Advocates:
['B P SHARMA', '', 'VIVEK CHOPDA', 'MANISH THAKUR']

1

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CR.M.P. No. 642 of 2015

1. Ismail Mohammed, S/o. Late Nisar Mohammed, Aged About 47

years, C/o. M/s Ismail Brothers, Gulmohar Park, Ram Nagar,

Gudhiyari, Raipur, Tahsil & District Raipur, Civil And Revenue

District- Raipur, Chhattisgarh

---- Petitioner

Versus

1. Aumit Kumar Daga, Aged about 37 years, S/o Shri Sunil Kumar

Daga, R/o E-601, Palm Residency, Rajendra Nagar, Raipur,

Tahsil & District Raipur

---- Respondent

For Petitioner : Shri B.P. Sharma and Shri Vivek Chopda, Advocates

Hon'ble Shri Justice Goutam Bhaduri

Order On Board

29/07/2015

1.

Heard on admission.

2.

Challenge in this petition is to the order dated 18^th June 2015

passed by 9^th Additional Sessions Judge, Raipur (C.G.) in

Criminal Revision No. 47/2015 whereby an order passed by the

Judicial Magistrate First Class dated 11/12/2014 in Criminal

Complaint No.4246/2014 under Section 138 of Negotiable

Instrument Act, 1881 was under challenge by the petitioner.

2

3.

Learned counsel for the petitioner contended that in criminal

complaint under Section 138 of Negotiable Instrument Act was

filed by the respondent Amit Kumar Daga. The counsel would

submit that after entering appearance in such complaint, an

application under Section 91 of Cr.P.C. was filed by the petitioner

and the balance sheet of the complainant (respondent) and

Income Tax Return of the complainant (respondent) was called

for. It was further prayed that since under the Chhattisgarh Money

Lenders Act, 1934 the complainant was under obligation to

maintain the account and get the registration through the

Tahsildar and in absence of that liability can not be enforced.

Learned counsel further contended that according to Section 11 of

the Money Lenders Act, the registration is compulsory for money

lending and if there is contravention of the Money Lenders Act

and the person carries on the business of money lending then it

would attract penalty.

4.

It is further submitted that the documents requisitioned are

necessary to prove the status of the complainant and to

substantiate that no amount of loan was taken by the petitioner.

The counsel would further submit that mandatory notice required

under Section 138 of Negotiable Instrument Act was not served to

the accused, before filing of the complaint. It is contended that the

notice was not delivered as the endorsement was not claimed. It

3

was therefore, contended that the delivery of statutory notice was

not made so the cause of action to file the complaint has not

accrued. The counsel placed his reliance in the matter of Rahul

Builders Vs. Arihant Fertilizers & Chemicals and Another,

(2008) 2 SCC 321 and would submit that demand made in notice

is too vague and therefore, the omnibus demand will not satisfy

the requirement of demand as contemplated before filing.

Consequently, the entire proceeding of the Criminal Case No.

4246/2014 including the order dated 11/12/2014 be quashed.

5.

Heard on admission.

6.

Perused the documents and the order. The status of compliant

shows that the stage of complaint is it's inception. The records

shows that on a complaint filed under Section 138 of Negotiable

Instrument Act, the petitioner has entered his appearance and

thereafter has filed an application under Section 3(a) (b) read with

Section 11 B of Money Lenders Act , 1934 read with Section 254

(2) of Cr.P.C. By such application the petitioner sought to call for

the entire account and the documents of Tahsildar and the

registration certificate issued by the Tahsildar under the Money

Lenders Act. The perusal of the document filed by the petitioner

whereby certain documents were called for would show that such

application was moved on the presumption that the respondent

4

who filed the complaint under Section 138 of Negotiable

Instrument Act carries o