The central legal point established in the judgment is that the status of the complainant as a money lender without a license should not be the sole basis for dismissing a complaint under Section 138 of the Negotiable Instruments Act, 1881.

JUDGMENT

H.S. Madaan, J. - Briefly stated, facts of the case are that complainant Ravinder Paul son of Sh. Avinash Chander, resident of Dashmesh Nagari, Jalalabad (West), District Ferozepur had brought a complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) read with Section 420 IPC against accused Ashwani Kumar son of Babu Ram, resident of Juneja Street near old Telephone Exchange, Jalalabad(West), District Ferozepur. Inter alia in the complaint, the complainant contended that on account of friendly relations between him and the accused, the latter raised a friendly loan of Rs.20,000/- from the former for his domestic needs and promised to repay the loan within short period; that in order to discharge his liability towards aforesaid debts, the accused issued cheque No.074744 dated 26.5.2007 in the sum of Rs.20,000/- drawn from his account with State Bank of India, Branch Jalalabad in favour of the complainant giving an assurance at that time that on presentation, the cheque would be encashed; the complainant accordingly presented the cheque with Oriental Bank of Commerce, Branch Jalalabad on 26.5.2007 but the cheque was dishonoured due to insufficiency of funds in account of the accused; the complainant was informed accordingly vide memo dated 26.5.2007 from the banker of accused and banker of the complainant informed him on 29.5.2007; thereafter the complainant approached the accused with a request to make the payment of the cheque amount but he did not do so; the complainant accordingly served a legal notice upon the accused calling upon him to make the payment of the cheque amount within 15 days of receipt of notice but to no effect; ultimately the complainant brought the complaint in question against the accused in the Court of law.

2. After recording of preliminary evidence, accused was summoned to face trial and he accordingly put in appearance. Notice of accusation was served upon and the case was fixed for evidence of the complainant. The complainant led oral as well as documentary evidence. Thereafter, the statement of accused under Section 313 Cr.P.C. was recorded wherein all the incriminating material brought on file put to him but he denied the same stating that he had been falsely involved in this case. During his defence evidence, learned defence counsel had tendered in evidence the information dated 8.7.2010 regarding the complaints instituted by the complainant under Section 138 of the Act as Ex.Dl.

3. After hearing arguments, the trial Magistrate dismissed the complaint and in the process acquitted the accused vide judgment dated 26.8.2010.

4. The main reason for dismissal of the complaint was that the complainant is a money lender and the alleged advance stated to have been made by him to the accused could not be considered to be out of the purview of the money lending business of the complainant. Ultimately learned trial Magistrate referring to judgment Anil Baburao Katatia vs. Purshottam Prabhakar Kawane, 2010(2) RCR 843 by Bombay High Court concluded that upon strength of evidence on the parties, it is to be stated that there is a grave doubt on record regarding the requisite registration of the complainant under the Punjab Registration of Money Lender's Act, 1938, therefore benefit thereof is to be afforded to the accused. Accordingly, dishonouring of the cheque said to have been issued by the accused in favour of the complainant was not covered under the mischief contemplated by Section 138 of the Act as the debt/liability in the discharge of which the cheque is stated to have been issued, could not be stated to be a legally enforceable debt or liability as required for the attraction of provisions of Section 138 of the Act and the complainant was proved to be a money lender and the case of the complainant fell short of the requisite standard of proof on account of the fact that there is no evidence regarding the registration of the complainant under the Pun