1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 1342/2010 Mukesh Laxmansingh Bisen V/s. Shrikant s/o. Digambar Soman ----------------------------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. ----------------------------------------------------------------------------------------------------------- Mr ٌA. S. Chandurkar, Adv for applicant Mr. V. N. Mutha, APP respondent Coram: A. P. Bhangale, J Dated: 7th June 2011. 1. By this application under Section 482 of Criminal Procedure Code, the applicant prayed to quash Summary Criminal Case No. 2396/2009, pending in the Court of learned Joint Judicial Magistrate, First Class, Akola. According to the applicant, he had cordial relations with the respondent, through a common friend and advanced a sum of Rs. 3,75,000/- by cheque bearing No. 866023, dated 08/04/2007, and an amount of Rs. 2,00,000/- also through a cheque bearing no. 856025, dated 12/04/2007 drawn upon State Bank of India, Akola. 2. The case of the complainant appears to be that the applicant had agreed to pay interest @ 1% per month on the borrowed amount. The complainant stated that the applicant had issued a cheque of Rs. 6,50,000/-, bearing no. 008984, 2 dated 05/05/2009 drawn upon Bank of India, Branch Akola, in favour of the client. However, when presented for encashment, the cheque returned with remark “funds insufficient”. Thus, the cheque was dishonoured for non payment. The complainant, through his Advocate demanded the payment on the basis of dishonoured cheque and issued demand notice 04/06/2009 by R.P.A.D. as well as ordinary post. 3. It appears case of the applicant that no reply was given to the demand notice sent by complainant. The complaint was lodged thereafter against the non-applicant for offence punishable under Section 138 of the Negotiable Instrument Act (vide Annexure “B” along with petition) with prayer to punish the accused-applicant) for offence committed under Section 138 of Negotiable Instrument Act. The learned trial Magistrate passed an order dated 11.8.2009 and directed issuance of process against the present applicant-accused after recording verification and perusal of complaint, documents etc. 4. It is the contention on behalf of the applicant that the amount of Rs. 6,50,000/- was not “legally enforceable” debt and further-more repayment of the amount advanced was sought along with interest although the respondent did not possess the money lending license to advance the amount and to recover it along with interest thereon. 5. The learned APP for the respondent contended that, all the necessary facts were mentioned in the demand notice which was not replied by the applicant-accused. The applicant 3 had issued a cheque in the sum of Rs. 6,50,000/- on 05/05/2009, in respect of borrowed amount. It is therefore contended that, the complainant was entitled to the payment of interest @ 1% per month on the aforesaid conditions. It is contended that one or two casual transactions would not make a person professional money lender. 6. Considering the averments in the complaint as also demand notice, I think, the learned trial Magistrate acted well within his judicial discretion and directed issuance of process against the applicant under Section 138 of the Negotiable Instruments Act. The contentions raised on behalf of the applicant as well as on behalf of the respondents can be dealt with on merits by learned trial Magistrate. However, the inherent powers under Section 482 of Code of Criminal Procedure are to be exercised by this Court in rare and exceptional cases. 7. In the facts and circumstances, the present case, in my opinion, can not be considered rare and exceptional case in order to interfere with the order of issuance of process. Criminal Application is dismissed. JUDGE Punde