JUDGMENT 1. Heard Mr. Naik, learned Counsel appearing on behalf of the appellant and Mr. Mulgaonkar, learned Counsel appearing on behalf of the respondent no. 1. 2. This appeal is directed against the judgment and order dated 06/12/2011, passed by the learned Judicial Magistrate First Class, Mapusa (Trial magistrate), in Criminal Case No. 858/2010/NIA/B, whereby the accused came to be acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act', for short). 3. The appellant is the complainant whereas the respondent no.1 is the accused in the said criminal case. Parties shall, hereinafter, be referred to as per their status in the said criminal case. 4. It was the case of the complainant that with a view to purchase a property admeasuring 8375 square metres, situated at village Aldona, at the rate of Rs. 400/- per square metre, from the accused, he had paid an amount of Rs. 10,00,000/- to her as advance payment and a Memorandum of Understanding dated 19/03/2010 was executed. The complainant alleged that he had agreed to purchase the said property of the accused under the condition that the title of the property should be cleared by the accused within five months and in case the accused failed to do so, she shall be liable to pay double the amount of the said advance paid by him to the accused. The accused failed to clear the title within five months, due to which the complainant asked for refund of the said amount. In discharge of the obligation, the respondent no. 1 issued cheque no. 748172 dated 24/05/2010 drawn on Syndicate Bank, Mapusa Branch for Rs. 2,00,000/- in favour of the complainant. The said cheque when deposited for collection, was returned unpaid for insufficient funds in the account of the accused. The complainant sent a legal notice dated 04/09/2010 to the accused to which the accused sent a handwritten reply. Since, the accused did not comply with the requirements of the legal notice, the complaint was filed. 5. The complainant examined himself as PW1. He produced the documents namely the cheque, cheque return memos, Memorandum of Understanding, legal notice sent to the accused along with A/D card and the handwritten reply of the accused. The statement of the accused came to be recorded under Section 313 of Cr. P.C. 6. 5. The complainant examined himself as PW1. He produced the documents namely the cheque, cheque return memos, Memorandum of Understanding, legal notice sent to the accused along with A/D card and the handwritten reply of the accused. The statement of the accused came to be recorded under Section 313 of Cr. P.C. 6. It was the case of the accused that she had issued two cheques on 03/04/2010 one for Rs. 9,00,000/-which was encashed by the complainant, the other for Rs. 50,000/- and that thereafter, the complainant made her to write cheque of Rs. 2,00,000/- under threats. The accused did not wish to examine any witness in her defence. 7. Upon consideration of the entire evidence on record, the learned Trial Magistrate held that the complainant failed to prove the existence of legal debt in the amount of Rs. 2,00,000/- as on the date of issuance of disputed cheque. The accused, therefore, came to be acquitted. Hence, this appeal. 8. Mr. Naik, learned Counsel appearing on behalf of the complainant submitted that as per the Memorandum of Understanding, it was clearly agreed between the parties that if the accused failed to make out a clear title in respect of the said property then she will be liable to pay double the amount which she received from the purchaser at the time of signing Memorandum of Understanding. He submitted that there is no dispute that the accused had received from the complainant a sum of Rs. 10,00,000/-. He further submitted that from the evidence on record it is clear that the accused had paid only the sum of Rs. 9,50,000/- since the agreement could not be enforced and that towards the balance amount of Rs. 50,000/- and interest thereon, the cheque for Rs. 2,00,000/- was issued. He submitted that since the execution of the cheque is admitted, the presumption under Section 139 of the Act would come into play and it was for the accused to prove that there was no illegally enforceable debt or liability. He submitted that by legal notice served upon the accused, the complainant had made a demand of Rs. 2,00,000/- which is the cheque amount. He further pointed out that in the handwritten reply, though the accused stated many things about the amount owed, however, the main thing is that she admitted of having issued a cheque of Rs. 2,00,000/- towards the principle amount of Rs. 2,00,000/- which is the cheque amount. He further pointed out that in the handwritten reply, though the accused stated many things about the amount owed, however, the main thing is that she admitted of having issued a cheque of Rs. 2,00,000/- towards the principle amount of Rs. 50,000/- and interest. He therefore submitted that the complainant had proved the case beyond reasonable doubt and, therefore, the Trial Magistrate ought to have convicted the accused for the offence under Section 138 of the Act. He, therefore, urged that the appeal be allowed and accused be convicted and adequately sentenced. 9. On the other hand, Mr. Mulgaonkar, learned Counsel appearing on behalf of the accused submitted that admittedly, there is a false statement made in the said so called Memorandum of Understanding to the effect that the purchaser is in possession of the said property for more than last 10 years and has been looking after the fruit bearing trees existing therein. He pointed out that in the cross-examination of PW1 he has admitted that the said recital in the Memorandum of Understanding is not correct. He further submitted that the said Memorandum of Understanding has not been registered and the attesting witnesses named therein have not been examined to prove the said agreement. He further pointed out from the cross-examination of PW1 that according to PW1 the stamp duty to be paid was Rs. 33,500/-. The learned Counsel submitted that the said agreement has been executed on a stamp paper of Rs. 100/- only. He, therefore, urged that the said agreement, in which it is stated that if the vendor fails to make the title clear, she will be liable to pay double the amount which she received from the purchaser, is not legal and enforceable. The learned Counsel appearing on behalf of the accused further submitted that neither in the complaint nor in the legal notice and also nowhere in the affidavit-in-evidence, the complainant stated that an amount of Rs. 9,50,000/- was already paid by the accused and the balance was only Rs. 50,000/- and that the cheque of Rs. 2,00,000/- was towards the principle amount of Rs. 50,000/- and interest. He submitted that PW1 could not tell the rate of interest that was agreed upon. He therefore submitted that the complainant could not prove that the debt was Rs. 2,00,000/-. He further submitted that the debt was only Rs. 50,000/- and that the cheque of Rs. 2,00,000/- was towards the principle amount of Rs. 50,000/- and interest. He submitted that PW1 could not tell the rate of interest that was agreed upon. He therefore submitted that the complainant could not prove that the debt was Rs. 2,00,000/-. He further submitted that the debt was only Rs. 50,000/- and since the cheque amount is more than that, the complaint has been rightly dismissed and no interference is called for with the impugned judgment and order. 