1 appln 641 of 2011 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.641 OF 2011 Mulchand Ramji Saiya .. Applicant. -versus Kirti Stores and ors .. Respondent. Mr. Q. M. Ashfaq, for the Applicant. Mr. Pankaj Sutar and Mr. Nikhil Choudhari i/b M/s Khaitan & Jaykar for respondent Nos 1 to 6. Mrs. U. V. Kejariwal, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 21st July, 2011 P.C. 1. This is an application for leave to file appeal against acquittal of the respondents, for offence punishable under Section 138 of the Negotiable Instruments Act, rendered by the learned Metropolitan Magistrate, 13th Court, Dadar, Mumbai. Learned Magistrate had referred to latest judgment of Supreme Court in case of Rangappa -vs- Sri Mohan, 2010 All SCR 1349, but does not seem to have noticed that Rangappa -vs- Sri Mohan, over-rules judgment in case of Krishna Jnardan Bhat -vs- Dattatraya G. Hegde, 2008, AIR SKW 738, to the extent of absence of presumption about legally enforceable liability. Therefore, in view of the judgment of Rangappa -vs- Mohan, cheque issued 2 appln 641 of 2011 is to be presumed to have been for legally enforceable liability. The learned Judge also held that this was unaccounted money which was not reflected in the books of accounts and no intimation of this loan was given to the Income Tax authorities. Now this aspect including implication of section 271-D of the Income Tax Act, have been considered in Krishna Janardhan Bhat’s case. On this question of fact as to whether advance could be held to have been made if a person making the advance had not informed Income Tax Authorities, the observations in Krishna Janardan Bhat, do not lead to any rule of law, that because Income Tax Authorities have not been informed the loan advanced could not be recovered. If such view is taken the very object of bringing Section 138 on the statute book, namely to bring unaccounted money into account books by eliminating cash transactions and replacing them by cheques would be defeated. Learned Magistrate also held that the transaction was of money lending done without license, therefore, the debt could not be legally recoverable. Learned counsel for respondent placed reliance on two judgments of this court. In Anil Baburao Kataria -vs- Purshottam Kawane, 2010 (2) Mh. L.J. P. 466, wherein a learned Single Judge of this Court specifically taken this view that loan advanced by money lender without license was not a legally recoverable debt or other liability and the provisions of section 138 of the Negotiable Instruments 3 appln 641 of 2011 Act, did not apply to such transactions. He also relied on order passed, in Criminal Application No.5397 of 2010, decided on 18th April, 2011, where too the learned Single Judge has taken view that since money lending license was not produced, the trial Court was justified in holding that the debt is not legally enforceable debt as per provisions of Money Lenders Act. In both the Judgments definition of ‘loan’ under Section 2(9), of Bombay Money Lenders Act, has not been noticed. A loan under Money Lenders Act has been specifically defined not to include an advance against a cheque. Therefore, all these questions would require consideration. Hence leave granted. Admit. Call for Record and Proceeding. Since learned counsel for respondent states that he would be appearing for respondent, action under section 390 of Code of Criminal Procedure is not necessary. (R. C. CHAVAN, J.)