JUDGMENT 1. Heard Mr. Bras De Sa, learned Counsel appearing on behalf of the petitioners and Mr. Nandkishore Dubey, learned Counsel appearing on behalf of respondent no.1. 2. Rule. Rule is made returnable forthwith. By consent, heard forthwith. 3. The petitioners, by this Revision Application, have challenged the judgment and order dated 21/12/2013 passed by the learned Additional Sessions Judge, FTC-II, South Goa at Margao ('Appellate Court') in Criminal Appeal No. 68/2012. By the said judgment dated 21/12/2013 passed in the said Criminal Appeal, the judgment and order dated 12/06/2012 passed by the learned Judicial Magistrate, First Class, Vasco-da-Gama ('Trial Magistrate') in Criminal case No. 80/OA/NIA/2010/A was maintained. 4. The petitioners were the accused nos. 1 and 2 respectively, whereas respondent no.1 was the complainant in the said Criminal Case. Parties shall, hereinafter, be referred to as per their status in the said Criminal Case No. 80/OA/NIA/2010/A. 5. Facts giving rise to the Revision Application, in short, are as follows: The complainant had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 ('N. I. Act' for short). The complainant carries on business of purchasing, handling, transportation and shipment of iron ore and other minerals. It was alleged that the accused no. 2 is the proprietor of the accused no.1 and had approached the complainant for supply of iron ore fines having grade FE 58/58% and a contract was executed on 01/02/2009 for supply of 40,000 MT at the rate as per the terms as stipulated in the said contract. The complainant alleged that upon signing the said contract, the complainant paid an advance of Rs. 60,00,000/- to the accused. According to the complainant, the material supplied by the accused was not of the grade as specified in the contract and hence, the same was rejected by the complainant vide letter dated 23/07/2009 and the accused was requested to refund the entire amount that was advanced. The complainant further alleged that in the discharge of liability of returning the advance, the accused issued, in favour of the complainant, four cheques bearing No.138937, dated 25/06/2010; 138938 dated 10/07/2010; 138939 dated 25/07/2010; and 138940 dated 10/08/2010 for a sum of Rs. 10,00,000/- each, all drawn on the Corporation Bank, Bicholim Branch. The said cheques, when presented to the banker of the complainant, were returned unpaid for 'insufficient funds'. 10,00,000/- each, all drawn on the Corporation Bank, Bicholim Branch. The said cheques, when presented to the banker of the complainant, were returned unpaid for 'insufficient funds'. On 21/08/2010, a statutory notice of demand was issued by the complainant demanding the amount of Rs. 40,00,000/- which was duly received by the accused on 27/08/2010, but the accused failed to comply with the requirement of the said notice. Hence, the complaint was filed which came to be registered as Criminal Case No. 80/OA/NIA/2010/A. 6. The accused pleaded not guilty to the substance of accusation explained to them and the complainant examined himself as PW1, Advocate Vidya Shet as PW2, one Shri Jatin Uniyal as PW3 and Shri Sanjay Ghasari as PW4. 7. The statement of the accused came to be recorded under Section 313 of Cr.P.C. The accused no. 2 admitted that he is a proprietor of accused no.1. It was the case of the accused persons that the said cheques were not issued by accused no. 2 to the complainant and that the complainant took the cheques from the son of accused no. 2, namely, Girish Dhawaskar by threatening him. It was further alleged by the accused no. 2 that he had filed a complaint against the complainant on 15/07/2009 at Bicholim Police Station alleging that the complainant sent one Pritesh and four unknown persons to the Cashew Factory of the accused at Bicholim on 13/07/2009 in a vehicle bearing No. GA-O4/C-3094 and again, on 15/07/2009 in a vehicle bearing Registration No. GA-01/C-8027 and threatened to kidnap and kill the accused no. 2 and his son Girish Dhawaskar. The accused did not examine any witness. 