HON’BLE SRI JUSTICE B.N.RAO NALLA Crl.A. No. 552 of 2006 DATED: 02.07.2010 Between: B. Venkataramana .. Appellant/ Complainant And 1. Mohd. Raziuddin 2. The State of A.P. .. Respondents JUDGMENT:- This Criminal Appeal is directed against the judgment dated 29.07.2005 delivered in C.C. No. 61 of 2005 whereby the learned Special Judicial Magistrate of First Class, Mobile (PCR), Adilabad, having considered the evidence both oral and documentary, found the accused not guilty of the offence punishable under Section 138 of Negotiable Instruments Act (for short “the Act”) and accordingly, acquitted him. The case of the complainant in brief is that he is a business man and in the month of October 2001, the accused took a loan of Rs.40,000/- from him towards expenses for the marriage of his friend’s daughter, by executing a promissory note. He further submits that the accused did not repay the loan within three month as agreed, and on several demands, he issued a crossed cheque bearing No.749405, dated 23.06.2003 for a sum of Rs.40,000/- drawn on Andhra Bank, Adilabad and when the complainant presented it in State Bank of Hyderabad on 09.07.2003 for encashment, the same was dishonoured with an endorsement “insufficient funds”. Then, the complainant issued a legal notice dated 04.08.2003 which was received by the accused on 05.08.2003. Afterwards, the accused gave a reply with false allegations, but did not repay the loan amount. Hence, the complaint. To substantiate the case of the prosecution, the complainant got examined himself as PW1 and two others as PWs.2 and 3 and got marked Exs.P1 to P9. DWs. 1 to 3 were examined, but no documents were marked on behalf of the defence. The trial Court, after considering the evidence of the prosecution witnesses, found the accused not guilty of the offence punishable under Section 138 of the Act, and accordingly acquitted him. Challenging the same, the complainant preferred the present Criminal Appeal. Heard the learned counsel for the 1st respondent-accused, the learned Assistant Public Prosecutor appearing for the 2nd respondent- State and perused the material placed on record. As none appeared on behalf of the appellant-complaint, nor was made any representation on his behalf, this Court is inclined to dispose of this Appeal on merits. The learned counsel for the 1st respondent-accused has contended that the complainant was doing money-lending business without holding valid licence, and that the cheque amount alleged to have been issued by the accused is not legally enforceable debt and that the statutory obligation in issuing notice to the accused by the complainant within the stipulated time was not fulfilled. The evidence of PW1 is only to the effect that he lent a sum of Rs.40,000/- to the accused, and that the accused put his signatures both on the promissory note and the cheque. DW1 – accused, deposed that his neighbour one Mohd.-bin- Amar has got acquaintance with the complainant and there were transactions of lending and borrowing money between them. Mohd.- bin-Amar had borrowed a hand loan of Rs.25,000/- from the complainant in the year 2001 for the purpose of performing his daughter’s marriage, and as per requirement of the complainant and on demand for surety, Amar requested him to stand as guarantor for the loan, and therefore, the accused had given a blank promissory note and blank cheque with signatures towards surety. He heard from Amar that after six months of lending loan, he repaid Rs.8,000/- and the remaining Rs.17,000/- was also paid with interest at 5% p.m. which comes to Rs.850/- p.m. after another six months. Then, after getting confirmation from the complainant that Amar repaid the entire loan amount, he asked the complainant to return the surety documents including the cheque, but the complainant stated that he would return the cheque and promissory note afterwards, but later, sent a statutory notice stating that the cheque issued by him for Rs.40,000/- was bounced. He also deposed that the complainant is lending amounts to Rasheed Khan, Syed Abdul, Hakeem and Mohd.