1 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 574 OF 2010 ALONG WITH CRIMINAL APPLICATION NO.585 OF 2010 Mrs. Saeeda Shabbir Nulwala ...Applicant/Orig. Complainant Vs. M/s. Delta Construction & Anr. ...Respondents/Orig .Accused WITH CRIMINAL APPLICATION NO. 585 OF 2010 Mr. Shabbir Ebrahim Nulwala ...Applicant/Orig. Complainant Vs. M/s. Delta Construction & Anr. ...Respondents/Orig .Accused Mr. Y.H. Muchhala, Sr. Advocate with Mr. Sagheer A. Khan, Mr. Javed Patel and Mr. Vaibhav Nagrekar i/b. Judicare Law Assoc., for Applicant Mr. J.A. Udaipuri i/b. Udaipuri & Co., for Respondents 1 & 2 Mrs. A.A. Mane, A.P.P for the State CORAM: SMT. ROSHAN DALVI, J. Reserved for Order on : 27th April, 2011 Date of pronouncement of order on : 3rd May, 2011 P.C. 1. These are two applications filed by two complainants against the same accused in a complaint under Section 138 of Negotiable Instrument Act, 1881 in which the Respondent/Accused came to be acquitted under the judgment dated 19 th November 2009 by the learned Metropolitan 2 Magistrate, 33 rd Court, Ballard Pier, Mumbai. 2. On the loan advanced a promissory note was executed, but no receipt was passed. The cheques are stated to be obtained on the date when the promissory note was executed. The cheques were in blank and the dates were filled-in by the Complainant. 3. Cheques are stated to be given by way of security. That would essentially imply that it would secure repayment of the loan granted under the admitted promissory note. Hence the repayment of loan has to be shown by the accused, if the cheques were not be acted upon by presentation. 4. It has been the case of the Applicants that two loans in cash of Rs.5 lakhs each came to be granted to the accused for repayment of which two cheques of Rs.5 lakhs came to be issued by the accused which came to be dishonoured. The parties have had various similar transactions earlier. Those were essentially between the Applicants and the father of the accused. 5. Two such prior transactions are admitted by the accused. The loans advanced in cash have not been accounted for in the books of accounts or reflected in the income tax returns of the Applicants. It is, therefore, contended that the loans do not represent the legal enforceable debt for which an action under Section 138 of Negotiable Instrument Act, 1881 can be taken, which contention has been accepted by the learned Metropolitan Magistrate. 3 6. It is contended that the loan is taken and is repaid. The presumption under the cheque given by way of security has to be made. To rebut that presumption the accused must show the repayment. The repayment must be of the same loan; it cannot be repayment of prior loans if the security for which the cheque is admittedly issued is not to be enforced for repayment of the disputed loan. No party can admittedly take loan, not repay it and require the cheque issued by way of security never to be presented in perpetuity. 7. The accused has shown the repayment of the loan under a chit in both the complaints on different dates, which is marked Exhibit-23. This chit must show repayment of Rs.5 lakhs, which was the loan amount or at least part payment. The chit instead shows repayment of various amounts of Rs.10 lakhs and Rs.20 lakhs. The onus shifts upon the accused to rebut the presumption in showing the return of loan. That onus cannot be discharged, even by a preponderance of probability, unless a document is shown for discharge of the same loan. A great deal of evidence has gone into the making of those chits. The learned Judge has considered the cross examination of the complainants on the respective chits at length. It would have to be seen whether those chits represent the return of the disputed loans so as not to enforce the security under the cheques. 8. Further the aspect relating to the legal enforceability of a contract or transaction in cash not reflected in the books of accounts or the income tax returns of the lender in case of large repeated transactions under the Negotiable Instrument Act would also have to be considered as a 4 question of law. 9. It is also contended that the transaction would be hit by the Money Lenders Act and has been observed to be a money lending transaction in the impugned judgment/order. The transfer does not reflect any advance at interest and hence would be outside the perview of Section 9 of the Money Lenders Act, which aspect also would require to be considered in view of the observations in the impugned judgment. 10.Consequently leave to appeal is granted. 11.The Appeal shall be on board for admission on 29 th June 2011 high on board. Issue notice to Respondent Nos.1 & 2. Applicant to serve private notice. Call for R & P. 12.In view of the above and since the entire record is shown to Court, it shall be finally heard at the stage of admission. (SMT. ROSHAN DALVI, J.)