PRASHANT Vs. HASMUKH SHYAMJI WAGHELA

JUDGEMENT

(1.) Taken up for final hearing forthwith by consent. Heard Mr.A.S.Chandurkar, Adv. for the applicant and Mr.A.M.Ghare, Adv. for the respondent.

(2.) By this application under Section 482 of the Code of Criminal Procedure, the applicant has prayed to quash and set aside the Summary Criminal Case No.549 of 2009 on the ground that the proceedings u/s.138 of the Negotiable Instruments Act is not maintainable as the complainant can succeed only on the basis of legally enforceable liability. According to the learned Advocate for the applicant, the respondent/complainant was indulging into unauthorised money lending transactions and had instituted various complaints against various persons and since he was doing money lending transactions illegally and unauthorisedly, the complaint proceedings ought to be quashed and set aside for absence of legally enforceable liability. It is also submitted that u/s. 269-ss of the Income Tax Act, 1961, it is impermissible to advance loan exceeding the sum of Rs.25,000/- except by an account payee cheque. Thus, on the ground of illegal money lending activity, the learned Advocate for the applicant has prayed to quash and set aside the proceedings in Summary Criminal Case No.549 of 2009 pending on the file of learned Judicial Magistrate, First Class (Court No.6), Akola.

(3.) The learned Advocate for the applicant made a reference to the unreported judgment delivered by Bombay High Court in Criminal Appeal No.467 of 2009, Smt. Nanda w/o. Dharam Nandanwar vs. Nandkishor s/o. Talakram Thaokar , decided on 12.1.2010 in order to submit that this Court had, by detailed judgment and order, held that the cheque in that case was not issued to discharge loan enforceable according to law and that transaction cannot come within the purview of Section 138 of the Negotiable Instruments Act. It appears that it was the appeal which was filed against the Judgment and order of acquittal dt. 26.3.2009 passed by the learned Judicial Magistrate, First Class, Nagpur in Criminal Complaint Case No.9037 of 2007. This Court had refused to interfere with the judgment and order of acquittal on merits.