10. I have gone through the entire material on record and I have considered the arguments advanced by the learned Counsel for both the parties. 11. Almost the same facts, as stated in the complaint and which have been narrated in paragraph 4 above, have been mentioned in the said legal notice dated 04/09/2010 issued by the complainant to the accused and the same facts have been reiterated in the affidavit-in-evidence filed by the complainant. What is pertinent to note that in the complaint, legal notice and the affidavit-in-evidence, it is nowhere mentioned that the accused had already paid the amount of Rs. 9,50,000/- to the complainant and therefore the balance amount was only Rs. 50,000/- and that the said cheque for Rs. 2,00,000/- was issued towards the principle amount of Rs. 50,000/- plus interest. In his cross-examination, PW1 stated that the accused encashed the cheque of Rs. 10,00,000/- on 31/03/2010 and that out of the said amount of Rs. 10,00,000/-, the accused had paid to him the amount of Rs. 9,50,000/- by way of cheque on 03/04/2010 i.e. within three days from the date of encashing the cheque. It is in the cross-examination for the first time that PW1 stated that the accused was due to pay the balance of Rs. 50,000/- and the interest. However, it is pertinent to note that PW1 could not tell the rate of interest which was agreed upon. The said Memorandum of Understanding dated 19/03/2010 does not speak about any payment of interest in the event said Memorandum of Understanding does not work out. The said Memorandum of Understanding speaks about the liability to pay double the amount which the accused received from PW1. Payment of interest and payment of double the amount cannot be the same thing. In no circumstances can it be understood as to how the debt or liability would become Rs. The said Memorandum of Understanding speaks about the liability to pay double the amount which the accused received from PW1. Payment of interest and payment of double the amount cannot be the same thing. In no circumstances can it be understood as to how the debt or liability would become Rs. 2,00,000/-, when the balance was only Rs. 50,000/-. 12. As has been rightly submitted by the learned Counsel appearing on behalf of the complainant, admittedly, there is a false statement made in the said Memorandum of Understanding to the effect that the purchaser i.e. the complainant is looking after the said property for more than last 10 years and also looking after fruit bearing trees existing therein. It is also pertinent to note that in his cross-examination, PW 1 has stated that he knows that in an agreement / Memorandum of Understanding stamp duty is required to be paid and that the stamp duty to be paid was Rs. 33,500/-. The said Memorandum of Understanding has been typed on a non-judicial stamp paper of only Rs. 100/-. Admittedly, the said Memorandum of Understanding was not registered. In such circumstances, it was incumbent upon the complainant to have examined attesting witnesses named in the said Memorandum of Understanding. However, none of the two witnesses named therein has been examined by the complainant. In such circumstances, the said Memorandum of Understanding cannot be relied upon. 13. As has been rightly held by the learned Trial Magistrate that though all the pre-conditions required for launching valid prosecution i.e. issuance of cheque in the account maintained by accused, its presentation during the period of validity, its dishonour for insufficient funds in the account of the accused, giving of legal demand notice, receipt of the same by the accused and filing of the complaint within prescribed time, have been fulfilled, however, the main condition of the existence of legally enforceable debt, has not been proved. Though in the handwritten reply given by the accused to the complaint, it is mentioned that she gave two cheques, one for Rs. 9,50,000/- which the complainant cleared on 8/4/2010 and the second for Rs. 2,00,000/- for the amount of Rs. Though in the handwritten reply given by the accused to the complaint, it is mentioned that she gave two cheques, one for Rs. 9,50,000/- which the complainant cleared on 8/4/2010 and the second for Rs. 2,00,000/- for the amount of Rs. 50,000/- which she owed to the complainant plus interest, however, she has further stated therein that subsequently she had phoned the complainant and had told him not to deposit the cheque as she had not sold the property and would inform him as and when she sells the same and the complainant told her to take cheque of Rs. 2,00,000/- and give him one of Rs. 50,000/-. Thus, at the end of the said handwritten letter, the accused has stated that she would pay the remaining Rs. 50,000/- which she owes to the complainant and that she does not have extra cash to pay an exorbitant amounts. Thus, it cannot be said that the accused had admitted debt of Rs. 2,00,000/-. The learned trial Magistrate has rightly held that the complainant failed to prove the existence of legal debt of the sum of Rs. 2,00,000/- as on the date of issuance of disputed cheque. In the case of “Laxmikant D. Naik Karmali V/s Shri Santosh D. Naik & others, [2006(2) Goa L.R. 251] and in the case of “Vividha Urban Co-operative Credit Society Limited,” [2010 (2) Goa L.R. 1], this Court has held that where the subject cheque was issued fro more amount than due to the complainant, the acquittal on that count cannot be faulted. The complainant, even otherwise, as rightly held by the Trial Magistrate, did not approach the Court with clean hands. The accused, in my view, has been rightly acquitted of the offence punishable under section 138 of the Act. No interference is therefore called for with the impugned Judgment and Order. 14. In the result, the appeal is dismissed.