1. The appellant, who is the original complainant in Summary Criminal Case 160 of 2004 is challenging the judgment and order dated 22.2.2005 rendered by the Judicial Magistrate First Class, Washim by and under which, the respondent 1 – accused is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 (“Act” for short).

2. Heard Shri C.A. Joshi, the learned counsel for appellant and Shri S.R. Deshpande, the learned counsel for respondent 1.

3. The short submission of Shri C.A. Joshi, the learned counsel for the complainant is that the learned Magistrate failed to appreciate that the accused could not rebut the statutory presumption under section 118(a) and 139 of the Act. The defence, that the accused entered into an oral agreement to purchase plot from the complainant and a blank cheque was given towards payment of the earnest amount which was not returned despite the frustration of the agreement, is not probabilized even on the touchstone of preponderance of probabilities, is the submission.

Per contra, Shri S.R. Deshpande, the learned counsel for the accused would submit that the evidence on record would suggest that the financial capacit