IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 258 OF 2010 IN STAMP NUMBER MAIN NO. 2530 OF 2010 MR. SANTOSH LAXIMAN FADTE ... Applicant Versus MR. NITISH SURYAKANT KAVLEKAR AND ANR., ... Respondents Mr. Nitin Sardessai, Advocate for the applicant. Mr. V. A. Lawande, Advocate for respondent no.1. Coram:- F. M. REIS, J. Date:- 23rd November, 2011 P.C. Heard Shri N. Sardessai, learned Counsel appearing for the applicant and Shri V. A. Lawande, learned Counsel appearing for respondent no.1. 2. This is an application seeking for special leave to appeal against the judgment dated 03.07.2010 passed by the learned J.M.F.C., Mapusa, whereby the respondent no.1 has been acquitted of an offence punishable under Section 138 of the Negotiable Instruments Act. 3. Shri N. Sardessai, learned Counsel appearing for the applicant has pointed out that the learned Magistrate whilst passing the impugned judgment has erroneously come to the conclusion that the cheque has been issued as security for the payment of Rs.10,00,000/-. The learned Counsel has taken me through the impugned judgment and pointed out that the learned Magistrate has wrongly accepted the theory of the respondent no.1 to the effect that the respondent no.1 was not liable to pay the amount and that the respondent no.1 did not owe any amount to the applicant. The learned Counsel further pointed out that the learned Magistrate has not at all considered the fact that the statutory notice which has been issued to the respondent no.1 was not replied by the respondent no.1. Apart from that, the learned Counsel has pointed out that merely because the cheque amount was for Rs.11,00,000/- and the amount received by the respondent no.1 was Rs.10,00,000/- by itself does not preclude the applicant to recover the amount as mentioned in the cheque. 4. On the other hand, Shri V. A. Lawande, learned Counsel appearing for the respondent no.1 has pointed out that the learned Magistrate has rightly considered the evidence on record and has come to the conclusion that the cheuqe was issued as a security. The learned Counsel further pointed out that though a sum of Rs.10,00,000/- was received nevertheless it was clearly brought to the notice of the applicant that the respondent no.1 would not be in a position to execute the sale deed. The learned Counsel further pointed out that the learned Magistrate has minutely appreciated the evidence and has come to the correct conclusion after considering the statement of the respondent no.1 under Section 313 of the Criminal Procedure Code that the cheque was not issued to recover any legally enforceable debt and as such submits that the above application deserves to be rejected. 5. Having heard the learned counsel and on perusal of the records and the findings of the learned Magistrate, I find prima facie that the learned Magistrate has erroneously come to the conclusion that the cheque was issued as a security for the amount. It is not disputed that a sum of Rs.10,00,000/- was received from the applicant. Apart from that, the record reveals that the notice was not replied by the respondent no.1 and as such prima facie the findings arrived at by the learned Magistrate appears to be not in accordance with the material on record. As such, without going deeply into the merits of the matter, I find that a case is made out by the applicant for granting special leave to appeal against the judgment of the learned Magistrate dated 03.07.2010. 6. It is clarified that the findings arrived at are only prima facie findings and shall not affect the rival contentions on merits. 7. In view of the above, I pass the following : O R D E R (i) The application is allowed. (ii) Special leave to appeal against the judgment dated 03.07.2010 passed by the learned J.M.F.C., Mapusa, is granted. (iii) The respondent no.1 shall comply with the provisions of Section 390 of Criminal Procedure Code before the learned J.M.F.C., Mapusa, on same terms and conditions upon which the respondent no.1 was released on bail during the pendency of the trial.The respondent no.1 shall remain present at the time of the final hearing of the appeal. 8. The Criminal Misc. Application stands disposed of accordingly. F. M. REIS, J. at*