Sonia Gokani, J.

1. This is an appeal under Section 378 of the Code of Criminal Procedure, 1973, where, the original complainant has approached this Court being aggrieved and dissatisfied with the judgment and order passed by the learned Judicial Magistrate, First Class, Visavadar, Junagadh (for short, 'trial Court'), rendered in Criminal Case No. 34 of 2017, Dated: 21.12.2017, whereby, opponent No.2 is ordered to be acquitted from the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('NI Act', hereinafter).

2. The case of the appellant-original complainant is that he is possessions two vehicles, i.e. one is a mounting vehicle bearing registration No. GJ-3-EA-9785 and another is compressor vehicle bearing registration No. GJ-3- EA-9784, which he sold to the original accused opponent No. 2, herein, by executing an agreement on 28.12.2015, whereby, the total value of both the vehicles was fixed at Rs. 60.51/- lakh. Opponent No.2 paid a sum of Rs. 10.51/- lakh in cash and had given five post dated cheques of Rs. 10/- lakh each towards the remaining amount of consideration to the appellant.

2.1 The appellant filed Inquiry Case No. 9 of 2016, as the remaining amount of consideration was not paid, before the Court of the competent Court at Visavadar. The court ordered to conduct an inquiry into the matter and the aforesaid dispute came to be resolved by the parties amicably, where, the settlement agreement came to be executed between the parties on 28.09.2016. A copy of the said agreement is produced on record. Pursuant to such settlement, opponent No.2 issued two cheques to the appellant for an amount of Rs. 21.51/- lakh and Rs. 20/- lakh. When those cheques were deposited by the appellant in his account with Central Bank of India on 27.12.2016, they were dishonoured on 28.12.2016. The appellant was given the intimation about return of those cheques by a memorandum dated 29.12.2016.

2.2 A demand notice, therefore, came to be issued by the appellant through his advocate on 06.01.2017 and the same was served on opponent No.2 on 09.01.2017. However, neither any reply was given to the same nor the outstanding amount was paid by opponent No.2. Therefore, a criminal case being Criminal Case No. 34 of 2017 came to be lodged by the appellant with the trial Court on 01.03.2017 under the provisions of Section 138 of the NI Act against opponent No.2.

2.3 Upon the summons issued by the trial Court, opponent No.2 appeared through his learned Advocate. After hearing both the sides, the trial Court vide judgment and order dated 21.12.2017 acquitted opponent No.2, and therefore, the present appeal.

3. This Court has heard the learned Advocate, Mr. Mehta, for the appellant, who has urged that when the cheques have been dishonoured, the presumptions available under Sections 118 and 139 of the NI Act ought to have been drawn in favour of the appellant by the trial Court. Unless rebutted, legal presumptions ought to have been drawn in favour of the appellant. The Court, unfortunately, had not taken into account the settled legal position and instead appreciated the evidence erroneously and illegally. He, further, has urged that it is not in dispute that both the cheques had been dishonoured and the memorandum to that effect had been received from the bank concerned.

4. Per contra, learned Advocate, Ms. Shukla, appearing for and on behalf of opponent No.2 urged that unregistered agreement with respect to the sell of the vehicles in question was for the consideration of Rs. 60.51/- lakh. On 28.12.2015, opponent No.2 had already paid the earnest money of Rs. 10.50/- lakh. It is not in dispute that when five different cheuqes were issued by opponent No.2 and it was agreed that on the due date the appellant would be at liberty either to encash those cheques or to return the same to opponent No.2 and opponent No. 2 would pay the concerned installment in cash. He paid the first installment on 01.02.2016 and the appellant had retu