1. This petition under section 482 of the Code of Criminal Procedure (in brief “Code”) has been preferred for quashing the proceeding of Criminal Case No.24526/2013, pending in the Court of JMFC, Indore and order passed on 3.9.2014.

2. Brief facts of this petition are that respondent/complainant has filed a private complaint under section 138 of the Negotiable Instruments Act, alleging that petitioner and respondent/complainant have entered into an agreement to sell an agricultural land bearing survey No.403/1 admeasuring 1.214 hectors situated at village Badiyakeema, Indore on 28.5.2013 on consideration amount of Rs.1,75,00,000/-. Rs.1,25,00,000/- cash has been given by the petitioner to respondent as advance and a cheque bearing No.297251 dated 3.6.2013 amounting to Rs.25,000/- was issued in favour of respondent as security purpose. It is further alleged that when respondent/complainant presented this cheque for encashment, the same was returned with a note of “insufficient fund”. Then respondent/complainant sent a legal notice dated 13.8.2013 through his counsel and demanded the amount of cheque. Notice was received by the petitioner but payment has not been made and a false reply has been sent. On the basis of the aforesaid complaint, learned JMFC has explained the particulars of offence to petitioner and also dismissed the application for discharging him. Being aggrieved this petition has been filed.

3. It is submitted that respondent/complainant has not filed the present complaint with clean hands. The petitioner and respondent entered into an agreement to sell dated 28.5.2013 in respect of the “land in question” and as per clause 4 of the agreement, which read as under :-

^^;g fd] foØsrk dks mDr laifÙk ij fdlh Hkh izdkj dk ikfjokfjd fookn ugh gS] uk gh dksbZ U;k;ky; esa izdj.k py jgk gSA ;fn fdlh Hkh izdkj fookn vkrk gS rks mldh leLr tckonkjh foØsrk i{k dh jgsxh rFkk pSd dk Hkqxrku fookn ds fujkdj.k ds ckn gh gksxkA**

As per aforesaid clause, any dispute in respect of “land in question”, the same shall be resolved at the cost of respondent and the payment as mentioned in the cheque shall be made after the issue resolved. It is submitted that the respondent concealed the fact from the petitioner that a civil suit is already pending in respect of the “land in question” before the learned IV Additional District Judge, Indore, which was registered as COS No.4-A/2012. In the reply of the notice petitioner has specifically mentioned that the cheque in question was issued as security purpose and not for discharge of the amount. Learned trial Court has failed to consider the fact that the “cheque in question” was issued in favour of the respondent for security purpose, framed the charge under section 138 of the Negotiable Instruments Act. It is further submitted that the learned Magistrate erred in registering the complaint without examining the complainant on oath and inquiry contemplated under section 202 of the CrPC. Learned Magistrate also failed to consider that no cause of action accure in favour of the respondent. It is prayed that proceeding of Criminal Case No.29058/2013 order dated 3.9.2014 be quashed.

4. Learned counsel appearing on behalf of respondent supports the impugned order and submitted that there is no dispute regarding issuance of cheque and further that cheque has been dishonoured. Hence, learned Magistrate has rightly declined to allow the application for discharge. It is prayed that petition be dismissed.

5. I have considered the submissions made on behalf of the parties and perused the record.

6. To appreciate the submissions of the learned counsel it is necessary to consider the nature of the agreement entered into between the parties. Clause 4 of the agreement reads as under :-

^^;g fd] foØsrk dks mDr laifÙk ij fdlh Hkh izdkj dk ikfjokfjd fookn ugh gS] uk gh dksbZ U;k;ky; esa izdj.k py jgk gSA ;fn fdlh Hkh izdkj fookn vkrk gS rks mldh leLr tckonkjh foØsrk i{k dh jgsxh rFkk pSd dk Hkqxrku fookn ds fu