A solitary instance of giving a loan does not make a person a money lender.

By this appeal, the appellant is challenging the acquittal of the first respondent from an offence punishable under Section 138 of the Negotiable Instruments Act (the Act, for short).

2. The brief facts necessary for the disposal of the appeal may be stated thus:

That, the original complainant, Smt. Sulekhabai Chowghule (since deceased) had given a hand loan of Rs.30,00,000/-to the first respondent on 28.04.2009. The complainant is having an account with the Lokmanya Multipurpose Co-operative Credit Society Limited, Baina Branch (the Credit Society, for short). The complainant had requested the said Credit Society to issue a cheque to the first respondent, debiting her Savings Bank Account bearing Account No. 211. At her request, the said Credit Society issued a cheque No. 843394 dated 28.04.2009, drawn on the Oriental Bank of Commerce, in favour of the first respondent. At the request of the Manager of the Credit Society, the Oriental Bank of Commerce transferred a sum of Rs.30,00,000/-to the account of the first respondent with ICICI Bank Limited. The first respondent had executed a Loan Security Bond (Exhibit-17) and a Promissory Note (Exhibit-18), in the favour of the complainant. Further, according to the complainant, the loan amount was repayable on demand and if, no demand is made within a maximum period of one month i.e. on or before 28.05.2009. The first respondent had passed a post dated cheque in favour of the complainant for Rs.30,00,000/-on 28.05.2009, which was drawn on his account with ICICI Bank Limited, Vasco Branch, with instructions to present the said cheque for realisation, in the event of failure of repayment. When the cheque was deposited for realisation with Bank of Baroda, Vasco Branch, on 31.10.2009, it was returned unpaid on account of insufficient funds, to the complainant, on 02.11.2009. The complainant thereafter issued a notice to the first respondent on 19.11.2009, to which a reply was sent by the first respondent on 05.12.2009. While denying the allegation that the first respondent had obtained a hand loan of Rs.30,00,000/-, it was claimed that the first respondent had approached for a loan to the said Credit Society at Baina, and the Manager, Shri Madhukar Khot had asked for a cheque, as a security for the loan. Thus, it was contended that the subject cheque was given as security for sanction of the loan, which never materialized. Thus, it was denied that the cheque was issued towards repayment of loan of Rs.30,00,000/-to the complainant. Thus, a complaint under Section 138 of the Act, came to be filed before the learned Judicial Magistrate First Class, Vasco-da-Gama.

3. At the trial, the complainant, Smt. Sulekhabai Chowghule, examined herself (PW-1) along with Shri Madhukar Khot (PW-2), the Manager of the said Credit Society, Ms. Violet E. Das (PW-3), Manager of the Oriental Bank of Commerce and Ms. Saiprithi Shirodkar (PW-4), Branch Manager of the ICICI Bank, Vasco Branch and also Shri Anil Gaindhar (PW-5), the Chief Manager of Bank of Baroda. The complainant also produced certain documents, including the Statement of Account of the ICICI Bank of the first respondent, the subject cheque, the notice and her Statement of Account with Bank of Baroda, Vasco Branch.

4. The first respondent did not lead any defence evidence.

5. The learned Magistrate framed three points for determination, as under:-

(a) Whether it is proved that the cheque was issued towards a legally enforceable debt ?

(b) Whether it is proved that the cheque was returned dishonoured for insufficient funds ? and

(c) Whether a demand in writing was made by the complainant to the accused ?

6. The learned Magistrate answered the points at (a) and (b) in the negative and point at (c) in the affirmative. In the face of the finding against point nos. (a) and (b), the first respondent came to be acquitted. That is chall