1 Appln 2893-10 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2893 OF 2010 Eknath Shripat Patole .Applicant V/s. The State of Maharashtra & anr. .Respondents WITH CRIMINAL APPLICATION NO.2894 OF 2010 Sneha Eknath Patole .Applicant V/s. The State of Maharashtra & anr. .Respondents Ms Sharmila Kaushik i/b. Mr.R. Sathyanarayanan, Advocate, for the Applicant Mrs.U.V.Kejariwal, APP, for Respondent No.1 - State Mr.Satyajeet M. Mirajkar, Advocate, for Respondent No.2 CORAM : R.C.CHAVAN, J. DATE : 25TH JULY, 2011 P.C. . Heard the learned Counsel for the respective parties. 2. These two applications for leave to file an Appeal have been filed by husband and 2 Appln 2893-10 wife against the same respondent, who had issued cheques in their favour and the cheques got dishonoured. The defence taken by the accused was that the amount which had been borrowed by the accused and for which the cheques had been issued had been repaid to the Complainant. The learned Magistrate held that this defence was not proved and therefore, convicted the respondent. On appeal the Sessions Court acquitted the respondent holding among other things that the presumption in respect of legally enforceable debt or liability could not be read into the provisions of Section 139 of the Negotiable Instruments Act which is now incorrect in view of the observations in Rangappa v. Mohan, reported at 2010 CRI.L.J.2871. The learned Sessions Judge also held that the transaction was one of the money lending without license and therefore, relied on Judgment in Anil Baburao Kataria Vs. Purshottam Prabhakar Kaware, reported at 2010 Cri.L.J. Vol-I 1217. 3 Appln 2893-10 He reversed the conviction. First, in Anil Baburao Kataria Vs. Purshottam Prabhakar Kaware, the provisions of Section 2, sub- section (9) of Clause (f) of the Bombay Money Lenders Act had not been brought to the notice of the Court. An advance of money in excess of Rs.3000/- against a negotiable instrument is excluded from the definition of loan and therefore, does not amount to money lending. However, the learned Counsel for the applicant placed a reliance on Judgment of this Court in Prakash Rao Versus Pedro Vincent Dias in Criminal Revision Application Nos.72, 73 and 74 of 2008 decided at Panaji, Goa on 23-03-2010 where it was held that Judgment in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde is not an authority for the proposition that merely because the loan was not reported to the Income Tax authorities, it becomes non- recoverable. Judgment of this Court in Sanjay Mishra Versus Kanishka Kapoor @ Nikki & anr., reported at 2009(3)Bom.C.R.(Cri.)157 follows 4 Appln 2893-10 Judgment in Krishna Janardhan. In view of this, leave granted. 3. Admit. 4. Call for R & P. 5. Action under Section 390 not necessary. (R.C.CHAVAN, J.)