1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.591 OF 2008 IN CRIMINAL APPEAL NO. OF 2007 Basant Kumar Devraj Agarwal ..... Applicant. V/s Ram Jiwan Saraf & Anr. ...... Respondents. ----- Mr. R. A. Yadav for the applicant. Mr. Sushil Chourasia i/b Mr. A.M. Saraogi for respondent No.1. Mr. S.S. Pednekar, APP for the State. ------ CORAM: V.M. KANADE, J. DATE: 6th October, 2008 P.C.: 1. Heard the learned Counsel for the applicant and the learned Counsel for respondent No.1. 2. Applicant is challenging the judgment and order passed by the Trial Court whereby the Trial Court was pleased to acquit respondent No.1 of the offence punishable under section 138 of the Negotiable Instruments Act. 3. The complainant filed a complaint, alleging that he is a Transporter and is carrying on transport business all over India. In 2 para 2 of the complaint, it is stated that the accused had started Joint Fund in the month of December, 2000 which commenced on 10/12/2000 and ended on 10/3/2002. He has further stated that there were 15 members in the Fund and each member was making payment of monthly instalment of Rs 20,000/- to the accused. At the end of the month, there used to be a monthly bidding of Rs 3,00,000/- for each member. It is the case of the complainant that he had paid 15 instalments of Rs 20,000/- to the accused. He submitted that the accused gave him three cheques for an amount of Rs 1,00,000/- each and for total amount of Rs 3,00,000/- and when the said cheques were deposited, they were dishonoured. The Trial Court held that the said Fund which was carried on by the applicant was a chit fund and there was a prohibition for carrying on the chit fund business under section 3 of the Price Chit Money Circulation Scheme (Banning) Act. The Trial Court, therefore, came to the conclusion that the debt was not legally enforceable debt and, therefore, the respondent No.1 was not liable to be prosecuted under the provisions of section 138 of the Negotiable Instruments Act. 4. The learned Counsel appearing on behalf of the applicant submits that the Trial Court had erred in coming to the conclusion that the said business was a chit fund business. He submitted that the word “chit fund” was not used in the complaint or in the evidence of the complainant. He submitted that, therefore, the Trial Court had erred in recording the finding that the said business was prohibited under section 3 of the said Act. 3 5. This submission cannot be accepted. Though the word “chit fund” is not used in the complaint, it is evident from the averments made in para 2 of the complaint that respondent No.1 was carrying on chit fund business which is admittedly prohibited under section 3 of the said Act. That being the position, the Trial Court was justified in observing that the said debt was not legally enforceable liability. No case is, therefore, made out for grant of leave. Leave is, therefore, refused. Appeal does not survive. (V.M. KANADE, J.)