Oral Judgement :

1. Challenge in this appeal is to judgement of acquittal rendered by learned Judicial Magistrate (F.C.), in Summary Criminal Case No. 1525/1997 whereby and whereunder respondent No. 1 – Jiyalal came to be acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881.

2. There is no dispute about the fact that the appellant and the respondent No. 1 were acquainted with each other. So also, there is no dispute about the fact that the respondent No. 1 issued a cheque No. C532820 dated 16-01-1996 for Rs. 20,000/- drawn on the United Western Bank Limited, Aurangabad, in favour of the appellant/complainant. The cheque in question (Exh-26) was presented by the appellant to his Bank, namely, the Indian Overseas Bank, Aurangabad branch. The cheque was returned to him on 28-02-1996 with an endorsement "funds not arranged for". The cheque had bounced and as such, a demand notice was issued to the respondent No. 1 on 06-03-1996 by the appellant through his advocate. The demand notice was duly served on him. The respondent No. 1 gave reply dated 30th March, 1996 whereby he denied the existence of liability to pay the amount shown in the cheque. The appellant thereafter filed the private complaint case for offence punishable under section 138 of the Negotiable Instruments Act against the respondent No.1.

3. At the trial, the appellant examined himself in support of his case. The respondent No. 1 examined himself and DW Sanjay in order to buttress his defence. It was the defence of the respondent No. 1 that he had agreed to purchase eight (8) plots from the appellant of 25 feet x 30 feet each at rate of Rs. 10,000/- for each of them. He had paid advance amount of Rs. 6000/- in cash when the agreement of sale was orally settled. He issued the cheque in question (Exh-26) towards further payment of earnest amount in pursuance to the agreement of sale. He lateron came to know that the appellant was not owner of those plots and the two (2) plots which were owned by him were already sold in favour of one Shri Tufane. It was due to frustration of the oral agreement of sale that he did not arrange for payment of the amount shown under the cheque.

4. The learned Judicial Magistrate came to conclusion that there was transaction in respect of plots between the parties. The learned Judicial Magistrate did not believe version of the appellant in respect of hand-loan of Rs. 20,000/- given to the respondent No. 1. The learned Judicial Magistrate held that tape recording of the conversation between the parties duly corroborated the defence and version of DW Sanjay, in this behalf, could not be discarded. Hence, it was held that the appellant failed to prove existence of legal liability for payment of Rs. 20,000/-. Consequently, the respondent No. 1 came to be acquitted of the charge. Though served, none appeared for the respondent No. 1 (accused) in this Court.

5. Heard learned advocate Mr. P.M. Yelnoorkar for the appellant and learned A.P.P. Mr. V.H. Dighe for the respondent No.2/State.

6. Before I proceed to embark upon scrutiny of the evidence tendered by the parties, let it be noted that there is no documentary evidence to show that the respondent No. 1 - Jiyalal had entered into an agreement of sale in respect of specific plots owned by the appellant. Nor there is any iota of evidence on record to show that the appellant owned open plots, which were available for sale at the material time. It is further not explicit as to what was the description of the so called plots which were subject of the alleged agreement of sale. It is vaguely stated by the respondent No. 1 that the plots were situated in Jaibhavaninagar locality. No extract of of municipal register or 7/12 record was produced about ownership of the so called plots.

7. The testimony of PW1 Lalji (appellant) purports to show that the respondent No. 1 expressed need of money and, therefore, Rs. 20,000/- was given by him on obtaining the chequ