JUDGMENT

Bharat P. Deshpande, J. - The appellant/ original complainant, being aggrieved by the dismissal of his complaint filed under Section 138 of the Negotiable Instruments Act (N.I. Act, for short) by the learned Magistrate, preferred present appeal on grounds as mentioned in the memo of appeal.

2. On 10/07/2017 appeal was admitted and action under Section 390 of the Code of Criminal Procedure was directed to be complied.

3. Heard learned Counsel Shri Shivan Desai who appears along with Mr. Jonathan George and Ms. Maria Viegas for the appellants,learned Counsel Shri Sanjay Mangeshkar for respondent No.1 and Shri Pravin Faldessai, Additional Public Prosecutor for respondent No.2.

4. Shri Shivan Desai submitted that the learned Magistrate had committed grave error in rejecting the complaint though there was no reply filed by the respondent/accused to the legal notice and for the first time, the accused came with a totally different story of paying part of the amount. He would submit that the defence raised by the accused was not at all probable to consider rebutting of the presumption arising in favour of the complainant. He submitted that according to the defence raised by the accused, three cheques were issued out of which one cheque was of Rs.10,00,000/-, another for Rs.5,00,000/- and the third was Rs.12,00,000/-. The question as to why the accused issued three cheques is also required to be considered while appreciating the so called defence of the accused. The explanation given by the complainant is that the cheque of Rs.10,00,000/-which was realised, was in relation to a different transaction. The learned trial Court failed to accept such explanation from the complainant and thereby committed an error which needs to be corrected in the present appeal.

5. Shri Desai would submit that the conduct of the accused is also doubtful as he never demanded the so called cheque issued by him for the purpose of security as tried to be projected in defence and therefore, the present cheque issued by the accused is certainly for the legally recoverable debt. If such defence of the accused is not considered as probable, the complaint ought to have been allowed. He submitted that the defence raised by the accused is not an honest one and contrary to each other. The complainant was not having any opportunity to deal with the defence as the accused did not submit any reply to the Show Cause Notice, which is the first point the accused needs to set up in defence in case the accused is not complying with the conditions mentioned in the notice. He placed reliance in the decision of Dr. Srushti Ashutosh Prabhu Desai v/s. Mr. Dadamiyan M. Bagewadi Criminal Appeal No. 23 of 201 decided by this Court on 03/10/2022.

6. Per contra, the learned Counsel appearing for respondent No.1 Mr. Mangeshkar while supporting the findings of the learned Magistrate, would submit that the complainant has admitted about the receipt of Rs.10,00,000/- and that too by way of cheque and therefore the accused was liable to pay only Rs.5,00,000/- as the balance amount since parties were unable to fulfill the agreement in connection with sale of property. He then submitted that once the complainant admitted about the receipt of Rs.10,00,000/- out of total amount of Rs.15,00,000/-, by no stretch of imagination, the accused was liable to pay Rs.12,00,000/- to the complainant and therefore, presumption under Section 139 of the N.I. Act stands rebutted. The complainant was therefore required to establish beyond all reasonable doubt that such cheque was issued towards legally recoverable debt. In absence of any such evidence, findings of the learned trial Court cannot be faulted with. He then submitted that the accused examined himself and probabilised his defence which needs to be accepted for want of any further evidence in favour of the complainant. He then submitted that observations of this Court in the case of Dr. Srishti Ashutosh Prabhu Desai (supra), are not at all applic