1 Farad Continuation Sheet No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR. CRIMINAL APPEAL NO.280/2008 (Sau. Sadhana w/o Pramod Rakshamwar .vrs. Sau. Purnima w/o Kishore Pendake and one) ________________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ Mr. N.R. Saboo, Advocate for the appellant. ........... Coram : R.C. Chavan, J. Dated : 17th January, 2009. Heard the learned counsel for the appellant. This appeal is directed against the judgment of acquittal rendered by the learned Judicial Magistrate, First Class, Nagpur whereby the learned Magistrate acquitted the respondent/accused on the complaint of the applicant. 2 The learned counsel for the respondent/original accused was not available though served. In this case the grievance was in respect of Cheque bearing No.314999 for Rs.3,00,000/- which was dishonoured. The accused did not dispute that the cheque was, in fact, dishonoured and that he did not pay the amount of cheque even after receipt of notice. The question is whether the cheque was in respect of legally enforceable liability. The learned counsel for the applicant placed reliance on three judgments i.e. (i) Mallavarapu Kasivisweswara Rao .vrs. Thadikonda Ramulu Firm and others, 2008(8) Scale, 680, (ii) M.S. Narayana Menon alias Mani .vrs. State of Kerala and another, 2006(5) Mh.L.J. 676 and (iii) S.T.P. Limited, Bangalore .vrs. Usha Paints & Decorators, Bangalore and another, 2007(6) CRJ 393. There can be no doubt that a cheque is presumed to have been issued for valuable consideration. In addition, the learned Magistrate is obliged by Section 139 of the Negotiable 3 Instruments Act to presume unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Since Section 138 of the Negotiable Instruments Act makes dishonour of cheque punishable only if the cheque was issued discharge, in whole or in part, of any debt or other liability, the question is whether this presumption stood rebutted in view of an agreement Exh.25 which was tendered in evidence by the complainant. Clause 6 of the said agreement shows that Sou. Pournima Pendke i.e. the accused would give cheque no.314999 due after the period of service charges for a sum of Rs.3,00,000/- as a security. The Marathi agreement actually uses the words “as a security” written in Devnagri Script. In view of this, intention or purpose in issuing cheque is not left in doubt. The cheque in question was issued by way of security and not for discharge of a debt or legally enforceable liability. 4 The High Court of Karnataka had held that even if the cheque is issued as security for repayment it is very much a Negotiable Instrument with implied instruction for deferred presentation on future date. This is not the question in case at hand. The question is whether the cheque was issued towards the repayment of a debt or other liability. In this case cheque was not issued towards the repayment of a debt. The question as to whether the accused was liable to pay certain amount to the complainant would be required to be decided after considering the breaches of agreement alleged by the complainant, which would be subject matter for decision by a Civil Court. In view of this, the findings recorded by the learned Magistrate cannot be faulted. The appeal is, therefore, dismissed. JUDGE Gulande