8. Upon consideration of the entire evidence on record, the learned Trial Magistrate found that the accused no. 2 was the proprietor of accused no. 1 and all the said four cheques were issued by accused no. 2. The Trial Magistrate further found that there was an admission as regards the receipt of Rs. 60,00,000/- by the accused from the complainant and the accused failed to prove that he had supplied the iron ore to the complainant as per the specification in the contract. The Trial Magistrate held that the cheques were issued by the accused towards the discharge of legally enforceable liability and the accused could not produce any material to rebut the presumption arising under Section 139 of the N. I. Act. The Trial Magistrate held that the cheques were issued by the accused towards the discharge of legally enforceable liability and the accused could not produce any material to rebut the presumption arising under Section 139 of the N. I. Act. Hence, the accused came to be convicted of the offence under Section 138 of the N. I. Act and convicted and sentenced to undergo Simple Imprisonment for a period of two years and to pay to the complainant compensation of Rs. 48,00,000/-in terms of Section 357(3) of Cr.P.C., in default, to undergo Simple Imprisonment for a period of 6 months. 9. The accused persons preferred Criminal Appeal No. 68/2012 against the said judgment of the Trial Magistrate. By judgment and order dated 21/12/2013, the appeal came to be dismissed. The said judgment of the Appellate Court is impugned in the present Revision Application. 10. Mr. De Sa, learned Counsel appearing on behalf of the accused submitted that if really, the complainant had paid Rs. 60,00,000/- to the accused, then, the complainant would not have accepted an amount of Rs. 40,00,000/- by way of four cheques. He, therefore, submitted that it cannot be held that the said four cheques were issued towards refund of the advance. He further submitted that in the said contract, there was an arbitration clause, but arbitration proceedings were not taken out. According to the learned Counsel, the defence of the accused that the said cheques were given to the complainant towards security, is probable defence and, therefore, the same ought to have been accepted by the Lower Courts. He therefore urged that the Revision application be allowed. 11. On the other hand, Mr. Dubey, learned Counsel appearing on behalf of complainant submitted that in the said written contract dated 01/02/2009, there was no clause for payment of any amount towards security. He further submitted that the defenses that the cheques were taken from the son of the petitioner no. 2 by means of threats and that they were given towards security, are contrary to one another and self-destructive. He submitted that though there is reference to the police complaint, however, no such police complaint has been produced on record. He further submitted that the accused did not reply to the letter dated 23/07/2009 sent by the complainant to the accused. He, therefore, submitted that there is absolutely no substance in the present Revision Application. 12. He submitted that though there is reference to the police complaint, however, no such police complaint has been produced on record. He further submitted that the accused did not reply to the letter dated 23/07/2009 sent by the complainant to the accused. He, therefore, submitted that there is absolutely no substance in the present Revision Application. 12. I have gone through the paper book which is submitted today by the learned Counsel for the accused, for perusal. I have considered the submissions advanced by the learned Counsel for both the parties. 13. Indisputably, the said four cheques were presented to the banker during their validity period and they were returned unpaid on the ground “Insufficient funds”. Admittedly, statutory notice as required under section 138 of the N.I. Act was given to the accused and since the same was not complied with, the complaint was filed within the prescribed time limit. 14. The only question that arises for determination is whether the accused had issued the said cheques in favour of the complainant in the discharge of legally enforceable debt or liability. 15. The execution of the contract dated 01/02/2009, and the terms thereof are not disputed. It is true that the said contract dated 01/02/2009 has been signed by Girish Shanker Dhawaskar as proprietor of M/s. Kulmaya Minerals and Transport Contractor (accused no. 1). However, there is no dispute that said Girish is the son of accused no. 2 and that accused no. 2 is the proprietor of the said accused no.1. In his statement under Section 313 of Cr.P.C., the accused no. 2 had admitted that he was the proprietor of the accused no.1. In the cause title of the present Revision Application, the petitioner no. 2 (accused no. 2) has been stated to be the proprietor of the petitioner no. 1 (accused no. 1). The contract was admittedly between the complainant and the accused no.1. In such circumstances, the validity of the contract between the accused and the complainant, cannot be disputed. During the course of cross-examination of PW1, a suggestion was put to him by the learned Counsel for the accused that he had obtained blank signed cheques from Girish