RAJ EXPORTS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The only issue arisen in this Appeal is whether solitary transaction of lending money can be said to be money lending transaction within purview of the Bombay Money Lenders Act, 1946 because carrying on business of money lending without obtaining license amounts to offence under the provisions of sec. 32B of the Act. So also the provisions of Sec. 10 of the said Act put fetters on the power of Court to pass decree in favour of money lender in any suit unless a money lender holds valid license. In other words, if money is lent without license as part of money lending business and if the cheque is issued towards discharge of that debt, it cannot be said as legally recoverable debt and the prosecution under Sec. 138 of NI Act will not be maintainable.

(2.) This issue has arisen in Summary Case No.811 of 2002 filed before the Court of 5th Judicial Magistrate, First Class, Thane. The Appellant was complainant and present Respondent was accused therein. The trial Court has not treated money advanced by the complainant as part of money lending business and on proof of other ingredients, convicted Respondent No.2- accused for offence punishable under Sec. 138 of NI Act to rigorous imprisonment for one month and fine for Rs.5,000.00.

(3.) There was an Appeal filed by the accused against this order of conviction whereas the complainant preferred revision for enhancement. The Court of Additional Sessions Judge as per judgment dtd. 28/6/2004, was pleased to set aside the conviction and dismiss the complaint consequently, revision was also dismissed. The correctness of this judgment is challenged by original complainant before this Court.