((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3325 OF 2008 Mangal Sunil Lachake Applicant versus The State of Maharashtra Respondent Ms.V.S.Jagdale for applicant. Madhav Jamdar for respondent. Ms.A.T.Javeri, APP for the State. CORAM : A.S.OKA, J. DATE : 02nd April 2009 PC : 1. Heard learned advocate for the applicant in support of this application under sub section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant is the complainant in a complaint filed alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. The case of the applicant is that in the year 2003 she had advanced a sum of Rs.60,000/- to the second respondent-accused. The said amount was advanced in January 2003 and second respondent had agreed to repay the same by June 2003. In discharge of the alleged liability, the second respondent issued cheque dated 20th September ((-2-)) 2003 in the sum of Rs.40,000/- in favour of the applicant. It is stated that during pendency of another complaint filed by the applicant, the second respondent paid a sum of Rs.20,000/- to the applicant and thereafter executed demand promissory note in the sum of Rs.40,000/- in favour of the applicant. It is stated that on the date of execution of the promissory note, a post dated cheque bearing date of 15th November 2005 in the sum of Rs.40,000/- was issued by the second respondent in discharge of the said liability. The said cheque was dishonoured on the basis of which the complaint was filed. 2. The Trial Court had convicted the second respondent. The Appellate Court has interfered and has passed the order of acquittal. The finding of the learned Appellate Court is that the defence of the second respondent that the amount was repaid by him deserves to be accepted. Another finding is that the applicant is a professional money lender. The Appellate Court found that the applicant was admittedly not possessing a money lending licence and, therefore, the alleged debt cannot be said to be a legally enforceable debt. ((-3-)) 3. The learned counsel appearing for the applicant submitted that there was no evidence on record to show that the applicant was carrying on money lending business. Her submission is that the alleged receipt executed by the applicant on which reliance was placed by the second respondent has not been proved. She submitted that the demand draft of Rs.30,000/- issued by the second respondent was in relation to some other transaction. 4. I have carefully considered the submissions. It must be noted here that the case of the applicant is that during pendency of the earlier complaint, in the year 2003, a sum of Rs.20,000/- out of the loan amount of Rs.60,000/- was repaid by the second respondent and a demand promissory note was executed in the sum of Rs.40,000/- favouring the applicant. The case is that when the cheque in dispute was issued it was a post dated cheque. On this aspect it will be necessary to refer to the cross examination of the applicant. The applicant stated in the cross examination that her main business is of running a beauty parlour. She admitted that she had advanced the amounts to other persons and she had ((-4-)) maintained an account of the same. She stated that she was unable to tell the total amount advanced by her to various persons. She admitted that she was not possessing a money lending licence. She stated that she was not filing income tax return. She admitted that she had paid amounts to various persons by cheques as well as in cash. In the cross examination she was shown a receipt in the sum of Rs.35,000/- allegedly signed by her in favour of the accused. She identified her signature on the receipt. She stated that she had engaged services of an advocate Mr.Gaikwad. She stated that the said Advocate Mr.Gaikwad obtained her signature on a blank paper. When her attention was invited to the fact that her signature is appearing on a revenue stamp, she admitted that the signature on revenue stamp is made in dealings regarding money and for filing the document in the Court, the signature on the revenue stamp is not made. When she was confronted with the fact that she has received a sum of Rs.30,000/- by a demand draft she admitted the fact that the said amount was received but stated that the said demand draft was in connection with some other transaction. She admitted that she was not possessing any ((-5-)) document to show that apart from the amount subject matter of the complaint, any other amount was advanced by her. On the basis of this evidence the Appellate Court has recorded a finding that the second respondent has proved his defence that he had paid a sum of Rs.65,000/- to the applicant. 5. In a criminal case, the burden on the complainant and the burden on the accused to prove their respective cases is different. Normally, the complainant is required to prove the offence beyond reasonable doubt but the accused can prove his defence on preponderance of probability. From the cross examination of the applicant, the defence of the second respondent regarding payment of sum of Rs.65,000/- was established. The explanation of the applicant for receiving a sum of Rs.30,000/- by the demand draft was that it was received in connection with some other transaction. However, she admitted that she did not have any documentary evidence to show that she had advanced any amount to the applicant. The view taken by the Appellate Court is a probable and possible view. No case is made out for grant of leave. The ((-6-)) application is rejected. 6. It is, however, made clear that the the observations made in this order are for limited purposes of examining the prayer for grant of leave and none of the observations made herein shall be construed as any finding on the rights and liabilities of the parties. (A.S.OKA, J.)