JUDGMENT :

S.M. MODAK, J.

1. Heard learned Advocate Shri Sawant for the Appellant-Complainant and learned Advocate Ms. Ayubi appointed by the High Court Legal Services Committee for the Respondent-Accused. The Court of Additional Judicial Magistrate First Class Pune, vide judgment and order dated 30th July, 2012 was pleased to acquit the Respondent for the offence punishable under section 138 of Negotiable Instruments Act. All the points were answered in favour of the Appellant except the point about carrying a money lending business by the complainant without license.

2. It was held against the complainant and finally the Respondent was acquitted. This is the complainant’s Appeal. Parties will be referred to by their original status.

3. So the issue involved in this Appeal is whether on the basis of the documents produced by the accused, can it be said that the complainant was carrying a money lending business and without license. The relevant findings are Para No. 10 to Para No. 17. According to learned Advocate Shri Sawant for the complainant, the trial Court has not considered the entire provisions of Bombay Money Lenders Act and particularly the meaning of business of money lending, loan, whereas, according to learned Advocate Ms. Ayubi when there are certified copies of documents that is complaint and judgment at Exhibit-25, 26, 27, 28 and 29 are filed what more is required.

4. If loan is advanced, on the basis of negotiable instrument, it falls within the meaning of a ‘loan’ and it does not fall within the meaning of ‘business of money lending’. According to him, section 10 of the said Act prevents the Court from passing a money decree in a suit for recovery of a loan advanced by money lenders without a license. According to him, there is prohibition for suit only and it is not applicable for prosecution under section 138 of Negotiable Instrument Act. To buttress his submission he relied upon a judgment in place of Parekh Aluminex Limited vs. Ashok Commercial Enterprises and Another, 2014 BCI 466.

5. The complainant advanced an amount on several occasion to the accused by way of hand loan. The total amount of Rs.1,50,000/-. The details are as follows:

(i) Rs.50,000/- (Rupees Fifty Thousand only) by cheque dated 7th December, 2009.

(ii) Rs.50,000/- (Rupees One Lakh Fifty Thousand Only) by cheque dated 7th September, 2009.

(iii) Rs.30,000/- (Rupees Thirty Thousand only) by cheque on 18th February, 2010 by way of cheque.

(iv) Rs.20,000/- (Rupees Twenty Thousand) by way of cash on 17th May, 2010.

6. There is receipt executed by accused on 17th May, 2010 at Exhibit-17 (page no. 39). For repayment accused issued a cheque drawn on Bank of Maharashtra, Paud road branch for 1,50,000/- (Rupees One lakh Fifty Thousand only). It got dishonored due to insufficiency of funds. Complainant issued a notice dated 19th April, 2011. Respondent issued reply dated 2nd May, 2011 Exhibit-22 (page no. 48). Accused demanded certain documents and denied compliance with the notice unless those documents are supplied. Complainant has not complied with the said requisition. Complaint was filed. During trial complainant examined himself and relied upon documents. Accused cross-examined him and produced certain documents.

7. Learned Advocate Ms. Ayubi tried to contend that the liability is not proved. She also submitted that in fact her client has repaid the entire amount by installments. My attention is invited to answer given to question no. 14 recorded under section 313 of Code of Criminal Procedure Code (page no. 62). It is true that accused has admitted the payment by way of cheque amount of Rs.1,30,000/- (Rupees One Lakh Thirty Thousand Only) but denied receipt of Rs.20,000/- (Rupees Twenty Thousand Only). He has also pleaded about repayment of that amount.

8. It is true that the theory of repayment is neither substantiated by adducing evidence or not by cross-examination of the complainant. So theory of repayment has failed. In order to prove advancing Rs.1