Criminal Application No. 1693 of 2010

25th July, 2011

Petitioner Counsel: Mr. A.S. Chandurkar
Respondent Counsel: Mr. A.M. Ghare

Cases Cited:
Smt. Nanda w/o. Dharam Nandanwar Vs. Nandkishor s/o. Talakram Thaokar, Criminal Appeal No.467 of 2009, Dt. 12.1.2010 [Para 3]
Anil s/o. Baburao Kataria Vs. Purshottam s/o. Prabhakar Kawane, 2010 ALL MR (Cri) 802 [Para 4]
Abhay Prabhakar Lele Vs. Raosaheb Mahaveer Chimanna, 2008 ALL MR (Cri) 237 [Para 5]

JUDGMENT

JUDGMENT :- 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.

4. The learned Advocate for the respondent/complainant submitted that the question of fact and law as to whether the complainant is involved in unautorised money lending transactions or has committed any illegality by advancing loans is a question to be decided on merits in a trial. He made a reference to the ruling in the case of Anil s/o. Baburao Kataria Vs. Purshottam s/o. Prabhakar Kawane reported in 2010 ALL MR (Cri) 802, where this Court had refused to grant leave to appeal in a case arising from dismissal of the complaint after making a reference to the provisions of the Negotiable Instruments Act, 1881 as well as the Bombay Money Lenders Act, 1946.

5. Learned Advocate for the respondent/complainant also made a reference to the case of Abhay Prabhakar Lele Vs. Raosaheb Mahaveer Chimanna reported in 2008 ALL MR (Cri) 237 in order to submit that the issue as to existence of a debt or legally enforceable liability with reference to dishonored cheque is a mixed question of law and fact. The presumption which is drawn in favour of the complainant survives till the contrary is proved by the accused on the basis of evidence and cross-examination of the complainant. Thus, the trial Magistrate will have to decide the questions of fact and law on the basis of evidence which the parties may choose to adduce in the trial Court. Under these circumstances, the applicant cannot invoke inherent powers u/s.482 of the Code of Criminal Procedure which are to be exercised sparing with abundant caution.

6. I have considered the contentions advanced as also the rulings cited. In my opinion, the mixed question of law and fact as mentioned above as also the question as to whether the complainant was indulging into illegal money lending transactions or unauthorised money lending or committed any illegality apart from the question as to proof of essential ingredients of the offence punishable u/s. 138 of the Negotiable Instruments Act shall be required to be dealt with on merits by the learned trial Magistrate. Looking into the averments made in the complaint in this case, it appears averred that the cheque was issued by the accused under his signature, which the complainant had presented to his banker, which was returned dishonored with remark "insufficient funds and stop payments", the demand notice dt.3.6.2006 issued and further averment that the amount remained unpaid despite due service of notice, such averments in totality in the complaint do make out a prima facie case to entertain the complaint; to proceed further under Chapter XV of the Code and to conduct the trial. That being so, I do not find any exceptional ground for to exercise inherent powers u/s. 482 of the Code of Criminal Procedure. It is a settled legal position that the inherent powers can be exercised only in the rarest of rare case with abundant caution and only when it is necessary. The application, therefore, lacks merits.

7. In view of the above, the Criminal Application is dismissed.

8. It is expected that the learned trial Magistrate shall endeavor to dispose of Summary Criminal Case No.549 of 2009 pending before him expeditiously on merits in accordance with law.

Application dismissed.