1 INTHEHIGHCOURTOFJUDICATUREATBOMBAY BENCHATAURANGABAD CRIMINALAPPLICATIONNO.630OF2009 IN CRIMINALAPPEAL(STAMP)NO.139OF2009 age42years,occup.trading, r/oShivneriMarg,Station Road,Ahmednagar,Taluka ..Applicant/ andDistrictAhmednagar. ori.complainant. versus Purshottams/oPrabhakarKawane age50years,occup.service, r/ofM.E.S.Colony,SolapurRd. Ahmednagar.

..Respondent. ShriP.S.Pawar,Advocateforapplicant. ShriAmolN.Kanade,Adv.forRespondent. 2 Coram:P.R.BorkarJ. Date:21.11.2009. ORALJUDGMENT Anils/oBaburaoKataria,

1. Thisisanapplicationforleavetofile appealagainstthejudgmentandorderofacquittal passed by the learned Judicial Magistrate, First Class(1stCourt),AhmednagarinS.T.C.No.3528of 2005decidedon11.12.2008.

2. Briefly stated, in or about September October 2004, present Respondent was in need of financial help and, therefore, he requested the present applicant to give him amount of Rs.4.00 lakhsandassuredtorepaythesamewithinoneor two months. The applicant paid the amount. However, according to the applicant, the respondent failed to repay the amount and thereforedemandwasraisedbyapplicantpursuant to which the present respondent issued cheque dated24.5.2005drawnonPostOfficeSavingsBank, Ahmednagar Branch, for Rs.2.00 lakhs. On 3 25.5.2005,theapplicantdepositedthatchequein the said bank for encashment, but the same was dishonoured on the ground of insufficiency of funds.

3. Thereafter on 4.6.21005, the applicant issued notice to the Respondentcallingupon him to pay the amount within fifteen days and since the amount was not paid, the complaint under Section138oftheNegotiableInstrumentsActwas filed. The trial court took cognizance of the complaint and issued notice to the present Respondentwhothenappearedinthematter. The trial was conducted and ultimately the order of acquittal was passed which is sought to be
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challengedbyseekingleaveofthiscourttofile

appeal.

4. Heard Shri P.S.Pawar, learned Advocate fortheapplicantandShriAmolN.KakadeAdvocate for the respective parties. Both have taken me throughvariousdocumentsandthejudgmentofthe trial court. The trial court has taken into 4 considerationtheadmissiongivenbytheapplicant in his cross examination that he had filed criminal cases for commission of offence punishable under Section 138 of the Negotiable InstrumentsAct,againstthepersonsmentionedin paragraph 20 of the judgment. Those persons are (1) AnandaGahile,(2)VijayKale,(3),Rajendra Dake, (4) Vinay Khisti, (5) Shivaji Chaure, (6) SantoshMalwade,(7)AkrurKaspate,(8)Kanhayalal Rathod,(9)SachinJoshiand(10)Prakashlate. Theapplicant denied that the casesinvolved the amounts total of which is more than Rs.80.00 lakhs.

5. ItisarguedonbehalfoftheRespondent thatthetransactionswithsomanypersonsclearly indicatethatthetransactionwiththeRespondent wasnotofahandloan transaction,butitwasa money lending transaction and the complainant/applicant is doing money lending businesswithoutlicence. 5 6. In paragraph 16 of the judgment, the learnedtrial courtreferred toevidence ofDW1 Premlata Balasaheb Parkhe at Exh.50 who is an employee of the Incometax Department. She produced incometax returns of the present applicantatExhibits52and53andinparagraph 16ofthejudgment,thetrialcourtnotedthatthe totalincomeoftheapplicantintheyear200203 wasRs.60,000/=andfortheyear200304,itwas Rs.57,989/=anditisamplyclearthattheperson havingsuchincomecouldnothavelentamountof Rs.4.00 lakhs in lumpsum to the respondent accused. There is no other documentary evidence ledbythecomplainanttoprovethatheactually lent Rs.4.00 lakhs. It is the case of present RespondentthatheborrowedamountsofRs.10,000/= andRs.20,000/=fromtheapplicantandrepaidRs. 50,000/=. However, while giving loan, the applicantcomplainant had obtained blank cheques fromtherespondent andtakingadvantageofthe same,thepresentcaseisfiled. 6 7. The trial court has come to the conclusionthatthecomplainantcouldnothavean amountofRs.4.00lakhsinlumpsumatatimeand there is nothing on record that he got some windfall after March 2004 so that he could give loan of Rs.4.00 lakhs at a time to the accused respondentinSeptemberOctober2004.Moreover,it appearsfrom the admission of the complainant in hiscrossexaminationreferredtoabove thathe is doing money lending business. He admitted to have money transactions with ten persons named whichultimatelyresultedintheirprosecutionfor offence punishable under Section 138 of the NegotiableInstrumentsAct.

8. Shri Amol Kakade, learned Counsel for the Respondent has filed affidavitinreply and producedxeroxcopyofcriminalM.A.No.16of2009 filedbypresentapplicant,wherebyhehassought transferofasmanyas60casesfromonecourtto another. There is no denial of this document. Avermentsinaffidavitinreplyandsaiddocument clearlyshows that the
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applicant was doing money 7 lending business and therefore, inference drawn by the trial court cannot be said to be unreasonable,butitisproperinferencebasedon admissionbeforeit.

09. Here, I may refer to the provisions of theBombay MoneyLenders Act, 1946.Section5 of thesaidActlaysdownthatnomoneylendershall carryonbusinessofmoneylendingexceptinthe areaforwhichhehasbeengrantedalicenceand exceptinaccordancewiththetermsandconditions of suchlicence. It isnotthecase ofpresent applicantcomplainant that he has any money lendinglicence.Section10oftheActlaysdown thatnocourtshallpassadecreeinfavourofa moneylenderinanysuittowhichsaidActapplies unless the court is satisfied that at the time when the loan or any part thereof, to which the suitrelateswasadvanced,themoneylenderhelda validlicence,andifthecourtissatisfiedthat themoneylenderdidnotholdavalidlicence,it shalldismissthesuit.Inotherwords,carrying onmoneylendingbusinesswithoutlicencedebarsa 8 personfromdoingmoneylendingandrecoveringthe amount through court. As per explanation to Section 138 of the Negotiable Instruments Act "debt or other liability"means a legally enforceabledebtorotherliability. So,aloan advancedbyamoneylenderwhoisdoingbusiness ofmoneylendingwithoutlicenceisnotadebtor other liabilityandprovisions of Section 138 of theActwillnotapplytosuchtransaction.Inthe light of above, it cannot be said that in the present case, that the cheque issued by the Respondentinfavouroftheapplicantwasforthe liabilityenforceableinlaw.

10. ImayalsorefertoSection32B(b)ofthe said Act,which laysdown that whoever carries on thebusinessofmoneylendingatanyplacewithout holdinga validlicenceauthorisinghimto carry on such business at such place, shall, on conviction,bepunishedforthefirstoffencewith imprisonment of either description which may extendtooneyearorwithfinewhichmayextend torupeesonethousandand fivehundredorwith 9 bothandforthesecondorsubsequentoffence,in additionto,orinlieuof,thepenaltyspecified inclause(i)withimprsonmentwhichshallnotbe less than two years, where such person is not a company, and with fine which shall not be less thanrupeesfivethousand,wheresuchpersonisa company.

11. In light of facts and circumstances as above,thisisnotacasewhereinapplicationfor leave to file appeal can be granted. Hence, applicationrejected. pnd/criap630.09 (P.R.BORKAR,J.)

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