IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 152 OF 2011 IN STAMP NUMBER MAIN NO. 1016 OF 2011 MR. SUNIL THUKRAL ... Applicant Versus MR. TOLU @ TULO PUNO VELIP AND ANR., ... Respondents Mr. Ryan Menezes, Advocate for the Applicant. Mr. P. A. Kamat, Advocate for the Respondent no.1. Mr. C. A. Ferreira, Public Prosecutor for the Respondent no.2. Coram:- F. M. REIS, J. Date:- 30th November, 2011 P.C. Heard Shri Ryan Menezes, learned Counsel appearing for the Applicant, Shri Kamat,learned Counsel appearing for the Respondent no.1 and Shri Ferreira, learned Public Prosecutor for the Respondent no.2. 2. The above application is seeking for Special Leave to Appeal against the Judgment passed by the learned J.M.F.C., Panaji, dated 19.01.2011, whereby the Respondent no.1 has been acquitted from the charges levelled against him for having committed offence under Section 138 of the Negotiable Instruments Act. The learned Magistrate whilst passing the impugned Judgment, has come to the conclusion that the Applicant has failed to establish that there was a legally enforceable debt to be recovered from the Respondent no.1 on which count the cheque which came to be dishonoured was issued. 3. Shri Menezes, learned Counsel appearing for the Applicant has pointed out that there was an Agreement executed between the parties which is at exhibit 31 which clearly stipulates that a sum of Rs.5,00,000/- was paid to the Applicant by a cheque bearing no. 583394 drawn from the State Bank of India, Canacona Branch, dated 26.08.2008. The records further reveal that the dishonoured cheque is the same as mentioned in the said Agreement. Apart from that, the learned Magistrate whilst passing the impugned Judgment, has failed to draw the presumptions available to the Applicant under the provisions of the Negotiable Instruments Act as the execution of the cheque was not disputed by the respondent. Considering the impugned Judgment of the learned Magistrate, I find that, prima facie, the learned Magistrate has not appreciated the evidence on record in accordance with the well settled principles of law. There are no cogent reasons given by the learned Magistrate how the presumption has been rebutted. The findings arrived at herein above are merely prima facie findings only to consider whether leave is to be granted to the Applicant. 4. In the facts and circumstances of the case, I find that the Applicant has made out a case to grant Special Leave to Appeal against the acquittal of Respondent no.1 by the learned J.M.F.C., Panaji. 5. 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 passed by the J.M.F.C., Panaji, dated 19.01.2011, is granted. (iii) Application stands disposed of. F. M. REIS, J. arp/*