IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION NO. 7 OF 2010 IN STAMP NUMBER MAIN NO. 34 OF 2010 VIVIDHA URBAN CO-OP. CREDIT SOCIETY LIMITED REP. BY SHRI BALWANTRAO J. DESAI ... Applicant Versus MR. DITENDRA KERKAR AND ANR., ... Respondents Mr. A. D. Bhobe, Advocate for the Applicant. Mr. V. A. Lawande, Advocate for Respondent no.1. Mr. C. A. Ferreira, Public Prosecutor for the Respondent no.2/State. Coram:- R. M. SAVANT, J. Date:- 2nd March, 2010 P.C. By the above Criminal Misc. Application, the above Applicant, which is a Co-operative Credit Society Limited, seeks leave to Appeal against the Judgment and Order dated 27.10.2009, passed by the learned J.M.F.C., Ponda, by which, the Respondent-Accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, (Act, for short). The cause for filing of the complaint was the dishonour of cheque bearing no. 077395 dated 10.06.2007 for the amount of Rs.5,77,480/-, drawn on ICICI Bank Ltd., Ponda Branch. The said cheque was dishonoured on account of insufficient funds. After following the gamut of process as contemplated under Section 138 of the Act, a complaint came to be filed by the Applicant above named. 2. It is well settled by a catena of Judgment of the Apex Court that the presumption under Section 139 of the Act is as regards the issuance of a cheque towards the discharge of a debt or liability but the presumption is not as regards the existence of the debt or liability which the Complainant is liable to prove initially. 3. In the instant case, the Complainant, which is a Co-operative Credit Society, has calculated the outstanding amount by charging interest by giving monthly rests instead of quarterly rests which is contemplated in the Agreement between the parties. The said change of rate of interest as well as monthly rests has been done relying upon a Circular dated 28.06.2003. The said Circular makes it ex-facie clear that the same will be only applicable to the new loans released w.e.f. 01.07.2003. In the instant case, the loan was granted to the Respondent-Accused sometime in the year 2001. The Trial Court has, therefore, held that the said Circular, would therefore, not be applicable and in the said circumstances, the Applicant above named could not charge interest at a higher rate, as the same would be in breach of Agreement between the parties. The Trial Court, therefore, recorded a finding that the Complainant has failed to prove the liability of the Accused on the date of the issuance of the cheque. The Trial Court, has therefore, held that the Complainant has failed to prove the offence beyond reasonable doubt and has resultantly recorded a finding that taking into consideration the circumstances, the Accused has probabilised his defence. 4. In my view, considering the Judgment and Order of the Trial Court, no issue of fact or law arises for consideration in the Appeal. The Application is accordingly rejected. 5. In view of the rejection of the above Application, the Stamp Number Main no. 34/2010 does not survive and is disposed of as such. R. M. SAVANT, J. arp/*