-bin-Amar and he is doing money-lending business illegally. DW2 – Mohd-bin-Amar deposed that he has acquaintance with the complainant through the accused. On 08.11.2001, the complainant lent him a loan of Rs.25,000/- for interest at 5% p.m. for which the accused stood as guarantor. At his request, the accused had singed on a blank paper, blank promissory note and blank cheque. After four or five months, he repaid the loan amount of Rs.8000/- to the complainant, and later the remaining amount of Rs.17,000/- was also paid by paying 5% interest thereon. He further deposed that when he demanded for receipt of payment of Rs.8000/-, the complainant stated that he was not in the habit of issuing receipts and when DW2 asked for return of documents, the complainant stated that he would hand over them to the accused, who stood as security, and after six months, the complainant did not return the documents. He further deposed that the accused is not liable to pay amount to the complainant under the documents. DW3 – Veterinary Assistant, deposed that he knows the complainant and the accused and the complainant has partnership in Diesel Auto Agency and also partner in G.N. Rao Petrol Bunk at Adilabad and he is in the habit of lending money on interest and he borrowed money from him on two occasions for Rs.20,000/- and Rs.10,000/- respectively for interest at 5% p.m. and the complainant used to obtain blank promissory notes from him. From the evidence adduced on behalf of the defence, it is obvious that the 1st respondent-accused is a money lender and gives money to the various parties for heavy interest i.e. at the rate of 5% per month and does not issue receipts nor return the documents of security to the loanees. Even though PW1 denied the fact that he is a money lender, the evidence of DWs.1 to 3 clearly speak volumes that he is a money lender. It is well settled that money-lenders have to necessarily possess a valid license for doing the business and it appears from the material on record that the complainant has failed to produce any material to show that he has valid licence. Therefore, it can be said that the complainant is doing money lending business without holding valid licence, which is contrary to the statutory provision. Further, there is any amount of contradiction in the evidence of PW1 when compared with that of DW1 with regard to taking loan by the accused from the complainant. The accused deposed that he stood as surety for DW2 – Mohd.-bin-Amar, who himself categorically admitted in his evidence that he took a loan of Rs.25,000/- for which the accused stood as guarantor and the same was repaid by him together with interest thereon at the rate of 5% per month. The evidence of DW3 also corroborated with the evidence of DWs.1 and 2. But, contrary to their evidence, the complainant deposed that he lent a loan of Rs.40,000/- to the accused, which is not at all credible, and further, there is no corroborating evidence to the version of PW1 that the accused himself borrowed the alleged amount. Even though the signatures of the accused and the issuance of the cheque by him are not disputed, it is crystal clear from the evidence on behalf of the defence that the accused stood as surety only for the amount taken by DW2 from the complainant which was already repaid, and he did not borrow any amount from the complainant. If this fact is considered, it can be said that the complainant, being a money lender, cannot recover the debt from the accused, who stood as guarantor only, as such, the amount alleged to have been taken as loan is not a legally enforceable debt. Moreover, from a careful perusal of the evidence of PW1, it is obvious that the cheque was deposited in the bank on 09.07.2003, and the same was dishonoured on 11.07.2003, and the complainant issued notice to the accused on 04.08.2003. When the cheque was dishonoured by the bank officials, it is the statutory obligation of the complainant to issue legal notice within a period of 15 days from the date when the cheque was returned. Obviously, the notice should have been issued on or before 26.07.2003, but the complainant issued notice to the accused on 04.08.2003, which is in clear violation of the statutory provisions contemplated under the Act. Therefore, the contentions put forth by the learned counsel for the 1st respondent-accused are sustainable, and the evidence of DWs1 to 3 is cogent, reliable and trustworthy, as such, I am of the considered opinion that the trial Court is rightly justified in acquitting the accused. For the foregoing reasons, this Court does not find any infirmity in the impugned judgment warranting interference from this Court. Hence, the Criminal Appeal fails, and the same is accordingly dismissed confirming the judgment dated 29.07.2005 delivered by the Special Judicial Magistrate of First Class, Mobile (PCR), Adilabad. _________________ B.N. RAO NALLA, J. 2nd July, 2010 bcj