Anoop V. Mohta, J.—This is a Revision Application dated 10th April, 2003, filed by the applicant/original complainant against the Order dated 10th December, 2002, passed by the Additional Sessions Judge, Greater Bombay, whereby, the revision application filed by the original accused-respondent No.2, was allowed and the process issued against the accused-respondent No.2 was cancelled. The Order passed by the Additional Chief Metropolitan Magistrate Mazgaon (hereinafter referred to as “the Magistrate”), dated 25th February, 2002, was set aside and the process was recalled and respondent No. 2/accused was discharged.

2. The applicant’s complaint No.1093 S/1997 dated 15th March, 1996, against respondent No. 2 for the offences under Sections 138, 141 and 142 of the Negotiable Instruments Act (for short “the Act”) was considered and the process was issued by the Magistrate. Respondent No. 2, by an application dated 12th February, 2001, prayed for recalling the process and had also prayed for discharge.. It was resisted by the applicant/original complainants. The Magistrate, after considering the merits of the matter, by an Order dated 25th February, 2002, rejected the said application. Therefore, respondent No.2 had preferred the revision application against the said Order before the Additional Sessions Judge, Mumbai. By the impugned Order, the said revision application was allowed, process was recalled and respondent/accused was discharged. Therefore, this revision by the applicants/complainant.

3. The learned counsel appearing for the applicant has relied on M/s. Modi Cements Ltd. v. Kuchil Kumar Nandi1, K. Bhaskaran v. Sankaran Vaidhyan Balan and anr.2, Sadanandan Bhadran v. Madhavan Sunil Kumar3; and K.N. Beena v. Muniyappan and anr.4 and contended that at this stage, the learned Sessions Judge ought not to have quashed the Order of issuance of process, as unless proved otherwise, presumption exist of the liability. The rights are also created in favour of the complainant, based on the cheques issued, which are instruments under the Act. Therefore, he submitted to maintain the Order passed by the Magistrate. The learned counsel for the applicant has filed on the record, a compilation of documents in support of his contention, to demonstrate that unless rebutted, prima facie, liability exists and, therefore, applicant/original complainants are entitled for the amount of the cheques.

4. The learned counsel for the respondent No.2, has supported the impugned Order and relied on Bharatbhai K. Patel v. C. L. Verma5 (since deceased) Thro POA Surjit Singh Macker and anr.6, Narinder Kumar v. Harnam, Singh. The learned counsel for the respondent has also placed on the record, a compilation of documents to support their case of no liability as there was no compliances of the contract terms.

5. Taking into consideration the documents, as well as, the Scheme of the Act, I am of the view that at this stage, prima facie, presumption is in favour of the applicant/complainant about the existence of the liability, as well as, the entitlement or realization of the cheques by the complainant. The compilation of documents placed on the record also reflects the same. As contended, the complainant has performed his part of the contract based on the terms and conditions between the parties in respect of the delivery of the material. Therefore, at this stage, mere denial of the liability by the respondent/accused, cannot be sufficient, unless the presumption, as available under the Act, is rebutted by leading cogent and concrete evidence. The learned Sessions Judge, at this stage ought not to have interfered with the reasoned Order passed by the learned Magistrate. The learned Magistrate in paragraphs 4, 5 and 6 has rightly considered the rival contentions raised between the parties and accordingly rejected the application for recalling of the process. The learned Sessions Judge ought not to have interpreted the terms and conditio