- (1.) This Appeal at the instance of original complainant, is directed against the judgment and order dated 26th March, 2009 passed by learned Judicial Magistrate First Class, Nagpur in Criminal Complaint Case No.9037/2007, whereby the respondentaccused was acquitted of the charge under section 138 of the Negotiable Instruments Act, 1881 ( hereinafter referred to as "the N. I. Act").
(2.) The facts in nutshell which gave rise to this appeal are : The complainant claimed that she is carrying on the business in lending money to needy persons. It is her case that the accused had approached her on 3.2.2006 and 8.4.2006 with a request for loan in the sum of Rs. 18,000/and Rs. 19,000/respectively for a period of two months and agreed to pay interest at the rate of Rs. 21% per annum, under two promissory notes executed before a Guarantor and accepted the cash. Further, according to the complainant, the accused had on 17.11.2006 issued a cheque in the sum of Rs. 40,000/towards repayment of loan amount and part of interest. The cheque bearing No. 767789 was drawn upon Canara Bank, Sadar Bazar Nagpur. The cheque was presented by the complainant on 4.5.2007 to the State Bank of Indore, Gandhibagh, Nagpur, which came to be dishonoured with remarks "funds insufficient" as informed by the Bank, on 5.5.2007. The complainant by notice dated 21.5.2007 demanded a sum of Rs. 40,000/and interest at the rate of 21 per cent within 15 days of the receipt of notice. The accused received the notice on 22.5.2007; but did not repay the amount. Hence the complainant filed complaint on 26.6.2007 in the Court of learned Judicial Magistrate, First Class2, Nagpur seeking trial and punishment of the accused for offence punishable under section 138 of the N.I. Act.
(3.) The accused did not dispute the fact that he had issued the cheque under his signature and had received notice (Exh.22) from the complainant; but outrightly denied the complaint and any liability on the ground that the complainant was doing business of money lending without any requisite licence for money lending and that the complainant has failed to prove legally enforceable or recoverable debt or legal liability as against accused, in view of the provisions of the Bombay Money Lenders Act, 1946. The accused opposed the complaint stoutly on the ground that under section 139 of the N.I. Act, there can not be presumption of preexisting liability and complainant had failed to prove that the cheque was issued towards legally enforceable debt or liability.;