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. 71451 2008 by learned 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 cheque bearing No. 103442 dated 29.02.2008 drawn for the sum of Rs.1,40,000/- on the District Central Co-operative 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, briefly are:

The complainant contended that he is a senior citizen, resident of Nagpur. The accused is having a Housing Agency and is in the business of selling agricultural lands and plots under the name and style Venkateshwar Housing Agency at Nagpur. The complainant had intended to purchase Plot No.29 admeasuring 1648 sq. ft., situated in Khasra No.19 within the Grampanchayat limits of Hudkeshwar, Tah. Nagpur, from the layout of the accused in the name of his daughter Sau, Meenal Shailendra Warthe and had paid sum of Rs.41,000/- as earnest money. The complainant paid a total sum of Rs.1 ,40,000/- towards intended purchase deed, agreeing to pay the balance purchase money at the time of the sale deed. Since the accused expressed inability to execute the sale deed on the ground that he has sold the plot to third person, in lieu thereof, the accused had issued the cheque in question with promise and assurance that it would be honoured, which returned dishonoured for nonpayment, ue to insufficiency of funds and remained unpaid despite demand notice dated 10.4.2008 in writing served upon the respondent/accused on 21.4.2009. The accused failed to pay within stipulated period. Hence the complaint was filed on 17.5.2008.

5. The accused denied the charge on the defence that the complainant had filed false case against him.

6. Learned Advocate for the appellant submitted with reference to evidence that the plot was agreed to be sold for a sum of Rs.1,64,800/- (vide agreement Exh.30). The earnest money of Rs. 41,000/- was paid by cheque; whereas balance amount was payable by 25 installments of Rs. 4000/- each and Rs.23,800/- payable at the time of the execution of the sale deed. The agreement was signed by the accused as Proprietor of the Vyankatesh Housing Agency and he had also acknowledged the receipt of Rs.41,000/- by making endorsement thereon. The complainant had signed on behalf of his daughter. Thus, intending purchaser Meenal had paid some amounts vide Exhs.25 to 29 acknowledged by the accused. Since the agreement could not be materialized as a sale deed as the plot which is subject was sold by the accused to some third person, the settlement was arrived at by which, the accused agreed to pay a sum of Rs.1,40,000/- to he intending purchaser - Meenal as final settlement of her claim and the cheque in question (Exh.24) was given by him to the complainant as payee in discharge of legalliability to repay. The complainant as a father of intending purchaser Meenal was named as payee on the cheque and in view of the ruling in Shankar Finance Investments V s. State of Andhra Pradesh; (2008)8 see 536, was required to file the complaint in view of the Section 142 of the N.I. Act as payee or holder in due course. It was next contended that since one of the conditions to constitute the offence of section 138 of the N.I. Act is that a cheque should have been drawn for the discharge of a legally enforceable "debt or other liability" t