..(1).. 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.2643 of 2007 [LEAVE TO APPEAL] Harish Dasumal Dubey. ..Applicant. Versus Shyam Steel Centre and Anr. ..Respondents. .... Mr.S.S.Hardikar, Adv. for the Applicant. Mr.Y.S.Shinde, APP, for the State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 29th April, 2008. DATED : 29th April, 2008. DATED : 29th April, 2008. P.C.: 1. The applicant-orig.complainant has filed this application for leave to file appeal against the judgment and order dated 5th May, 2007 passed by the learned J.M.F.C., Thane in S.C.C. No.3688 of 2002. By the said judgment and order, the learned Magistrate acquitted the respondent No.1-orig. accused of the offence under Section of 138 of N.I.Act. 2. Heard the learned Advocate for the Applicant-Orig.complainant. Perused the judgment and order of the learned Magistrate as well as the evidence which has been annexed. ..(2).. 3. The case of the complainant is that he had advanced an amount of Rs.1,30,000/- to the accused by instalments. The complainant has admitted that the loan amount was disclosed by him in his income tax returns. He had assured to produce the income tax returns which reflects the entries of loan transaction made to the accused. However, despite the assurance given by the complainant, the complainant has not produced his income tax returns or any books of accounts to show that any loan was advanced to the accused. Useful reference may be made to the decision of this Court in the case of Vasudev Ramchand Ahuja Vs. Vasudev Ramchand Ahuja Vs. Vasudev Ramchand Ahuja Vs. Vilas Shripati Kamble Vilas Shripati Kamble Vilas Shripati Kamble reported in 2006(2) Bombay 2006(2) Bombay 2006(2) Bombay C.R.(Cri.) 1 C.R.(Cri.) 1 C.R.(Cri.) 1, wherein it is observed as under : "The observation seen by the trial Court that amount allegedly paid by complainant during period has not been reflected in income Tax returns as well as in books of account. Reasons recorded by the court below on appreciation of evidence on record, ..(3).. impugned judgment cannot be said to be unreasonable and perverse." 4. From the evidence on record, it appears that the transaction was a money lending transaction. This can be seen from the admission by the complainant wherein he has stated that "it is correct to say that I advanced the amount on interest basis to 2-3 people." The complainant has in possession promissory notes which are printed. Admittedly, the complainant does not have any money lending licence. In such case it is necessary to see whether the complainant was engaged in a lawful business of advancement of the loan or not. As the complainant has himself admitted that he had advanced an amount to 2-3 people on interest basis, reference may be made to the evidence of bank witness in case No.810 of 2002. This case was also pending between same parties. In the said case the bank witness has categorically stated that the complainant was engaged in a business of "Handsome Group". In the said case also it was stated by the complainant that he had advanced loan to many people. Thus ..(4).. from below four circumstances we can ascertain the nature of business of the complainant :- (1) He is normally in a possession of printed promissory notes which are used for advancement of loan. (2) He advanced loan to 2-3 people. (3) The said loan was advanced on interest basis. (4) The complainant does not have money lending licence. . Here it must be appreciated that, the present loan transaction is not an isolated event of advancement of the loan. The continuity and consistency of advancement of loan has been demonstrated by the answers given by the complainant. The possession of printed promissory notes has given additional weightage about the nature of business of advancement of loan i.e. money lending business. All these circumstances, ..(5).. clearly satisfies the wording "business of advancement of the loan". 5. In the case of Krishnam Raju Finances, Krishnam Raju Finances, Krishnam Raju Finances, Hyderabad Vs. Abida Sultana and another Hyderabad Vs. Abida Sultana and another Hyderabad Vs. Abida Sultana and another reported in 2004 (2) DCR 1 2004 (2) DCR 1 2004 (2) DCR 1, it is held that :- "Negotiable Instruments Act, 1881 - Section 138- A.P. (T.A.) Money Lenders Act, 1349 - Section 2 (4) and 9(2) - Dishonour of cheques - subsisting legally enforceable liability - Complainant admittedly money lender - Money lending licence not produced - Presumption against him - Since appellant had not such licence - cannot be said there was legally enforceable liability of respondent - Act declares a particular transaction illegal - It cannot be made legal for purpose of other Act - Acquittal upheld.". . In my opinion, the complainant was engaged in a business of advancement of loan on interest ..(6).. basis without any valid licence or permit. Such transaction is illegal under the provisions of Bombay Money Lenders Act and it cannot be made legal for the purpose of any other Act. The liability for the dishonoured cheque must be legally enforceable and should not be illegal or contrary to the provisions of any other Act. The transaction become illegal in aforesaid provisions. So ratio laid down in this case could be applicable to the facts of this case. 6. The learned Counsel for the applicant has placed reliance on an application by the accused wherein he has sought time for repayment of the amount. So also reliance is placed on an undertaking by the accused wherein he has requested for grant of time for payment of the amount. The learned Counsel for the applicant has submitted that in view of these two documents, the accused has admitted the liability and hence he can be held liable under Section 138 of N.I.Act. However, as already observed above that from the evidence it is seen that it is a money lending transaction. No money lenders licence has been ..(7).. produced by the complainant. This shows that the complainant is engaged in a business of advancement of loan without any valid licence or permit. Such a transaction is illegal. Therefore, it cannot be said that the cheque was issued in respect of any legally enforceable debt or liability. 7. The learned Magistrate has acquitted the respondent on the above two grounds as well as other grounds. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view. 8. It is well settled that if the view of acquittal could have been reasonably arrived at then mere circumstance that the lower Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e. AIR 1971 SC 66 AIR 1971 SC 66 AIR 1971 SC 66 Khedu Mohton and Ors. Vs. State of Bihar and Khedu Mohton and Ors. Vs. State of Bihar and Khedu Mohton and Ors. Vs. State of Bihar and C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1 C.Anthony Vs. K.G.Raghavan Nair, (2003) 1 SCC 1. ..(8).. In the case of C.Anthony C.Anthony C.Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in Appeal substitute its findings, merely because another contrary opinion was possible on the basis of material on record. 9. As observed above, looking to the evidence on record the view taken by the learned Magistrate is a reasonable and possible view. Hence, no interference is called for. Application for leave to file appeal is rejected. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)