The learned Sessions Judge
while allowing the revision application preferred by
respondent Nos. 1 and 2 has observed that the contract
which is forbidden by law is void contract. In cases of
money lending business without license, the provisions
under Section 138 of Negotiable Instruments Act are not
attracted. According to the complainant huge amount of Rs.
4,50,000/- was parted to the accused. There was a
Memorandum Of Understanding (for short “MOU”) dated
22.02.2014 between M/s. Monika Sumit Ujjain as the lender
and M/s. Saga Infra as the borrowers. As per MOU it can be
gathered that the transactions was without license. Post
dated cheques were given by way of security. I have
perused the MOU and the other documents on record
considering the factual matrix of this case I do not find any
reason to interfere with the impugned order.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO. 394 OF 2015
Mrs. Monica Sunit Ujjain Vs Sanchu M. Menon
CORAM : PRAKASH D. NAIK, J.
DATE : 2nd AUGUST, 2022
1. The applicant is aggrieved by order dated 26.06.2015
passed by Additional Sessions & District Judge-3, Thane in
Criminal Revision Application No.134 of 2015.
2. The applicant is the original complainant in S.C.C.
No.7963 of 2015 pending before the Court of 4th Joint
Judicial Magistrate, First Class, Vashi at CBD Belapur, Navi
Mumbai. The complaint was fled alleging ofence
punishable under Section 138 of Negotiable Instruments
Act. The learned Magistrate issued process. The respondent
No.1 and 2 challenged order of process by preferring
revision application before the Sessions Court. The learned
Sessions Judge vide order dated 26.06.2015 allowed the
revision application and set aside the order issuing process
dated 09.04.2015 passed by learned JMFC, Vashi, Navi
Mumbai.
3. The case of the complainant is that the accused No.1
is partnership frm and accused No.2 and 3 are partners of
accused No.1. In February 2014, accused No.2 and 3
approached complainant for fnancial help and sought
friendly loan of Rs. 12,00,000/-. The complainant
transferred Rs.7,50,000/- to accused by RTGS on
22.02.2014 and sum of Rs.4,50,000/- was paid in cash to
accused on 22.02.2014. The accused executed MOU
admitting receipt of Rs.12,00,000/- and undertook to repay
the loan on or before 30.08.2014. The accused issued fve
cheques bearing Nos. 068172, 068173, 068166, 068170
and068168 in favour of complainant. The complainant
presented the cheques which were dishonoured for the
reason “Alteration”. The complainant suspected that the
accused have deliberately made mistake while writing
name of complainant on the cheque. The accused issued
fresh cheque dated 11.03.2015 for Rs.11,50,000/-. The
accused issued notice dated 02.03.2015 by which the
accused admitted the loan transaction and liabilities of
Rs.5,50,000/-. The accused however, made false claim in
the notice stating that cheques were issued by way of
security. Cheque were presented by the complainant which
was returned with remark “Payment stopped by the
drawer”. The demand notice dated 17.03.2015 was sent to
the accused. The complaint was fled before the Court of 4th
Joint Judicial Magistrate First Class, Vashi at CBD Belapur,
Navi Mumbai.
4. Learned Magistrate issued process for ofence under
Section 138 of Negotiable Instruments Act vide order dated
09.02.2015.
5. The applicant challenged the order of process before
the Sessions Court by preferring revision application which
has been allowed by the Sessions Court hence,
applicant/complainant has preferred this revision
application.
6. Learned advocate for the applicant submitted that the
impugned order passed by learned Sessions Judge is
contrary to law. Prima facie, case was made out against the
accused and the learned Magistrate after recording
verifcation statement and considering the document on
record issued process against the accused. Cheques were
dishonoured. Demand notice was sent to the accused. All
procedural safeguards were complied. Order of process
could not be set aside in Revisional Jurisdiciton. Learned
Sessions Judge has considered defence of the accused.
