Page No.# 1/5 GAHC010175472025 2025:GAU-AS:10839 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./952/2025 ARVIND GOEL PROPRIETOR OF M/S DEV INDUSTRIES 2ND FLOOR, HOUSE NO. 2A, SAROJ COURT, PAN BAZAR GUWAHATI-781001, P.S. PAN BAZAR DIST. KAMRUP (M), ASSAM VERSUS VIVEK JAIN (HUF) REPRESENTED BY ITS KARTA, MR. VIVEK JAIN C-1, .R.K. TOWER, REHABARI GUWAHATI-781008, KAMRUP (M). Advocate for the Petitioner : MR I S MAZUMDAR, MS M BEGUM,MISS J MOSSANG Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 07-08-2025 1. The instant criminal petition under Section 528, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 is preferred seeking setting aside and quashing Page No.# 2/5 of the proceedings of a complaint case, C.R. Case no. 2187C/2019, presently pending before the Court of learned Sub-Divisional Judicial Magistrate [S] No. 2, Kamrup [M] at Guwahati [‘the Trial Court’, for short]. 2. In the complaint case, C.R. Case no. 2187C/2019, the petitioner herein has been arraigned as accused no. 2. The respondent impleaded herein is the complainant in C.R. Case no. 2187C/2019 and he has instituted the complaint alleging commission of the offence under Section 138 of the Negotiable Instrument Act, 1881, as amended [‘the N.I. Act’, for short]. 3. In the complaint, the complainant has asserted that he advanced a sum of Rs. 5,00,000/- to the accused on 21.09.2015 by a cheque bearing no. 153166 dated 21.09.2015 drawn on HDFC Bank, Fancy Bazar, Guwahati. He has further asserted that the accused had duly admitted and acknowledged the receipt of the said amount by issuing a money receipt dated 21.09.2015 with a promise to return the aforesaid borrowed amount within a period of twelve months along with interest @ 2% per month which was later on verbally finalized for 1.5% per month. A Deed of Agreement was also executed between the parties on 21.09.2015. It has been further asserted that the accused for repayment of the aforesaid borrowed amount had issued a cheque bearing no. 000067 of Rs. 5,00,000/- drawn on the Federal Bank Ltd. Silpukhuri in favour of the complainant’s HUF firm on the date of execution of the aforesaid agreement against his outstanding liabilities by inserting the amount but, without the date. 4. It was after dishonour of the said cheque on its presentation for collection, the proceedings under Section 138 of the N.I. Act has been instituted by the Page No.# 3/5 respondent-complainant after compliance of the formalities like sending a demand notice, waiting for the fifteen days’ notice period thereafter, etc. vide the complaint registered as C.R. Case no. 2187C/2019. In the complaint, the petitioner while arraigning the petitioner as petitioner no. 2 in the capacity of proprietor of M/s Dev Industries, the petitioner’s proprietorship concern, M/s Dev Industries has been arraigned as accused no. 1. 5. The main ground urged by the learned counsel for the petitioner for setting aside and quashing of the proceedings of C.R. Case no. 2187C/2019 is that the act of lending money by the respondent-complainant to the accused with the provision for interest has brought the act within the purview of the Assam Money Lenders’ Act, 1934, as amended [‘the Money Lenders’ Act’, for short]. It has been urged that Section 7C[1] of the Money Lenders’ Act has stipulated that no person shall carry on the business of money lending unless he holds a valid registration certificate in that behalf. 6. Sub-section [2] of Section 7C of the Money Lenders’ Act has provided that whoever contravences the provisions of sub-section [1] shall be punishable for the first offence with simple imprisonment which may extend to three months or with fines which may extend to Rs. 500 or with both, and for a second or subsequent offence, with imprisonment of either descriptions which may extend to six months or with fines which may extend to rupees one thousand or with both. 7. It has been provided in Section 12A[1] of the Money Lenders’ Act to the effect that no court other than a Court of a Magistrate of the First Class shall Page No.# 4/5 take cognizance of, or try an offence under the Money Lenders’ Act. Sub-section [2] of Section 12A has stipulated that no Court shall take cognizance of any offence under the Act except on a complaint in writing made by an aggrieved person or an officer not below the rank of a Sub-Inspector of Police or by the Registrar or any other Officer specially or generally authorized on this behalf by the State Government. 8. The Court has made a query to the learned counsel for the petitioner whether any complaint in writing as per sub-section [2] of Section 12A of the Assam Money Lenders’ Act has been instituted by the persons named therein and if instituted, whether the consequent proceeding is concluded. The learned counsel for the petitioner has answered in negative. In other words, there is no finding by a Court of competent jurisdiction, as on date, to the effect that the respondent-complainant is to be treated as a money lender under the Money Lenders’ Act. 9. From the materials brought on record, it is noticed that in the Deed of Agreement executed on 21.09.2015, the petitioner is a party to the Deed of Agreement executed between the petitioner on one part and the respondent- complainant on the other part. The said Deed of Agreement has mentioned that the petitioner would pay an interest @ 1.5% per month on the borrowed amount every month. Whether such recital would bring the respondent- complainant within the purview of the definition of Money Lender is a matter which can be determined only as per the procedure laid down in the Money Lenders’ Act. The petitioner has not said that the respondent-complainant had resorted to fraud, deception, etc. to make the petitioner to execute the Page No.# 5/5 agreement. 10. In view of the discussion made above, this Court does not find any reason, much less good and sufficient reason, to entertain the instant criminal petition to invoke the inherent powers under Section 528, BNSS within the settled parameters. Consequently, the criminal petition is dismissed. 11. The proceedings of C.R. Case no. 2187C/2019 is still on as the trial Court is in seisin of the matter. 12. It is open for the petitioner to raise all grounds during the proceedings of C.R. Case no. 2187C/2019 under the law. JUDGE Comparing Assistant