Ashok Shekhar v. The State of Maharashtra

In the present criminal Revision purportedly have been 1 filed under provisions of section 482 of Criminal Procedure Code the order passed by the 44th Metropolitan Magistrate Court, Andheri in C.C.No.417/SS/2004 on 1st August, 2006 and which was upheld in criminal Appeal No.703 of 2006 by the Sessions Court, Mumbai on 30th September, 2008, is challenged.

Heard rival submissions for some time. It is the matter arising out of the bouncing of cheuqe of Rs.1 lakh and punishable under section 138 of the Negotiable Instruments Act (The N.I.Act for short). The learned Metropolitan Magistrate, Andheri convicted the present Petitioner/accused and sentenced him to suffer one day imprisonment till rising of the Court and to pay compensation of Rs.1 lakh to the original complainant. Reportedly, one days imprisonment is already undergone and out of compensation amount Rs.1 lakh, an amount of Rs.75,000/- has already been deposited with the Trial Court and also before this Court in the proportion of Rs.50,000/- and Rs.25,000/-respectively.

The main gravamen of arguments on behalf of the Petitioner is that present transaction of advancing a loan of Rs.1 lakh by the complainant to the accused Petitioner is governed by the provisions of Bombay Money Lending Act, 946 and as such there is no any legally enforceable debt as contemplated by section 138 of N. I. Act. Secondly, it is submitted that there was a material alteration on the cheuqe and as such there was no liability of the Petitioner to pay any amount in as much as it was the blank cheque. In order to 2 substantiate the statement as to not having any legally enforceable liability, following authorities are cited before the Court 988 Andhra Pradesh High Court in case of Taher N.Khambati v/ s.M/s.Vinayak Enterprises, Secunderabad, 2003 All MR (Cr.) Journal 105, Andhra Pradesh High Court in case of Avon Organics, Hyd. Ltd. V/s.Poineer Products Ltd.& Ors., 2008 ALL MR(Cri.) 1486 in case of Hanumant R.Naik V/s.Ajit Harmalkar, 2000 CRI.L.J.257 in case of Narinder Kumar V/s. Harnam Singh and 2004 CRI.L.J.4019 in case of M/s.Krishnam Raju Finances, Hyderabad V/s.Abida Sultana & Anr. And 1998(4) Crimes 156 in case of Bhaskaran Chandrasekharan V/s.Radhakrishnan.

Still it is an admitted factual position that original Complainant had given a loan of Rs.1 lakh to the accused by issuing a cheque and that in order to repay the said loan, accused had given the cheque for Rs.1 lakh in the name of the payee, but, only date was not mentioned. As such, admittedly, such undated cheque was given. In view of this situation and in view of the ratio propounded by various other authorities cited before this Court on behalf of the original complainant, hardly it can be said that there was a material alteration on the cheque, which was issued by the accused to the complainant and as such the submission that there was material alteration and on that count there was no any legally enforceable liability arise out of the said cheuqe, cannot be accepted. 3

So far as, the first argument as to applicability of Bombay Money Lenders Act, 1946 is concerned, various authorities are cited before this Court on behalf of original complainant. Unreported decisions of this Court in Criminal Revision Application No.32 of 1996 decided on 1 st September, 2006 in case of Sohel Janmuhammed Memon & Ors. V/s. The State of Maharashtra, 2006 CRI.L.J.1999 in case of S.V.Rao V/s.M/s.Credential Finance Ltd. & Ors., 2008(2) AIR Bom R 317 in case of Rajesh Varma v/s.M/s.Aminex Holdings & Investments & Ors.

It is pertinent to note that within the parameter given in section 2(9) of the Bombay Money Lenders Act, 1946, the transaction in the present matter of giving the loan by cheque, does not fall. In other words, it must be said that transaction in the present matter admittedly giving a loan of Rs. 1 lakhs by way of cheque by original complainant to the accused will not attract the recourse of the Bombay Money Lenders Act, so as to rendered the said transaction as not legally enforceable debt for want of valid money lending license with the complainant. Again on this count, the observations of Session Court while upholding the conviction of the accused are seen and both these arguments which are advanced before this Court were effectively dealt with and as such there is nothing to interfere with the said impugned order and in the result present criminal Revision must failed and accordingly disposed of with following order : 4 ::

O R D E R :: i. The Criminal Revision Application stands dismissed. (A.R. JOSHI, J.) 5