IMPORTANT POINT
Loan advanced by a money lender who is not having money lending licence is not a debt or other liability and provisions of Section 138 of N.I. Act will not apply to such transaction.

P. R. Borkar, J. — This is an application for leave to file appeal against the judgment and order of acquittal passed by the learned Judicial Magistrate, First Class (1st Court), Ahmednagar in S.T.C. No. 3528 of 2005 decided on 11.12.2008.

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.4,00,000 and assured to repay the same within one or two months. The applicant paid the amount. However, according to the applicant, the respondent failed to repay the amount and therefore demand was raised by applicant pursuant to which the present respondent issued cheque dated 24.5.2005 drawn on Post Office Savings Bank, Ahmednagar Branch, for Rs.2,00,000. On 25.5.2005, the applicant deposited that cheque in the said bank for encashment, but the same was dishonoured on the ground of insufficiency of funds.

3. Thereafter on 4.6.2005, the applicant issued notice to the respondent calling upon him to pay the amount within fifteen days and since the amount was not paid, the complaint under Section 138 of the Negotiable Instruments Act was filed. The trial court took cognizance of the complaint and issued notice to the present respondent who then appeared in the matter. The trial was conducted and ultimately the order of acquittal was passed which is sought to be challenged by seeking leave of this court to file appeal.

4. Heard Shri P.S. Pawar, learned Advocate for the applicant and Shri Amol N. Kakade Advocate for the respective parties. Both have taken me through various documents and the judgment of the trial court. The trial court has taken into consideration the admission given by the applicant in his cross-examination that he had filed criminal cases for commission of offence punishable under Section 138 of the Negotiable Instruments Act, against the persons mentioned in paragraph 20 of the judgment. Those persons are (1) Ananda Gahile, (2) Vijay Kale, (3), Rajendra Dake, (4) Vinay Khisti, (5) Shivaji Chaure, (6) Santosh Malwade, (7) Akrur Kaspate, (8) Kanhayalal Rathod, (9) Sachin Joshi and (10) Prakash late. The applicant denied that the cases involved the amounts total of which is more than Rs.80.00,000.

5. It is argued on behalf of the respondent that the transactions with so many persons clearly indicate that the transaction with the respondent was not of a hand loan transaction, but it was a money lending transaction and the complainant/applicant is doing money lending business without licence.

6. In paragraph 16 of the judgment, the learned trial court referred to evidence of DW1 Premlata Balasaheb Parkhe at Ex.50 who is an employee of the Income Tax Department. She produced income tax returns of the present applicant at Exhibits 52 and 53 and in paragraph 16 of the judgment, the trial court noted that the total income of the applicant in the year 2002-03 was Rs.60,000 and for the year 2003-04, it was Rs.57,989 and it is amply clear that the person having such income could not have lent amount of Rs. 4.00,000 in lump sum to the respondent accused. There is no other documentary evidence led by the complainant to prove that he actually lent Rs. 4.00,000. It is the case of present respondent that he borrowed amounts of Rs. 10,000 and Rs. 20,000 from the applicant and repaid Rs. 50,000. However, while giving loan, the applicant/complainant had obtained blank cheques from the respondent and taking advantage of the same, the present case is filed.

7. The trial court has come to the conclusion that the complainant could not have an amount of Rs. 4,00,000 in lump sum at a time and there is nothing on record that he got some windfall after March 2004 so that he could give loan of Rs. 4,00,000 at a time to the accused respondent in September-October, 2004. Moreover, it appears from the admission of the complainant in his cross-examination referred to above that he is doing money lending business. He adm