While deciding the revision application, the learned
Sessions Judge failed to consider the presumption under
Section 139 of Negotiable Instruments Act which has
required to be rebutted during trial. Learned Sessions Judge
has committed an error in observing that the MOU
suggested payment of interest by the accused. The
respondent No.1 and 2 has replaced the earlier cheques
which shows the admission of liabilities. The learned
Sessions Judge has committed an error in holding that the
cheques were given by way of security and thus out of
purview of Negotiable Instruments Act the accused had
admitted the execution of cheques giving rise to statutory
presumption under Section 118 and 139 of Negotiable
Instrument Act. The order passed by learned Sessions Judge
is required to be set aside. opportunity is required to be
given to the complainant to prove its case by adducing
evidence. The learned Sessions Judge however, set aside
the order of process on erroneous fnding.
7. Learned advocate for the applicant has relied upon
following decisions:-
(a) Sripati Singh (Since Deceased) Through His
Son Gaurav Singh Vs. State of Jharkhand and
Another1.
(b) Pulsive Technologies Private Limited Vs.
State of Gujarat and Others2.
(c) Mundalik Jewellers, Aurangabad and another
Vs. Bhilaji s/o Ganpat Patil3.
(d) Ganesh Madhavrao Hawaldar Vs. Mithalal
Keshaolal Dave4.
(e) Basalingappa Vs. Mudibasappa5.
(f) Madhukar V. Dessai Vs. Shaikh Abdul Riyaz6.
(g) K. sitaram And Another Vs. CFL Capital
Financial Service Limited and Another7.
(h) Kashinath Balu Gaonkar Vs. Sunita
Krishnajirao Dessai and Another8.
(i) Rangappa Vs. Sri Mohan9.
8. Learned advocate for respondent No.1 and 2
submitted that there is no illegality in the impugned order.
Continuation of proceedings against the respondent would
1 2021 SCC OnLine SC 1002
2 (2014) 13 SCC 18
3 2010 SCC OnLine Bom 1881
4 1998 SCC OnLine Bom 436
5 (2019) 5 SCC 418
6 2006 SCC OnLine Bom 1500
7 (2017) 5 SCC 725
8 2015 SCC OnLine Bom 390
9 (2010) 11 SCC 441
be abuse of process of law. The Sessions Judge was
empowered to entertain the revision application and set
aside the order issuing process. Learned Sessions Judge has
rightly taken into consideration the undisputed document
on record and set aside the order of process. It was rightly
held that in cases of money lending business without the
license, the proceedings was not maintainable in law. The
Court has observed that the transaction was loan
transaction without license post dated cheques were given
for security of the loan. Money lending without licence is
cognizable ofence. The respondents had lodged complaints
against the applicant. The order issuing process was
passed mechanically. It would not be possible to enforce
any agreement. The object of which is unlawful within
meaning of section 23 of Contract Act.
9. Learned advocate for respondents has relied upon the
following decisions :-
(a) Girdhari Parmanand Motiani Vs. Vinayak Bhagwan
Khavnekar and Ors.10.
(b) Smt. Nanda W/o Dharam Nandanwar represented
through PAO Dharam S/o Kisandas Nandanwar
Vs. Nandkishor s/o Talakram Thaokar11.
10 2016 ALL MR(Cri) 1909
11 MANU/MH/0069/2010
(c) Anil S/o Baburao Kataria Vs. Purshottam S/o
Prabhakar Kawane.2010 Cri.LJ 1217
(d) K. K. Sidharthan Vs. T. P. Praveena Chandran and
Anr. 1996 (4) Crimes 102 (SC)
(e) Rajendra Kumar Sitaram Pande Vs. Uttam and
Another. AIR1999SC1028
impugned in this proceedings. The learned Sessions Judge
while allowing the revision application preferred by
respondent Nos. 1 and 2 has observed that the contract
which is forbidden by law is void contract. In cases of
money lending business without license, the provisions
under Section 138 of Negotiable Instruments Act are not
attracted. According to the complainant huge amount of Rs.
4,50,000/- was parted to the accused. There was a
Memorandum Of Understanding (for short “MOU”) dated
22.02.2014 between M/s. Monika Sumit Ujjain as the lender
and M/s. Saga Infra as the borrowers. As per MOU it can be
gathered that the transactions was without license. Post
dated cheques were given by way of security. I have
perused the MOU and the other documents on record
considering the factual matrix of this case I do not find any
reason to interfere with the impugned order, Hence I pass
the following order:-
ORDER
(i) Criminal Revision Application stands rejected and
disposed of.
(PRAKASH D. NAIK, J.)
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