficiency of the fund vide Ex-P/3. Thereafter, a legal notice was sent on 28.05.2011 to the respondent/accused Ex-P/4 and a demand of the cheque amount was also made, however, when the respondent/accused failed to pay the said amount within 15 days, when the complaint has been filed on 20.06.2011.

3. After registration of the case, during trial, the respondent/accused abjured his guilt and claimed to be tried.

4. In order to prove his case, the witness has been examined and the statement of the respondent/accused was recorded under Section 313 of the Cr.P.C wherein he has taken a defence that the complainant has received blank cheque and the same has been misused. After evaluting the evidence, the trial Court has acquitted the respondent/ accused. Hence this appeal by the complainant.

5. Learned counsel for the complainant/appellant would submit that the complainant has proved the necessary ingredients of Section 138 of the Negotiable Instrument Act, 1881 as the cheque was duly issued by the respondent/accused and presumption under Section 139 of the said Act attracts in favour of the holder. The learned trial Court only on the basis that for the earlier loan a written agreement was executed but for the present loan no such written instrument has been executed, acquitted the respondent of the charge. He also submits that acquittal of the respondent/accused is not proper. Learned counsel prays to allow the appeal.

6. I have heard learned counsel for the complainant/appellant and also perused the record with utmost circumspection.

7. Complainant B.B Sharma in his cross-examination has stated that he was doing a job of dresser for the last 15-20 years and from the said work, he used to earn Rs.200-500/- per day. He categorically denies that he was also doing business of the money lending but he corrected his statement and stated that he is having money lending license which he has got prepared five years ago, but during the trial, he has not produced any such license.

8. Complainant in the cross-examination, at para-35, further admits that he has also advanced loan to various persons namely, Chandra Shekhar, Ramratan, Leeladhar, Sunita, Chitaiyya, Lakshman Ratre, Dhani Ram, Tumar Sidar, G.D Rao, Gopika, Yashwant, A. Dandashi, Rajesh, Johan, Uttam, Churaman, Abhay and Sohan Lal. He further admits that he has also preferred criminal cases for dishonour of cheque under Section 138 of the Negotiable Instrument Act against the said persons but he could not state as to how much amount he has advanced to such persons and admits that from some persons at the time of advancing the loan a written instrument has been executed. The complainant further admits that on the complaint of one Rohit, a criminal case has been registered at Police Station- Nevai District-Bhilai (C.G) in a fraudulent manner that he has withdrawn money to the tune of Rs.2 lac and in the said case, the complainant stated that he has compromised with said Rohit. He further admits that Gori Shankar has also issued a legal no