1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1343/2009 Anjana Jayram Thadani Applicant Vs. The State of Maharashtra & Anr. Respondent Mr.P.K.Dhakephalkar with Ms.Manorama Mohanty i/b M/s S.K. Srivastava & Co.for the Applicant Mr.Y.M.Nakhawa,APP for State Coram: Mrs.Mridula Bhatkar,J. Reserved On : 6/4/2009 Pronounced on :6/5/2009 J U D G M E N T . This application is filed for leave to file an appeal against the judgment and order dated 7/1/2009 passed by the learned Metropolitan Magistrate,Mumbai in the complaint under section 138 of the Negotiable Instruments Act . The learned counsel for the applicant has submitted that the trial Court acquitted the accused on two grounds i.e. (1) The applicant is a money lender and the debt amount is not legally enforceable liability ; (2) A copy of the notice was not produced by the applicant and photo copy i.e.secondary evidence was not produced as per section 65 of the Evidence Act.The learned counsel has submitted that it was necessary for the accused to put specific question in the cross examination of the complainant that she was dealing with money lending business or she was money lender. 2 In the absence of such specific suggestion the fact of illegal money lending was wrongfully inferred by the learned trial Judge. Money lending on some occasions to the friends or relatives cannot be brought under section 2(10) of The Bombay Money-Lenders Act,1946. Secondly, finding of the Trial Court that production of photo copy of the notice by not following procedure u/s 65 of the Evidence Act is erroneous. He has further submitted that the complainant is old , and has given loan to the accused out of her savings . This fact should have been taken into account by the trial Court. In support of his submissions he has relied upon the following rulings. 1] Budhu Sao & Ors.Vs.Baleshwar Prasad Sao & Anr.AIR ,1985 S.C.602. 2] Ka Lcilda Wallang & Ors.Vs.U.Lokendra Sujam & Ors.,AIR ,1987 S.C.2047 3] Mahendra Singh Vs.Jagbir(1993)2,Supreme Court Cases.34 4] Ratakonda Raghunaidu Vs.Kolla Sivram Prasad and Anr.,2003(2)ALD (Cri.),1956,II (2004) B.C.269 . 5] K.N.Beena Vs.Muniyappa & Anr.,2002(1) ALL M. R.,277(S.C.) 6] (Krishna Janardan Bhat Vs.Dattaram G.Hegde),2008,ALL MR(Cri.)1169 (S.C.) 3 In Ratakonda Raghunaidu Vs.Kolla Sivram Prasadand Anr.,2003 (2) ALD (Cri.),1956,II (2004) B.C.269 it is observed that :- '' In view of the above decisions,it is clear that it is not enough merely to show that a person has lent money at remunerative rate of , but he has continued the transactions and only such person whose regular business is to advance moneys would come within the definition of ''money- lender '' , and the person who advances moneys casually does not fall within this definition,and the burden to prove that a person is a within this definition is on the person who asserts it.' ' 2] Read application, judgments cited on behalf of the applicant , evidence and the relevant documents. The rulings relied upon by the petitioner are distinguishable on the facts, as in the case in hand isolated single admission is not sought from the complainant but a specific case is put to her in the cross examination. Each transaction of dishonouring of the cheque or any other negotiable instrument cannot attract section 138 of the Negotiable Instrument Act . For this purpose it is necessary for the Court to look into the facts of each case which vary in every transaction. 3] In the present case, specific questions were put to the complainant on the point of money lending and she has given clear admissions that she has lent money to 2-3 persons and has given total Rs.5,00,000/- and Rs.50,000/- to the accused. She has admitted that she has received interest on the same. The complainant has further deposed that her relations with the accused were not friendly 4 but commercial.The complainant was not holding money lending license. The complainant has admitted in the cross examination that her acquaintance with the accused was through her brother Gautam and the accused was not her family friend. So the monetary transaction was commercial. It is significant to note that the complainant has further admitted that when the transaction has taken place the terms and conditions were settled by her brother Gautam. It is to be noted that the learned counsel appearing for the complainant/petitioner has pointed out that there was another complaint under section 138 of the Negotiable Instruments Act filed by Gautam Thadani, i.e.the brother of the complainant against the same accused. The learned counsel for the complainant has set up fragile challenge on the point that a direct question whether the complainant was carrying money lending business or not was not put to the complainant. In fact in the cross examination questions having similar intended answers were put and admissions were sought.The submissions of learned counsel that acts of giving money to 2-3 borrowers should not be called as money lending business are not acceptable. The repetition of the act in a particular manner itself is sufficient to draw the inference that certain activity is a business. 4] So far as the presumption under section 139 of the Act and burden of proof are concerned I place reliance on the ruling (Krishna Janardhan Bhat Vs.Dattatray G.Hegde [(2008) 4 Supreme Court Cases 54]. 5 In paragraphs 30 and 31 the Apex Court dealt with the presumption under section 139 of the said Act. Paragraphs 30 and 31 read thus : '' 30] The proviso appended to the said section provides for compliance with legal requirements before a complaint petition canbe acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. 31] The courts below,as noticed hereinbefore, proceeded on the basis that section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion,committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box andunless he does so he would not be discharging his burden. Such an approach on the part of the courts,we feel,is not correct. 5] Legally enforceable debt or liability is substantive ingredient of section 138 of the Negotiable Instruments Act. So the burden to 6 establish all the ingredients of Section 138 is obviously on the complainant. Thereafter on the background of presumption of Section 139 of the Negotiable Instruments Act the defence of the accused is to be considered. It is to be noted that strict proof of facts is not required to rebut the presumption as the standard of proof in the defence of the accused is not that high as required for the prosecution. If the accused is successful in creating doubt or raising question mark in the mind of the Judge then it is sufficient to rebut the presumption.Needless to say that imaginary,fictitious and baseless defence does not shake the notion of presumption. In the present case the admissions sought by the accused set highly probable defence of money lending business and accused is entitled to get the benefit of this circumstance. Thus, the transaction which is not legally permissible cannot be entertained under section 138 of the Negotiable Instrument Act.No error or illegality is found in the finding given by the learned Trial Judge. 6] The Complainant did not produce office copy of the notice during his evidence. However,after cross examination an application was submitted to take the photo copy of the notice as secondary evidence on record. It is true that the secondary evidence is to be adduced by following procedure under section 65 of the Indian Evidence Act In the present case the accused was aware of such notice and has cross examined on it. Hence it is technical issue and the photo copy of the notice can be admitted at latter stage of the evidence subject to the opportunity to cross examine on that issue. 7 7] No good reason is shown for the miscarriage of justice. Hence leave to file appeal stands rejected. (Mrs.Mridula Bhatkar,J.)