JUDGMENT

Manish Pitale, J. - By this appeal, the appellant has challenged the judgment and order dated 04.04.2009 passed by the Court of Judicial Magistrate First Class, Nagpur, in Criminal Complaint Case No.6135 of 2007, whereby respondent no.1/accused has been acquitted of the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short, ''the aforesaid Act''). It was the case of the appellant/complainant that respondent no.1/accused had issued a cheque for specified amount in favour of the appellant for discharge of a legal debt and that since the cheque was dishonoured, offence under the said provision was committed for which respondent no.1/accused was liable to be punished.

2. The case of the complainant in brief was that, he was desirous of purchasing agricultural land admeasuring 120 acres, for which he along with one Ravindra Phadke entered into an agreement dated(Exhibit 18) with Ratan Khandare and Vijay Tripathi for a total consideration payable at the rate of Rs. 15,50,000/per hectare. It was further claimed by the appellant that he paid an amount of Rs. 5,21,000/to the said two persons and that thereafter he contacted respondent no.1 to help him to complete the transaction, as respondent no.1 was a broker with sufficient experience.

3. According to the appellant, he paid an amount of Rs. 5 Lakh in cash to respondent no.1 for his services and that respondent no.1, executed a document/agreement dated 13.11.2006 (Exhibit 19) acknowledging the acceptance of the aforesaid amount from the appellant. It was further claimed by the appellant that amount of Rs. 5,21,000/given by him to the two aforesaid vendors mentioned in agreement dated was also handed over to respondent no.1 and that a further amount of Rs. 1 Lakh was taken by respondent no.1 from the appellant. Thus, a total amount of Rs. 11,21,000/was said to have been given to respondent no.1, who gave an assurance to help complete the transaction pertaining to purchase of agricultural land.

4. It was then claimed by the appellant that when respondent no.1 failed to discharge his responsibilities, he demanded return of the aforesaid sum of Rs. 11,21,000/from respondent no.1, pursuant to which a cheque for the said amount dated 25.12.2006 was issued by respondent no.1, which was dishonoured. It is pertinent to mention here that a document titled as Memorandum of Understanding (Exhibit 20), dated was brought on record which was allegedly executed between respondent no.1 and the vendors on one hand and the appellant along with copurchaser on the other hand. This document records that there were practical difficulties in completing the transaction and that, therefore, respondent no.1 along with the vendors agreed to refund the said amount of Rs. 11,21,000/to the appellant.

5. It was claimed by the appellant that upon dishonour of the said cheque, notice was issued under the provisions of the aforesaid Act and when respondent no.1 failed to discharge the liability and further failed to pay the said amount of Rs. 11,21,000/, the appellant was constrained to file criminal complaint dated 08.05.2007 under the provisions of the aforesaid Act before the Court of Judicial Magistrate First Class, Nagpur.

6. In support of the said complaint, the appellant placed on record documentary evidence, including agreement dated 07.10.2006 (Exhibit 18), agreement dated 13.11.2006 executed by respondent no.1 (Exhibit 19), Memorandum of Understanding, dated 19.12.2006 (Exhibit 20), the dishonoured cheque, dated 25.12.2006 (Exhibit 21), Bank memo regarding dishonour of cheque (Exhibit 22), notice issued by the appellant (Exhibit 24) and postal receipts (Exhibits25 and 26). The appellant adduced oral evidence by entering the witness box and reiterating the statements made by him in his complaint. The respondent no.1/accused entered the witness box to present his version of the events. Vendors Ratan Khandare and Vijay Trivedi adduced the evidence as defence witnesses f