1. The instant revision is for impugning the order dated 13.4.2006 passed by Chief Judicial Magistrate, Vidisha in Criminal Case No. 688/ 05, whereby the learned Magistrate has taken cognizance against the petitioner for the offence punishabe under section 138 of Negotiable Instrument Act (hereinafter referred to as the Act).

2. Shri Bharadwaj for the petitioner has drawn attention at page 2 and 3 of the agreement dated 27.10.2004 and has submitted that as per this agreement to sale, Rs. 65,000/- were received by the petitioner from the respondent and for security the cheque of Rs. 65,000/- was given to the respondent. Hence as observed in Jitendra Singh Flora v. Ravikant Talwar [2001 (1) MPLJ 229] he cannot be held responsible under section 138 of the Act.

3. Countering the contention, Shri Rajput has submitted that as per the aforesaid agreement petitioner was to execute the sale-deed or to return the amount. Neither he returned the amount nor he executed sale-deed. When the amount was claimed he permitted to receive the amount from the bank through the aforesaid cheque. About the same he has averred in para 3 & 4 of the complaint.

4. To appreciate the contentions, the relevant part of the agreement will be required to be perused, which goes as under:

^^1- tks fd eSa vuqca/kdrkZ ,d fcyk IykV 15x30 QhV&450 oxZQhV fLFkr nqxkZuxj okMZ Ø- 34 uxj fofn"kk e-ç- dk o "kewy nhxj IykV~l ds fcyk f"kjDr xSj ekfyd dkfct ,oa nkf[ky tks gj fdLeh ckj o gkFk ls ikd o lkQ gS o tks ikdZ lkQ gks foØ; fd;k tk;sxk ftldk eq> vuqca/kdrkZ dks gj çdkj ls gLrkarfjr djus dk oS/kkfud gd o vf/kdkj çkIr gSA pwafd eq>s okLrs b[kjktkr #i;ksa dh vko";drk gS ekStwnk esa #i;s ik;s] çkfIr dk dksbZ lk/ku miyC/k u gksus ls IykV dk foØ; djuk ykfte gSA--------------

2- #i;k tqekZuk 65]000@&#- vads iSlB gtkj #i;k le{k xokgku vuqca/kxzghrk ls uxn çkIr dj fy;k gS------

3- nksuksa i{kksa ds e/; ;g Hkh r; ik;k gS fd vuqca/kdrkZ us vuqca/kxzghrk dks vkt LVsV cSad vkWQ bankSj "kk[kk dysDVªsV fofn"kk dk ,d pSd Ø- d ,p Vh@lh bZ 2814452 dher dk fn- 18-12-2004 ls ekU; gksxk vuqca/kdrkZ us vuqca/kxzghrk dks çfrHkwfr Lo:i ns fn;k gS ;fn vuqca/kdrkZ fu;e fnukad 10-12-2004 rd vuqca/kxzghrk dks 65]000@& # okil dj nsrk gS rks vuqca/kxzghrk ls viuk pSd okil ys ysxk lkFk gh vuqca/kdrkZ] vuqca/kxzghrk dks vnk"kqnk 65]000@& # ds mi;ksx ds cnys esa tek /ku ij fn;s tkus okys C;kt nj ls vkt fnukad ls vnk;xh fnukad rd C;kt vnk djuk gksxkA ;fn vuqca/kdrkZ dks 65]000@& # ,oa tks Hkh cSad C;kt nj gksxh mlds fglkc ls C;kt lfgr okil djus esa ghyk gokyk djs rks vuqca/kxzghrk dks gd gksxk fd og vo"ks'k #i;k 85]000@& # vads fiPp;klh gtkj #i;k vnk djds vuqcaf/kr IykV dh jftLVª c;ukek t;sZ vnkyr gLo tkrk fu'ikfnr vuqca/kdrkZ ls vius i{k esa fu'ikfnr ,oa iathc) djk ysa o blesa vuqca/kdrkZ o mlds okjlku dh dksbZ vkifÙk u gksxhA---------**

Thus, it appears that no right has been given by the executer of the agreement/the petitioner to the respondent to recover any amount from the aforementioned cheque. It has only been agreed to, that in case an amount o Rs. 65,000/- is repaid to the respondents upto 10th of December, 2004, then in that case the cheque will be received back by the petitioner from the respondent. It is also agreed to that in case amount is not paid with interest then respondent will be entitled to pay the balance to petitioner of Rs. 85,000/- and get this agreement executed and then petitioner will be liable to execute the sale deed in favour of the respondent. No where it is agreed, that respondent shall be entitled to recover the amount from the aforementioned cheque by presenting the same in bank. Thus, it cannot be said that any legal debt or liability is attached to the cheque. In this case, it is only for security and in case any breach of agreement too rights have been given to the respondent as aforesaid.

5. As argued by Shri Rajput, the respondent has neither paid the amount nor executed the sale deed. In that case, as per the agreement, the respondent can