[-1-] IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLN.NO.2724 OF 2007 IN CRI.APPEAL NO. OF 2007 Mrs.Sunita Anand Shinde ..Applicant Vs. Shri.Prakash Keshav Nibhade and Anr. ..Respondents ... Ms.Nitu Solunki i/b Kiran Jain and Co. for Applicant Mr.Y.S.Shinde APP for State ... CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. CORAM: SMT.V.K.TAHILRAMANI,J. DATE : APRIL 28, 2008 DATE : APRIL 28, 2008 DATE : APRIL 28, 2008 P.C. P.C. P.C. 1. The Applicant-original complainant has preferred this application for leave to appeal against the judgment and order dated 27.10.2005 passed by the learned Metropolitan Magistrate, 12th Court, Bandra, Mumbai in CC No. 233/SS/2003. By the judgment and order, the learned Magistrate acquitted the Respondent No.1-original accused of the offence under Section 138 of Negotiable Instruments Act. 2. I have heard the learned advocate for the applicant-original complainant. I have perused the [-2-] evidence which has been produced by him as well as the judgment and order. 3. The case of the complainant is that she had advanced Rs.83,000/- to the respondent no.1 over a period of time and by way of part payment, cheques of Rs.33,100/- and Rs.50,000/- were issued by the accused. The cheque for Rs.50,000/- was not honoured. Hence, the complaint came to be filed. 4. The complainant claims to be a money lender. However, it is seen that the licence Exhibit-C-13 came to be issued in the name of the complainant on 18.2.2003. However, the cheque for Rs.33,100/- was presented for encashment on 17.6.2003 and it was returned unpaid on 18.6.2003. The second cheque for Rs.50,000/- was issued on 2.7.2003. The complainant in the cross-examination has admitted that after payment of Rs.33,100/- the accused had not availed any loan. Thus, material on record leads to a legitimate inference that the amount was advanced by the complainant to the accused before money lending licence came to be issued in the name of the complainant on 18.2.2003. In view of these facts, the learned Magistrate relying on the [-3-] decision in the case of Krishnam Raju Finances, Krishnam Raju Finances, Krishnam Raju Finances, Hyderabad Vs. Abida Sultana and Anr. 2004(2) DCR Hyderabad Vs. Abida Sultana and Anr. 2004(2) DCR Hyderabad Vs. Abida Sultana and Anr. 2004(2) DCR 1, 1, 1, held that "there was no legallly enforceable liability as what is illegal under one Act, cannot be legal under any other Act or for any other purpose". Therefore, once the complainant stated to be a money lender and does not have licence for such business, it could not be said that there was legally enforceable right for recovery of the amount. Once an Act declares a particular transaction is illegal, it cannot be made legal for the purpose of any other Act. The facts in the present case are directly similar to the facts in the case of G.Pankajakshi Amma and Ors. V/s. G.Pankajakshi Amma and Ors. V/s. G.Pankajakshi Amma and Ors. V/s. Mathai Mathew (D) Thr.Lrs. and Anr. in Civil Mathai Mathew (D) Thr.Lrs. and Anr. in Civil Mathai Mathew (D) Thr.Lrs. and Anr. in Civil Appeal Nos. 4101-4102 of 1998 Appeal Nos. 4101-4102 of 1998 Appeal Nos. 4101-4102 of 1998, pronounced on 31.3.2004, wherein the Apex Court held that the plaintiff had admitted that he had not maintained the record, as postulated by Section 9 of the Kerala Money Lenders Act, 1958. In this context, it wsa observed that "according to the 1st respondent, these transactions were to be unaccounted transactions. According to the 1st respondent all these amounts are paid in cash. If there are unaccounted transactions, then they are [-4-] illegal transactions. No court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case, as there are unaccountded transactions, the Court could not have lent its hands and passed a decree". 5. In view of the evidence on record, the learned Magistrate reached the conclusion that the complainant has not succeeded in establishing that at the time the loan was advanced to the accused, the complainant had valid licence under the Bombay Money Lenders Act, 1946. The learned Magistrate held that in such case, Section 10 of the Act comes into play. As the bar under Section 10 of the Act operates, it cannot be said that the debt is legally recoverable. Looking to the evidence on record, the view taken by the learned Magistrate is a reasonable and possible view. Hence, no interference is called for. 6. In this view of the matter, application for leave to appeal is rejected. [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.] [SMT.V.K.TAHILRAMANI, J.]