N.A. Britto, J.––This revision is directed against order dated 12.7.2006 of the learned Sessions Judge, Margao.

2. Some facts are required to be stated to dispose of the present revision.

3. The petitioner is the complainant who prosecuted the accused for bouncing of a cheque bearing No. 877680 dated 30.7.2005, for Rs. 14,66,000/-. The learned Magistrate was pleased to issue process against the accused under Section 138 of the Negotiable Instruments Act, 1881, by order dated 14.10.2005.

4. The accused preferred a revision application against the said order dated 14.10.2005 and the learned Judge, by his order dated 12.7.2006, was pleased to allow the said revision and set aside the order of the learned Magistrate issuing process against the accused. In allowing the revision, the learned Sessions Judge came to the conclusion that a bare reading of the complaint and also the documents relied upon the complainant clearly indicate that the transaction of sale of the vessel was of a benami transaction, since according to the complainant, the amount of the cheque was a debt payable by the accused, being the amount due to the complainant towards the sale transaction. As per the learned Sessions Judge, the entire transaction of sale in respect of the said vessel was a benami transaction and even assuming that the said vessel was purchased by the complainant, the fact remains that it is a benami transaction, and as such, the transaction is clearly prohibited by virtue of Section 4 of the Benami Transaction (Prohibition) Act, 1988, and that being the position, the amount of the cheque could not be recovered as a legally enforceable debt.

5. Admittedly, there were two cheques which were issued by the accused to the complainant on account of the sale of the said Lunch/vessel. The first was dated 27.7.2005 for a sum of Rs. 3,50,000/-, which has been honoured by the accused and it is the second cheque dated 30.7.2005 for Rs. 14,66,000/- which came to be dishonoured and the complainant having addressed the statutory notice to the accused and the accused having failed to comply the same, the complainant filed the complaint.

6. As stated by the complainant, the complainant was the owner of a motor Launch known as Mon-Jhon, registered under No. MRH 544 in the office of the Captain of Ports, Panaji. As per the complainant, the said vessel was purchased by him in February, 2002, from one Mr. Bharat K. Pednekar, but as the complainant was not a member of the Mormugao Launch Owners Association, it was registered under mutual agreement in the name of Mr. Edward Carvalho, the father of the accused.

7. As stated by the complainant, it is the complainant who was alone collecting all the hire charges due to him and meeting all the liabilities of the said vessel. According to the complainant, in June, 2005, in order to meet certain exigencies, he requested Mr. Edward Carvalho, to transfer the registration in the name of the accused and the accused swore an affidavit which was produced before the concerned officials for such transfer and, accordingly, the endorsement was made on the certificate of registration, transferring the registration in the name of the accused. The complainant and the accused have been friends since childhood.

8. The complainant also stated that in June, 2005, under his consent, the accused offered the said vessel for sale for a price of Rs. 21,50,000/- and it was agreed by both that anything above Rs. 21,50,000/- would be the brokerage/commission of the accused. The offer for sale was jointly accepted by Santosh Naik and Mr. Hipolito Barreto and on 27.6.2005, the said prospective purchasers paid Rs. 2,00,000/- in cash, as part payment of the agreed sale consideration to the accused, who received the same on behalf of the complainant and issued a receipt to them.

9. The complainant also stated that on 25.7.2005, the prospective purchasers paid a sum of Rs. 11,50,000/- by demand draft to the accused and towards the balance amount, th