JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

2. The applicant takes exception to the judgments and orders of conviction of the learned Judicial Magistrate First Class (Court No.16), Aurangabad, in SCC.No.3149 of 2019, dated 06.05.2022 and confirmed in Appeal No.69 of 2022, dated 16.11.2022 by the learned Additional Sessions Judge, Aurangabad.

3. The "applicant" would be referred to as an "accused" and the "respondent" as the "complainant" for convenience.

FACTS:

The complainant had a case that the accused approached her through estate broker Shri. Bhimchand Govindrao Desai to purchase her landed property situated at Dhanegaon, Taluka Gangapur. After negotiation, the consideration was agreed upon and settled at Rs.56,50,000/-. An agreement to sale was also executed, and the mode of payment was by cheque. Hence, cheque numbers were written in the agreement. However, the accused did not sign the agreement. She, the broker and another witness signed it. The original agreement was handed over to the accused, and its copy was retained. The sale was to be executed within two months. Before executing the sale deed, the accused requested the complainant to show consideration for Rs.36,50,000/-. He promised to pay the balance consideration of Rs.20,00,000/- in cash within a short period after selling some of the plots out of her land sold to him. He agreed if he would not pay the balance consideration in cash within fifteen days, the cheque bearing No.125856 drawn on the Cosmos Bank (disputed cheque) be presented for encashment. Surprisingly, the accused issued a notice to the complainant stating that the agreed consideration was Rs.36,50,000/- and the cheque in dispute was delivered as a security to the complainant, as it was their first transaction. His notice was replied. The cheque in dispute was presented to her bank for encashment on 21.12.2018. However, the accused had instructed the bank to 'stop payment'. Hence, on 15.01.2019, a statutory notice was served upon the accused. The accused did not reply to the said notice.

4. It was a defence that the cheque in dispute was delivered to the complainant as a security and never intended to be encashed. Therefore, there was no legally enforceable debt.

5. The learned senior counsel appearing for the accused has vehemently argued that both courts erred in law in believing the complainant's case that the cheque in dispute was given towards the balance consideration. The agreement of sale dated 06.03.2018 was unregistered and signed by the complainant only. Since the accused did not sign, it was an incomplete agreement that did not bind him. These circumstances prove that the cheque in dispute was given as a security. The complainant nowhere mentioned whether the cheque in dispute was post-dated or otherwise. He raised a question. How the sale agreement can be executed after the execution of the sale deed. The cheque in dispute also became ineffective. The complainant wrote the false contents and date on the cheque with ill intent. The power of attorney of the complainant has admitted that on the date of the execution of the sale deed, there was no separate agreement about the balance consideration of Rs.20,00,000/- to be paid in cash.

6. He has referred to Illustration(b) of Section 63 of the Indian Evidence Act and vehemently argued that the Xerox copy of the agreement to sell was secondary evidence, and unless the original was produced before the Court, secondary evidence was inadmissible in evidence. However, both Courts erroneously received it in the evidence.

7. The learned senior counsel relied on the case of Joseph Vilangadan Vs. Phenomenal Health Care Services Ltd. and another ; 2010 (5) AIR Bom. R 554, and vehemently argued that the limitation starts from the date of the delivery of the cheque. Therefore, the claim of the applicant is barred by limitation. The arguments of the learned senior counsel for the accused mainly revolve around