- (1.) PETITIONER preferred this revision petition being aggrieved with the judgment and decree passed by the learned Munsif and Judicial Magistrate, Baran and confirmed by the learned Additional District Judge, Baran in appeal vide his judgment dated, 23. 4. 84.
(2.) PETITIONER instituted a suit against one person of the Scheduled Tribe who is also agriculturist on the basis of the alleged Hundi which is said to have been executed by the agriculturist Scheduled Tribe person in favour of the plaintiff Mahajan. Rule of law is a law to put a check on the exploitation, to put check against those persons who are violating the fundamental principles of the preamble of the Constitution and who are sabotaging the doctrine of equality enshrined in the preamble of the Constitution. Law is meant for the society, society is not meant for the law. Rule of law directs the person to fulfil the requirement of Article 51 A of the Constitution of India, to strive towards the achievement of the goal laid down in the Constitution. Justice, social,political and economic are inseparable parts and unless there is a union of trino there cannot be justice at all. The apprehension of the masses that the Courts are meant to assist the money minders and are only for the rich and not for the poor, needs to be removed. It is the duty of the Court to see that the law is interpreted in a way which may be beneficial to the society and fulfils the object laid down in the Constitution of India. Preamble is the basic structure of the Constitution. It is the soul and it is the spirit of the Constitution and without a preamble the whole spirit, the energy goes away. In the instant case, one business-man advanced loan and got the alleged Hundi executed from a person of the Tribe and who is also an agriculturist. Mr. Bhandari appearing on behalf of the petitioner has argued that under section 2 sub-section 9 (i) of the Moneylenders Act, the loan has been defined as under :- Loan, means advance at interest whether of money or any kind, but does not include any advance made on the basis of Negotiable Instrument as defined in the Negotiable Instrument Act other than a promissory note". Mr. Bhandari submits that the Hundi is a promissory note as such, it cannot be treated as loan under the Moneylenders Act. He submits that the Court below has committed an error in holding the Hundi as an instrument not falling within the purview of the Negotiable Instrument Act. Mr. Bhandari has relied upon the case of Mangal Sen v. Ganeshi Lal (1 ). Their Lordships were considering the provisions of the Stamp Act and held that Sahjog Hundi which is a document in vernacular is a negotiable instrument although it does not come within the definition of a Bill of Exchange. Mr. Bhandari has also cited before me the case of Punjab High Court in Central Bank of India v. M/s. Khub Ram Roop Chand (2), in which Punjab High Court has held that the Hundi made payable to "shah" which means a respectable person, falls within the definition of Shahjog Hundi. Punjab High Court has also held that Shahjog Hundi does not fall within the definition of Bill of Exchange or a negotiable instrument as defined in the Negotiable Instruments Act. However, it further held that it is the same negotiable instrument and has all the incidence of the same.
(3.) IT will not be out of place here to mention that the Punjab Hight Court itself has held in Para-8 of the judgment that, 'from what has been said above it is quite clear that a 'shah Jog' Hundi does not technically fall within the definition of a Bill of Exchange or a negotiable instrument as defined by the Negotiable Instruments Act. Punjab High Court has taken the assistance of Section-1 of the Negotiable Instruments Act and held that Section- 1 of the Act expressly recognises such instruments which are written in oriental language and are in vogue on the basis of local usage, IT is well known that Hundis are exchanged in business transactions and the local usage is used as Hundi in commercial transactions. IT is difficult to hold that a businessman while advancing loan to an agriculturist and particularly the person of the Scheduled Caste will deal with the Hundi, unless the intention is to defeat the provisions of the beneficial legislation. Thus, it cannot be said that there is any local usage in Rajasthan or in any part of the country that an agriculturist of Scheduled Tribe will write a Hundi in favour of a Mahajan or a money lender. The case cited by Mr. Bhandari does not help him. On the contrary, this part of the judgment that Shahjog Hundi does not technically fall within the definition of negotiable instrument goes against him. Mr. Bhandari has also cited before me the case of Kanhaiya Lal v. Duli Chand (3 ). In the said case this Court has held that Shahjog Hundi may be treated as a Bill of Exchange for the purpose of Stamp Act. This Court in the case of Sobhag Mal v. Ram Gopal (4) held that the intention of the parties should be looked into and the surrounding factors negativing the intention of creation of a Hundi can also be looked into by this Court. In the said case, in para-5 of the judgment this court has held as under :- Facts and circumstances negativing such an intention it must be held to be a promissory note. " Thus, the intention of the parties will have to be looked into. The full Bench of the Nagpur High Court in the case of Raja Komal Singh vs. Ram Bharose (5) have held that Shahjog Hundis are not negotiable instruments within the meaning of the Negotiable Instruments Act. In the case of Jassa Ram v. Thakurdas (6), Division Bench of the Sindh High Court has held that Shahjog Hundi is not a Hundi. ;