SAJAL GUHA Vs. AMAL KRISHNA PAUL

JUDGEMENT

(1.) A judgment dated September 28, 2012, in connection with a case under Sec. 138 of the Negotiable Instruments Act, 1881, of reversal and acquittal passed by the Additional Sessions Judge, Fast Track, 4th Court, Alipore at South 24-Parganas, in Criminal Appeal No.19 of 2011 is under challenge in this appeal, which the defendants/defence defend and the appellant/complainant has assailed.

(2.) The first appellate Court has been hearing the Criminal Appeal No. 19 of 2011, in which a judgment dated January 28, 2011, passed by the Judicial Magistrate, 5th Court at Alipore in Complaint Case No.4608 of 2005 for an offence punishable under Sec. 138 Negotiable Instruments Act, 1881, was challenged.

(3.) Ms. Mitra, appearing for the appellant has argued that the appellant is specifically aggrieved due to the finding of the first appellate Court in the judgment as above, that the appellant/complainant's allegations are hit by the provisions under the Bengal Money Lenders Act, 1940, and would not be sustainable. She says that the first appellate Court in the said judgment has erred in finding that the appellant was duty bound to produce his money lender's certificate in the Court to substantiate his claim that in pursuance of his business, he has advanced loan to the respondents and a cheque was issued by them to pay back such a legally enforceable debt. Ms. Mitra says that the provisions of Bengal Money Lenders Act, 1940, would not be applicable in a case under Sec. 138 of the Negotiable Instruments Act, 1881, and the entire proceedings before the Magistrate would be independent and exclusive of any embargo what so ever, under The Bengal Money Lenders Act, 1940. Ms. Mitra says that the merits of the case was required to be considered independently though the first appellate Court has misdirected itself to appreciate this settled legal position, while delivering the judgment impugned.