1 APPLN-4149.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.4149 OF 2010 M/s. Bravo Builders Pvt. Ltd. .... Applicant Vs. Ranjit Singh Saini & Anr. .... Respondents Shri Pratapsinh Ranaware for the Applicant. S/Shri Ganesh Ahuja with Naveen Ahuja and Sahil Mullick i/b Gobindram D. Talreja & Associates for Respondent No.1. Ms V.R. Bhosale, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: JUNE 24, 2011 P.C: 1. This is an application for leave to file appeal against the acquittal of the respondent ordered by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai for the offence punishable under Section 138 of the Negotiable Instruments Act. The respondent is supposed to have issued a cheque for Rs.2,75,00,000/- on 23-12-2006. This was pursuant to an agreement, copy whereof is 2 APPLN-4149.10 placed at Exhibit-A in the present application. This agreement shows that the respondent was a facilitator who was supposed to acquire lands for the applicant abutting National Highway No.6 passing through the State of Jharkhand. These acquisitions were to be made by 31-10-2006. For this purpose, the purchaser had paid a sum of Rs.20,00,000/- towards earnest money which has been refunded by the respondent separately and about which there is no grievance. The grievance is about the sum of Rs.2,75,00,000/- which the facilitator was supposed to refund to the purchaser, should the acquisition not be completed before 31-10-2006 or should the purchaser find any defect or find the project uneconomical. The relevant term of the agreement reads as under: 4.4 The Facilitator has agreed that all the related authentic documents of revenue records of the subject land will be furnished to the satisfaction of the Purchasers before payment of any further instalment of money as set out in clause 2.5 of this agreement and facilitator will cooperate in carrying out a legal and commercial due diligence by purchasers in next 30 days and in case if purchasers finds and defects or project uneconomical, the facilitator will pay back the deposit of Rs.20 lacs and damages of Rupees 3 APPLN-4149.10 two crores and fifty lakhs only within a period of 90 days from the date of term sheet hereof. Apart from this, Clause 6 of the agreement entitled the purchaser to receive compensation which has not been quantified. The learned Magistrate amongst other things held that the cheque in question could not be said to have been issued against an existing legally enforceable liability since it was for a sum of Rs.2,75,00,000/- against the liability of only Rs.2,50,00,000/- as per Clause 4.4 of the agreement and since the damages referred to in Clause 6 had not been quantified. The learned counsel for the applicant relied on two judgments to support his contention that cheque need not be exactly of the amount which represents the liability of the respondent. In P.V. Kochayippa v. P.N. Suprasidhan, Rajani Bhawan and Anr., reported in 2002 Cri.L.J. Page 4803, the Kerala High Court held that cheque for Rs.1,00,000/- against an advance of Rs.80,000/- made to the accused on 15-1-1995 could be said to be for legally enforceable liability. The Court held on the facts of the case that the difference in the amount does not appear to be significant. The reason was that the date of the transaction was 15-1-1995 and 4 APPLN-4149.10 the date of the cheque was 15-1-1997. Therefore, the Court found that Rs.20,000/- forming part of the cheque would represent the amount of interest on the principal sum. In the present case, the date of termination of the contract and the date of the alleged cheque are not so far apart as to justify a sum of Rs.25,00,000/- being added without any computation or justification as interest or compensation. The learned counsel for the applicant submitted that the contract was mutually terminated and the sum of Rs.25,00,000/- was mutually agreed to be the compensation. In that case there had to be some writing to that effect. In the absence of any writing, the compensation would have to be decided by the competent Court and it could not be a matter of speculation. 2. The learned counsel next relied on a judgment of this Court in Vasco Urban Co-op. Credit Society Ltd. v. Mrs. Shobha D. Korgaonkar, reported in 2005 Cri.L.J. Page 2465 where the Court had held that the liability was Rs.1,92,350/- against which a cheque for Rs.90,000/- was issued. This was obviously to cover the liability. From these two judgments the learned counsel seeks to deduce the ratio 5 APPLN-4149.10 that the amount of cheque need not have any relation with the liability which may be either more or less than the amount of the cheque. No such ratio could be deducted from both these judgments. In the first case, the Kerala High Court found that the liability did correspond to the amount of the cheque and in the second case the liability was decidedly more than the amount of the cheque. In view of this, it cannot be held that the learned Magistrate erred in concluding that the cheque which was dishonoured did not represent the existing legally enforceable liability of the respondent. The possibility that the cheque was issued by way of security could not have been ruled out, though the learned counsel for the applicant submitted that it is possible that a mischievous party may issue a cheque from an earlier cheque book just to show that it was issued by way of security. A complainant should remember that probabilities are good defence for the accused but for the complainant who seeks prosecution and conviction of the accused, probabilities would not be sufficient unless the complainant proves the case to the hilt even in cases under Section 138 of the Negotiable Instruments Act. In view of this, no fault can be found with the judgment of the 6 APPLN-4149.10 learned Magistrate. Leave refused. Appeal dismissed. (R.C. CHAVAN, J.)