BABA FINANCE CORPORATION Vs. MOHD NAYEEM

JUDGEMENT

(1.) This matter was in the hearing list on 18-11-1996 and none appeared for the appellant and respondent. In those circumstances, I went through the entire papers and posted the matter on 19-11-1996 for judgement expecting that Counsel may appear and argue their respective cases. Thereafter, matter was in the list. It was also on the list on 25-11-1996, none appeared on that day. In those circumstances, it is posted today i.e., on 26-11-1996. Today also nobody appeared for the parties. The learned Public Prosecutor who is present before this Court submits that he is only a formal party since it is a private complaint case filed by the appellant.

(2.) Again I went through the entire record. From the record it is clear that the present appellant by name Messers Baba Finance Corporation filed a complaint under Section 200 Cr .P.G against the respondent Mohammad Nayeem alleging that the respondent has committed offence under Section 138 read with Section 142 of Negotiable Instruments Act. On behalf of the complainant, he examined P.W. 1 V.S. Ravi Kumar, said to be i ts Managing Partner as PW-1 and got certain documents marked. Ex.P-1 is an application given by the respondent for sanction of loan, Ex.P-2 is a Promisory Note, Ex.P-3 is a cheque issued by the accused and P-4 is an endorsement of the Bank stating that there are no sufficient funds and accordingly P-5 notice was issued by the complainant to the accused and the same has been acknowledged under Ex.P-6. On the basis, it is urged on behalf of the complainant that accused has committed an offence under Section 138 read with Section 142 of Negotiable Instruments Act.

(3.) On behalf of the sic (accused) no witness is examined nor any document is marked. However, two legal contentions are raised on behalf of the sic (accused). The first contention is that the complainant firm being money lender and without obtaining licence under Section 3 of the Andhra Pradesh (Telangana Area) Moneylenders Act, 1349 Fasli.,the complainant is not entitled to maintain the present complaint, since without licence, the complainant cannot enforce any right under the impugned transaction. Secondly, it was contended that the complainant is unregistered partnership firm and as such it could not maintain the present proceedings under Section 69 (2) and 69(3) of the Indian Partnership Act, 1932. Thirdly, on merits, it was contended that the complainant on the basis of the material placed on record not proved legally enforceable debtor liability. All these three contentions were accepted by the IX Metropolitan Magistrate and accordingly dismissed the complaint by acquitting the respondent/accused vide order dated 3-9-1994. It is in those circumstances, the complainant preferred this appeal.