1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1613 OF 2008 Kishor Namdeorao Kachi ..Applicant V/s. Ankush Baburao Chougule-Sawant & anr ..Respondents Mr.Girish Godbole with Mr.Satyajeet Mirajkar, Advocate, for applicant Mr.Y.M.Nakhawa, A.P.P, for the State CORAM : K.U.CHANDIWAL, J. DATE : 4TH AUGUST, 2008 P.C. . Heard. 2. Being aggrieved by the Judgment and Order of acquittal dated 28th February, 2008 passed by the Judicial Magistrate First Class, Pune, the original complainant has challenged the same and sought leave to appeal. The complainant communicates that he is in acquittance with the accused and handed over friendly loan to the accused. Such transactions as per the complainant, were dated 30th May, 2001 vide cheque No.022505 for Rs.60,000/- and thereafter, by cheque No.022526 for Rs.40,000/- 2 dated 8th March, 2002. In discharge of said liability the accused had issued a cheque of Rs.1,00,000/- dated 6th October, 2005 vide cheque No.945092 which on presentation returned dishonoured. Consequently, a statutory notice was issued to the accused which accused/respondent received but did not comply the same. 3. There was an identical matter between the same parties being Criminal Application No.1612 of 2008, in which also on merits Leave to appeal rejected today in the morning session. 3. The accused/respondent had examined Notary before whom an agreement between the complainant and accused in respect of payment was entered on 3rd January, 2005 placed at Exh.46. The agreement refers payment schedule to be made by the accused effective from 18th January, 2005, another payment on 3rd January, 2005 and thereafter, after every 20 days Rs.50,000/- in four instalments. According to the learned counsel, this agreement produced at Exh.46 at the instance of the accused saves 3 limitation. That apart, since the execution of the cheques are admitted by the accused, according to him, there was existing liability and there was no reason not to take action under Section 138 of the Negotiable Instrument Act. 4. It is brought on record and not disputed by the complainant that he is a Money Lender having Money Lending License since 5-6 years which has been re-newed time to time. He maintains Ledger as is required under the provisions of the Money Lending Act and he has accepted, as referred in paragraph nine of the Judgment that in the past he had such Money Lending transaction with atleast 7-8 persons out of which only one was noted in the records of the Assistant Registrar of the Money Lending. The complainant has also accepted the transaction which he had with the accused/respondent was not entered nor communicated, as is required under the provisions of Money Lending Act, 1946 in particular Section 18 thereof to the Assistant Registrar. There is no such entry in Ledger having advanced any sum to the 4 accused as a hand loan. It is pertinent, accused is a agriculturist and resides far away from complainant. 5. The accused/respondent had raised a plea that he has paid entire amount to the complainant and demanded the cheques which the complainant had retained as a security and inspite of receiving the amount the complainant has not returned the cheques back to the accused/respondent and filed present case. Reference of such cheque do find in Exh.46 the above referred agreement to the complainant. The plain reading of Agreement establishes that whatever cheque of accused the complainant had, will have to be returned to accused on receiving payment. Thus, it does not authorize complainant to present those cheques. The Agreement does not extend the period of limitation. Accused claimed he has paid amounts to complainant. The complainant on this aspect of the accused/respondent, has come with a new case in his evidence that he had sold his two cars to the accused/respondent before 3-4 years for which he 5 was to receive Rs.3,00,000/- to 4,00,000/- which he had received and therefore, payment of Rs.4,50,000/- referred by the accused/respondent was in relation to purchase of a car and it was not in discharge of liability. This is an important fact which the complainant was required to disclose in his complaint. However, for the reasons best known, he has suppressed all the earlier transactions between him and accused. He knew that the accused had paid amount. He claims it was towards the car transaction, then he should have referred so. That apart, the complainant did not disclose that he is a licensed money lender and present transaction will not be within the bracket of infraction of provisions of the Money Lending Act. 5. The learned Judge taking all these aspects into consideration observed that the complainant concealed so called earlier car transaction and also agreement dated 3rd January, 2005 (Exh.46) and has not come to the Court with clean hands and consequently, with one of the reasons also he did 6 not approve claim of the complainant. 6. From the record it is obvious the complainant being a licensed money lender and present transaction is money lending transaction, will not be coming within the requirements of legally enforceable debt or and liability under Section 138 of the Negotiable Instrument Act. In this situation, application for leave to appeal cannot be entertained. Same is accordingly rejected. (K.U.CHANDIWAL, J.)