1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2774 OF 2009 IN CRIMINAL APPEAL No. of 2009 Arti Ramesh Kangutkar .. Applicant. vs. Anna Rocky Fernandes and Anr..Respondents. Mr Abhijeet Desai i/b P.V. Thorat,Advocate for the applicant. Mr U. V. Nikam, A.P.P. ,for the State. CORAM: : A.R. JOSHI,J. DATE : 2nd July, 2009. P.C.:- 1. Heard rival submissions for some time. It is the application for leave to file appeal against the order of acquittal of the respondent No. 1- accused for the offence arising out of the proceeding under section 138 of the Negotiable Instruments Act, 1881( the N.I.Act for short). 2. It appears that apart the Metropolitan Magistrate was influenced by the defence of Respondent No.1-accused that she had not given any cheque towards repayment of any loan, inasmuch as she has not taken any loan from the 2 complainant. Another defence accepted by the Metropolitan Magistrate is that her cheques were stolen from her custody and were mis-used by the complainant. Reportedly, no complaint for theft was lodged with any police station. Also, no intimation was given to her bankers to stop payment of any such alleged stolen cheques and it is a factual position from the substantive evidence of bank officer examined on behalf of the defence (respondent-accused). 3. It appears that from the above two grounds the Trial Magistrate was influenced by the another submission that the transaction was barred under section 269 of the Income-tax Act, 1961 inasmuch as any loan above the amount of Rs. 20,000/- shall be made only by way of cheque and not by cash transaction. On this aspect, it is submitted on behalf of the applicant that the responsibility to accept such loan is saddled on the acceptor of the cash amount beyond Rs. 20,000/- and that he is to be penalized for the offence punishable under Section 271 of the Income-tax Act and that it was not the responsibility saddled on the person who gives loan. As such this aspect was also erroneously dealt with by the trial Magistrate. 4. All the same, in view of the above factual position, in the opinion of this Court, there is triable issue to be dealt with in the appeal in order to ascertain 3 the correctness and legality of the impugned judgment and order of acquittal. 5. In the result, present leave petition is allowed. Appeal is admitted. Call for R and P. (A.R.JOSHI,J)