1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2019 OF 2008 IN CRIMINAL APPEAL No. of 2009 Phulchand Exports Ltd .. Applicant. vs. Mr Badrinath Laddha and Anr ..Respondents. Mr Shrish Gupte Sr Advocate i/b J.B. Mishra Advocate for the applicant/appellant. Mr Umesh Mankapure, Advocate for Respondent No.1. Mr P.A.Pol, A.P.P. ,for the State. CORAM: : A.R. JOSHI,J. DATE : 7th July, 2009. P.C.:- 1. Heard rival submissions at length. It is the application for leave to file appeal against the order of acquittal of the accused- respondent No. 1 arising out of the proceeding under section 138 of the Negotiable Instruments Act, 1881( the N.I. Act for short). The dishonoured cheque is of Rs.51,25,000/-. 2. Perused the documents annexed to the appeal memo. It appears that there was some written contract between the 2 complainant and the accused for supply of certain quantity of iron ore at certain stipulated price. As per one of the terms of the said agreement an amount of Rs.51,25,000/-was paid in advance by the complainant towards future supply of iron ore by the accused. There appears to be two addenda to the said agreement. In the original agreement itself as per clause No.7 it is mentioned that as and by way of security, the accused to give a cheque for Rs.51,25,000/-, which is the amount equivalent to the advance received by the accused, from the complainant. In the last addendum it is specifically mentioned that the said amount lying with the complainant and which is then termed as the guarantee, was to be handed over to the accused on settlement of the accounts and details of such accounts are in the said third addendum. It must be mentioned that said balance amount was admitted by the accused thereby acknowledging his indebtedness to pay to the complainant total amount of Rs. 55,40,670/- and it was the amount coming out of the adjustment of the material supplied. As there was no such payment forthcoming from the accused, the earlier cheque given for Rs. 51,25,000/- which was termed as security payment and subsequently termed as guarantee cheque, was deposited by the complainant in his account towards the realization of the said outstanding dues. This is the 3 cheque which was dishonoured, consequently leading to the filing of the complaint under Section 138 of the N.I.Act. 3. It appears that the learned trial Magistrate was influenced by the defence of the accused that the said cheque was initially given as security and that there was no any legally enforceable liability on the said cheque. While accepting such submission, the learned trial Magistrate had ignored the admission of the accused that he was liable to pay to the complainant the total amount of Rs.55,45,670/- and in satisfaction of such amount the complainant deposited the said cheque of Rs.51,25,000/- and which was dishonoured. 4. After hearing the rival submissions and considering the substantive evidence, in the opinion of this Court, there is a triable issue in appeal before this Court in order to check the correctness and legality of the order of the Trial Court. In the result, present leave petition is allowed. Appeal is admitted. Call for R and P. (A.R.JOSHI,J)