IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1060 OF 2007 CRIMINAL APPLICATION NO. 1060 OF 2007 CRIMINAL APPLICATION NO. 1060 OF 2007 IN IN IN CRIMINAL APPEAL NO. ---- OF 2006 CRIMINAL APPEAL NO. ---- OF 2006 CRIMINAL APPEAL NO. ---- OF 2006 Shri Sharadchandra Govinddas Shah ...Applicant (Orig.Complainant) vs. Shri Dattatraya Shankar Sid & Anr. ...Respondents (Respondent No.1- Original accused) Mr.Yogesh Jadhav i/b. Mr.Sanjay Kshirsagar for the Applicant. Mr.S.S. Pednekar, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : DECEMBER 3, 2008 DATED : DECEMBER 3, 2008 DATED : DECEMBER 3, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicant and APP for the State. Perused the impugned judgment and notes of evidence and documents on record. 2. The applicant is the original complainant. The applicant had filed an application under Section 138 of the Negotiable Instruments Act. On account of dishonour of the cheque which was given by the respondent-accused to him after sending statutory notice, a complaint was filed by him. The trial court, however, dismissed the - 2 - complaint. Being aggrieved by the said order, the applicant has filed this application for leave to file appeal. 3. I have perused the impugned judgment and order of the trial court and the notes of evidence annexed to the application. In my view, there is no illegality or infirmity in the order passed by the trial court. The trial court has recorded a finding that the complainant was unable to state what was the exact amount due and payable by the respondent to the him. 4. It is the case of the applicant that he had given a friendly loan of Rs.1,05,000/- to the respondent herein and the cheque for an amount of Rs.1,05,000/- was given towards the repayment of the said loan. 5. It is the case of the accused that he had taken a loan of Rs.55,000/- from the complainant and he had paid Rs.80,000/- towards principal amount alongwith interest. It is further the case of the respondent that therefore, there was no question of making payment of - 3 - Rs.50,000/- and the cheque was taken under duress by threatening and assaulting him in his house. He has stated that the complainant had forcibly taken the cheque from the accused and therefore, the provisions of Section 138 of the Negotiable Instruments Act are not applicable. 5. The trial court after going through the evidence on record has come to the conclusion that the transaction, in question, was money lending transaction. It has further observed that the complainant had not produced anything on record to show that he had money lending licence or other document to show that the transaction was not money lending transaction. The complainant has admitted that he has received part of the amount from the respondent. He, however, has not produced extract of his accounts to show that what was the exact amount due and payable. The trial court, therefore, was justified in holding that the transaction was money lending transaction. 5. The provisions of Section 138 will not be - 4 - attracted if it is established that the transaction for which the cheque was issued was a money lending transaction and the complainant did not have authority or sanction or the licence to lend such loans. In this case, the trial court has come to the conclusion that the complainant did not possess money lending licence. On these two grounds, the complaint was dismissed. The view taken by the trial court is a plausible view. No case, therefore, is made out for interfering with the finding recorded by the trial court. 6. Hence, leave is refused. Application is dismissed. Appeal, therefore, does not survive. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)