1 Heard. Admit. The appeal is taken up for final disposal forthwith, by consent of respective Counsel.

2 By means of this appeal, the appellant/ (original complainant) challenge judgment and order dated 06th April, 2009 passed in Summary Criminal Case No. 6892 /2008 by learned 23rd Judicial Magistrate, First Class, Court No.23, Nagpur (Spl. Court under Section 138 of the Negotiable Instruments Act ) { in short, “the N.I.Act”), whereby respondent no.1 accused was acquitted of the offence punishable under section 138 of the N.I. Act, on the ground that the complainant failed to prove that the cheuqe bearing No.103443 dated 29.02.2008 drawn for the sum of Rs.1,55,000/on the District Central Cooperative Bank Limited, Hudkeshwar Branch, Nagpur was issued for discharge of legally enforceable debt or liability.

3 It is not in dispute that the said cheque had returned dishonoured for “funds insufficient”. The notice demanding payment was served, but the accused did not pay the amount demanded by the notice.

4 Facts in brief are:

The accusedMangesh Govindrao Supare is the Proprietor of Shri Vyankatesh Housing Agency. The accused owned layout in Khasra No. 19: P.H. No.36 situated at Mouza Dhamna, Tah. & Dist. Nagpur. The land was demarcated into plots in the year 2006. There was an agreement to sell entered on 7.8.2006 between the accused and complainant, in respect of Plot No.30 admeasuring 1648 sq.ft. in consideration of Rs.1,64,800/. At the time of agreement, earnest money in the sum of Rs. 41,000/was paid by the complainant and rest of the consideration was payable by monthly installments of Rs. 4000/for months and Rs.23,000/was payable at the time of execution of sale deed. A sum of Rs. 65,000/was paid towards monthly installments, when the accused expressed inability to execute sale deed and proposed the complainant to accept the amount of compensation instead of @ Rs. 150/per sq.ft. and agreed to refund Rs.1,55,000/. The complainant accepted the proposal. Hence the accused issued cheque No. 103443 dated 29.2.2008 in the sum of Rs.1,55,000/drawn upon District Central Cooperative Bank Limited, Gandhi Sagar Branch, Nagpur in favour of the complainant.

5. The cheque was presented for encashment on 28.3.2008 by complainant through ICICI Bank, Nagpur Branch. It returned dishonoured on 28.3.2008 with remarks “funds insufficient”.

6. Demand notice in writing dated 7.4.2009 was sent to the accused calling upon him to pay the amount within 15 days. Though notice was duly received on 24.4.2008, the accused failed to pay within stipulated period from the receipt of notice. Thus complaint was instituted for offence punishable under section 138 of the N I Act.

7. The charge (Exh.15) was explained to the accused to which he pleaded not guilty and claimed trial. The complainant had tendered affidavit and deposed in support of the complaint. The complainant was crossexamined at length. The defence suggested that the cheque in question was forcibly obtained from the accused by father of the complainant and other two persons Shri Madavi and Rokde. Had it been so, the accused would have immediately protested or complained in writing. The accused in his statement u/s 313 Cr.P.C. denied the prosecution case as false.

8. Learned Advocate for complainant/appellant submitted in support of the appeal that the cheque dated 29.2.2008 bearing No.103443 (Exh.24) was drawn upon Nagpur District Central Cooperative Bank Ltd. Nagpur18, in favour of the complainant for a sum of Rs.1,55,000/which returned dishonoured on 28.3.2009 with remarks “funds insufficient”. Notice ( O.C. Exh.26) dated 7.4.2008 was sent to the accused demanding Rs.1,55,000/within 15 days, which the accused received on 19.4.2009 (Exh.28) but failed to pay the amount. The agreement to sell is also produced at Exh.29. The receipt Exhs. 30 to 34 were relied upon which the accused had passed for certain installments paid by the complainant. It is submitted with reference to ruling i