IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 158 OF 2011 IN STAMP NUMBER MAIN NO. 294 OF 2011 VASANT ANANT SHETYE ... Applicant Versus MRS. SHIVALI CHANDRASHEKHAR DESAI AND ANR., ... Respondents Mr. A. D. Bhobe, Advocate for the Applicant. Mr. C. A. Ferreira, Public Prosecutor for Respondent no.2. Coram:- F. M. REIS, J. Date:- 7th December, 2011 P.C. Heard Shri Bhobe, learned Counsel appearing for the Applicant and Shri C. A. Ferreira, learned Public Prosecutor appearing for the Respondent no.2. None for the Respondent no.1, though served. 2. The above application is filed to grant leave to challenge the Judgment passed by learned J.M.F.C., Panaji, dated 23.08.2010, whereby the Respondent no.1-Accused has been acquitted of having committed offence under Section 138 of the Negotiable Instruments Act. 3. Shri Bhobe, the learned Counsel appearing for the Applicant has pointed out that the learned Magistrate whilst passing the impugned Order has erroneously come to the conclusion that the Applicant is a money lender and there is no evidence on that count. Shri Bhobe, learned Counsel appearing for the Applicant has further pointed out that the learned Magistrate has failed to consider that the presumptions under the Negotiable Instruments Act were in favour of the Applicant and that the case of the Applicant was that the Respondent no.1-Accused had failed to supply the cashew nuts to the Applicant in the course of his business activities and that on account of such failure, the cheque was issued towards refund of the advance given by the Applicant to the Respondent no.1. Learned Counsel has further pointed out that this aspect has not been considered by the learned Magistrate whilst passing the impugned Judgment. 4. The Respondent no.1 though served has failed to remain present. 5. Having heard the learned Counsel and on perusal of the material on record, I find that the law is well settled that mere stray transaction of giving a loan does not make a person to be a money lender. The note book sought to be relied upon by the Respondent no.1 has not been prima facie proved. The author of the note book has also not been established. The Learned Magistrate has failed to consider that the presumptions under the Negotiable Instruments Act were in favour of the Applicant. The learned Magistrate has relied upon the evidence of the husband of the Respondent no.1 Chandrashekar Dessai to come to the conclusion that the cheques issued were blank. But evidence discloses that the Applicant stated that the cheques were filled up by the husband of the Respondent no.1 at whose instance the loan was given. Apart from that merely because Cw.2 was unable to give the nature of the transaction itself would not rebut the presumption under the Negotiable Instruments Act in favour of the Applicant. In the facts and circumstances of the case, I find that, prima facie, there is justification in the contention of the learned Counsel appearing for the Applicant. Hence the applicant has made out a case for special leave to challenge the impugned Judgment. It is made clear that the findings arrived at herein are only prima facie and the same shall not bind the Court whilst disposing the Appeal on merits. 6. Hence, the application is allowed. Special Leave to Appeal against the impugned Judgment dated 23.08.2010 is granted. 7. Application stands disposed of accordingly. F. M. REIS, J. arp/*