Dhawaskar by threatening him. The above suggestion itself shows that the said cheques were signed by the accused no. 2. In any case, admittedly, the said cheques were presented by the complainant to its banker. The above suggestion itself shows that the said cheques were signed by the accused no. 2. In any case, admittedly, the said cheques were presented by the complainant to its banker. The said cheques were not returned on the ground that signature does not tally with that of the account holder. They were returned on the ground of 'insufficient funds'. The complainant had given a statutory notice to the accused no. 2 as proprietor of the accused no.1 which notice is dated 21/08/2010. The accused no. 2 replied to the said notice through Advocate by reply dated 06/09/2010. In this reply, it is specifically stated that the accused no. 2 had issued the said four cheques essentially as security towards supply of iron ore in question as per the contract dated 01/02/2009. In the circumstances above, it is duly proved that the said four cheques were issued by the accused no. 2, in favour of the complainant. 16. Though it is the case of the accused persons that the complainant threatened Girish Dhawaskar and took the said cheques from him, however, such case has been put to PW1 for the first time in the evidence. No such fact was stated in the reply to the statutory notice. In the said reply, it was alleged that the accused had issued those cheques but as security towards the supply of iron ore in question as per the contract dated 1st February, 2009. Though a suggestion was put to PW1 that a police complaint was filed against PW1 at Bicholim Police Station on 15/07/2009, however, no copy of such police complaint was produced on record. Therefore, the defence taken by the accused in the reply to the statutory notice to the effect that the said cheques were issued as security towards supply of iron ore as per the contract dated 01/02/2009 and the defence taken during trial to the effect that the said cheques were taken from Girish Dhawaskar by threatening him are contrary defenses and, therefore, none of them can be believed. Such defenses are not sufficient for rebutting the presumption arising out of Section 139 of the N. I. Act. 17. Admittedly, the complainant had written a letter dated 23/07/2009 to the accused no. 2 by which, the complainant informed the accused no. Such defenses are not sufficient for rebutting the presumption arising out of Section 139 of the N. I. Act. 17. Admittedly, the complainant had written a letter dated 23/07/2009 to the accused no. 2 by which, the complainant informed the accused no. 2 that the cargo supplied by him, was not as per the required specifications and, therefore, the same was rejected and transferred back to the yard of the accused. In the said letter dated 23/07/2009 which is at exhibit 38, the accused no. 2 was requested to refund the entire amount of Rs. 60,00,000/- and to treat the contract as cancelled. Receipt of this letter had been admitted by the accused no. 2 and this was evident from the reply dated 06/09/2010 given by the accused to the statutory notice of the complainant. In this reply, it was stated that the accused no. 2 ignored the said letter since the accused no. 2 had supplied the iron ore as per the specifications and, therefore, the question of refunding the amount, did not arise. The fact that the material was rejected and transferred back to the yard of the accused was not denied. 18. But then the fact remains that the accused actually issued the said four cheques after the receipt of the said letter dated 23/07/2009. The accused could not prove that blank signed cheques were forcibly taken away by the complainant from the son of the accused no. 2. In the circumstances above, the legally enforceable debt or liability of the amount of the cheque was duly proved. As has been rightly held by the learned Appellate Court, there appears no reason for the accused to issue four cheques in question towards any security to the complainant, since the accused was seller and the complainant was the buyer of the iron ore to be supplied by the accused. There was no clause in the contract dated 01/02/2009 for giving any security by the accused to the complainant. No dispute arising out of or in connection with the said contract had arisen, for resolution through arbitration. 19. In all the circumstances above, the impugned judgment and order is in accordance with the settled principles of law and no interference with the same is called for. 20. In view of the above, the Revision Application stands dismissed. Rule is discharged. Revision Application stands dismissed.