1 APPLN 1290 &1291 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1290 OF 2011 WITH CRIMINAL APPLICATION NO.1291 OF 2011 Smt. Meena P. Bhuva .. Applicant -versus M. G. Kacharia and anr .. Respondents. Mr. R. M. Tiwari, for the applicants. Mr. K. V. Saste, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 8th December, 2011 P.C. 1. These two applications for leave to file appeal arise out of two judgments rendered by the learned Additional Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai, acquitting the respondent for the offence punishable under Section 138 of the negotiable Instruments Act. The learned Magistrate held that the loan advances were not disclosed in the books of accounts and Income Tax returns of the complainant. The learned Magistrate noted that in the capital account for the year 2003-04 loan of Rs.22 lacs given to the accused was mentioned. The learned Magistrate also held 2 APPLN 1290 &1291 that the complainant did not show any license for money lending. First advance of money on interest against negotiable instrument is not loan as defined under the Money Lenders Act and therefore, does not attract the provisions of Money Lenders Act. Secondly whether the advance was reflected in return filed with the Income Tax Authorities, is only a matter which can be considered by the Court as one of the circumstances indicative of possible absence of advance and is not conclusive of the matter. The learned Judge also held that dishonour of cheque because of closure of account cannot be said to be dishonour for want of sufficient funds. All the same, it is not that dishonour of cheque. Insufficiency of funds only attracts penal provisions of Section 138. In view of this, leave granted in both the applications. Appeals admitted. Call for the R & P. Action under Section 390 of Code of Criminal Procedure. 2. Applications accordingly stand disposed of. (R. C. CHAVAN, J.)