IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 153 OF 2011 IN STAMP NUMBER MAIN NO. 1327 OF 2011 MR. SUNIL THUKRAL., ... Applicant Versus MR. AURITA FRANCISCO MENDES @ HONRATO AURITO MENDES AND ANR., ... Respondents Mr. Ryan Menezes, Advocate for the Applicant. Mr. P. Karpe, 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 ORAL ORDER Heard Shri Menezes, learned Counsel appearing for the Applicant, Mr. P. Karpe, learned Counsel appearing for the Respondent no.1 and Shri C. A. Ferreira, learned Public Prosecutor appearing for the Respondent no.2. 2. The above application is for Special Leave to Appeal against the Judgment passed by the learned J.M.F.C., Panaji, whereby the Respondent no.1 has been acquitted of the charges framed against him for having committed offences punishable under Section 138 of the Negotiable Instruments Act. 3. I have carefully considered the submissions of the learned Counsel as well as the Judgment passed by the learned J.M.F.C., Panaji. The learned Judge whilst passing the impugned Judgment, has come to the conclusions that the Applicants have failed to discharge the burden to establish that the cheque was issued to recover a legally recoverable debt. 4. On perusal of the evidence adduced by the Applicant before the learned Magistrate, I find that the cheque dated 26.03.2009 for a sum of Rs.50,000/- was issued by the Respondent no.1 but, however,on the date on which the cheque was issued, there was no amount payable by the Respondent no.1 to that effect. This itself suggests that said cheque was merely a security for any amount which would be payable by the Respondent no.1 to the Applicant. Admittedly, the amount payable by Respondent no.1 was not adjudicated or determined before the said cheque was issued and, as such, I find that the learned Magistrate was justified to come to the conclusion that the Applicant has failed to establish that there was a legally recoverable debt. The records further reveal that an Agreement was entered into between the Applicant and the Respondent no.1 and in terms thereof, in case of failure on the part of the Respondent no.1 to vacate the flat, he was liable to pay liquidated damages of Rs.2,000/- per day to the Applicant. As a security deposit and in terms of the said Agreement, the said cheque came to be issued to the Respondent No.1. The records clearly disclose that the cheque was issued towards a refundable security deposit and the Applicant was at liberty to adjust the said amount on account of any failure in payment of the compensation. The learned Judge has rightly doubted whether the reply at exhibit 19 was at all sent by the Respondent no.1. The learned Judge has also rightly on the basis of the material on record come to the conclusion that the amount mentioned in the said cheque could not be appropriated towards liquidated damages as contemplated in the Agreement as only a sum of Rs.30,000/- was allegedly due on account of the unpaid licence fee. Considering all these disputed facts which are evident from the records, the learned Magistrate was justified to come to the conclusion that the Applicant has failed to establish that the cheque was issued to recover a legally enforceable debt. 4. The learned Counsel appearing for the Applicant was unable to point out any error committed by the learned Judge whilst passing the impugned Judgment. Considering the contentions raised by the parties, it appears that the dispute is of a civil nature and, as such, the question of seeking to initiate proceedings under Section 138 of the Negotiable Instruments Act, would not arise. 5. Hence, I find that no case is made out to grant any Special Leave to Appeal against the Judgment passed by the learned Magistrate acquitting the Respondent no.1. As such, the above application stands dismissed. F. M. REIS, J. arp/*