How to prove that complainant is carrying on money lending business in case u/s138 NI Act

 At the outset, it needs to be clarified that for forming a view in
a criminal case even the evidence led by the complainant or prosecution is
sufficient and the accused is not expected to prove anything except
bringing on record material suggesting existence of a view based on
preponderance of probabilities pertinently the complainant averred that he
is an agriculturist and yet, he happens to reside in urban area like
Ghatkopar, Mumbai and continues to extend loans to several persons.
Material suggestive of his role as money lender can be seen from his cross
examination.It is pertinent to note that the transactions of such huge
amounts were in cash and promissory notes stipulating interest were got
executed. No money lending licence has been produced before the trial
court. In light of the above facts, the trial court is justified in holding the
view that the debt in question is not legally enforceable debt as per the
provisions of Bombay Money Lenders Act, 1946. 


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 5397 OF 2010
Mulchand Ramji Saiya ..Applicant.
Vs.
Mr. Premji Ratanshi Gangar & Anr. .Respondents.

CORAM: U. D. SALVI, J.
 APRIL 18, 2011.



Heard. Perused the application and annexures thereto,
particularly the notes of evidence and the impugned judgment and order.
2 It was the case of dishonour of two cheques for Rs.2,00,000/-
and Rs.1,00,000/- allegedly given by the accused for repayment of the loan
amounts advanced @ 2 % per month. It was also alleged that the
promissory notes were executed in favour of the complainant by the
accused in respect of the said debts.
3 The learned trial court took a view that the debt in question

was not legally enforceable debt as per the provisions of Bombay Money
Lenders Act, 1946. The learned trial court observed that the complainant
was doing money lending business without the valid licence and this could
be seen from the huge amounts of loan given to different persons.
4 Mr.Ashfaq, the learned Advocate for the applicant submitted
that this view had no basis in evidence in as much as the accused did not
examine himself or anybody to present such view in the evidence.
According to the learned Advocate for the applicant these transactions were
friendly transactions between the parties and they could no be termed as
usurious transactions between the money lender and the debtor.
5 At the outset, it needs to be clarified that for forming a view in
a criminal case even the evidence led by the complainant or prosecution is
sufficient and the accused is not expected to prove anything except
bringing on record material suggesting existence of a view based on
preponderance of probabilities pertinently the complainant averred that he
is an agriculturist and yet, he happens to reside in urban area like
Ghatkopar, Mumbai and continues to extend loans to several persons.
Material suggestive of his role as money lender can be seen from his cross-

examination which is reproduced hereunder:-
“I have given amount to other persons also relative of the 
accused. I have filed cases against accused in Bhoiwada Court.
I have given the money to Mr. Ashok Bhai who is expired. His
son has made settlement and paid my amount. I have given 
amount to Mulchand Ravji Chheda of Rs.14,00,000/- that 
amount was given in cash. I have given amount to Mr. Ishwar 
Ravji. I have given amount to Narendra Savla who is owner of
Krti Store. I have given amount of Rs.4,50,000/- to him. I have
filed criminal case against him.............
I am not income tax payer. I voluntarily say that I am 
agriculturist and it is not necessary to pay income tax.” 
6 It is pertinent to note that the transactions of such huge
amounts were in cash and promissory notes stipulating interest were got
executed. No money lending licence has been produced before the trial
court. In light of the above facts, the trial court is justified in holding the
view that the debt in question is not legally enforceable debt as per the
provisions of Bombay Money Lenders Act, 1946. 
Leave is, therefore, refused.
7 Criminal Application No.5397 of 2010 stands disposed off.
(U. D. SALVI,J.) 

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