Judgment By this appeal, the appellant/original complainant has challenged validity and legality of the judgment and order dated 11th May 2007 passed by the Judicial Magistrate, FC (Special Court u/s 138 of the Negotiable Instruments Act), Nagpur whereby complaint of the appellant is dismissed and respondent no.1 accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act. 2. Appellant herein was complainant before the Special Court while respondent no.1 was accused. Parties hereinafter shall be referred to as per their original status in the complaint. 3. Complainant sold his land bearing Survey Number 48/13/2, area 0.03 HR situated at mouza Jawali (Medha), District Satara for a consideration of Rs. 9 lacs to the accused vide sale deed dated 27.1.2004. At the time of execution and registration of sale deed, accused paid an amount of Rs. 7 lacs to the complainant-vendor and for payment of remaining consideration amount, accused issued two postdated cheque of the following description to the complainant : (1) Cheque No. AC/50/745026 dated 30.6.2005 for Rs. 100,000/-drawn Janta Sahakari Bank Limited, Medha Branch, Satara. (2) Cheque No. AC/50/745028 dated 30.6.2007 for Rs. 100,000/-drawn on Janta Sahakari Bank Limited, Medha Branch, Satara. 4. Complainant presented cheque bearing No. AC/50/745026 dated 30.6.2005 for Rs. 100,000/-with his banker viz. Bank of Baroda, Sitabuldi Branch, Nagpur for encashment. However, the cheque was returned with the remarks that the payee stopped payment of cheque and complainant received such intimation through his bankers under memorandum dated 8.7.2005. Complainant issued notice dated 22.7.2005 through his advocate to the accused calling upon him to make the payment of dishonoured cheque within a period of fifteen days from the receipt of notice. Notice was duly served on the accused, but he failed to comply with the demand made by complainant and denied his liability vide reply notice dated 8.8.2005. Complainant then filed complaint under Section 200 Cr.P.C. for an offence punishable under Section 138 of the Negotiable Instruments Act against the accused. 5. Learned Special JMFC framed particulars of offence and the same were read over and explained to the accused. Accused pleaded not guilty. Complainant then filed complaint under Section 200 Cr.P.C. for an offence punishable under Section 138 of the Negotiable Instruments Act against the accused. 5. Learned Special JMFC framed particulars of offence and the same were read over and explained to the accused. Accused pleaded not guilty. Defence of the accused, as disclosed from his evidence on affidavit, and his statement recorded under Section 313 Cr.P.C., is that as per the version of complainant, the fields were admeasuring 607.20 square meters though the Government records showed the area of the fields to be 523.2 square meters and, therefore, complainant had assured that he would get measurement of the land carried out immediately after execution of sale deed to confirm that the area sold is admeasuring 607.20 square meters and if the area is found to be lesser, consideration will be reduced in terms thereof. He further states that complainant had made application for measurement of the land on 31.1.2004 to the Taluka Inspector of Land Records, Medha and in pursuance thereto, land was measured on 17.12.2004 where the area of the land was found to be 523.2 square due to which power of attorney holder Mr Anil S. Deshmukh of the complainant withdrew the application on the ground that there was difference in the area shown after measurement in the year 1996 and the one that took place on 17.12.2004. Preciously enough, the accused wants to say that complainant is entitled to receive consideration for 523.2 square meter of land and not for 607.20 square meter of land as claimed by him. Thus, according to him, the amount under cheque could not have been termed as a legally enforceable liability or debt against him. 6. Learned counsel for the appellant states that in the sale deed (paragraph 12) there is clear-cut mention about balance of consideration and now, the accused cannot get back from his legal liability. He argues that story of measurement and incorrect area etc. is a concocted one and it is invented by the accused just to avoid payment of full consideration. 7. In the present case, after bouncing of the cheque, complainant had issued notice dated 22.7.2005 calling upon the accused to make payment of cheque for Rs.1 lakh within 15 days from the receipt of notice. is a concocted one and it is invented by the accused just to avoid payment of full consideration. 7. In the present case, after bouncing of the cheque, complainant had issued notice dated 22.7.2005 calling upon the accused to make payment of cheque for Rs.1 lakh within 15 days from the receipt of notice. Notice was replied by accused on 8/8/2005 and in reply notice, accused reminded the complainant of the agreement between the parties that unless tin shed erected by one Suresh Maruti Parte is removed and actual measurement of land is carried out, accused was not liable to pay balance of consideration. Accused assured in the said reply notice that after compliance of terms and conditions arrived at by and between them, he would immediately make the payment of balance of consideration. 8. Prior to the exchange of the above notices, it is revealed from record that accused had sent notice dated 21.2.2005 to the complainant calling upon him to make compliance with agreed terms and conditions. It was a detailed notice whereby the accused had made it clear to the complainant that he should not present any of the cheques for realization unless tin-shed is removed and land is got measured. He had further it clear to the complainant that he was instructing the Bank to stop payment of cheque if presented for realization. To this notice, complainant had given reply dated 24.5.2005. Accused sent counter-reply dated 27.6.2005 wherein he reiterated his stand and informed the complainant that he had stopped payment of both the cheques if presented for encashment. 9. It is not in dispute that the complainant himself had made application for measurement of land to the Taluka Inspector of Land Records, Medha through his power of attorney holder and that he withdrew the same after noticing that after measuring the area of the land was 523.2 square meter. 10. It is further not in disputed that accused has filed Special Civil Suit No. 17 of 2006 before the Civil Judge, Senior Division, Satara for mandatory injunction against the complainant (defendant) to satisfy the accused (plaintiff) that area of the land sold to him is 6 R and if it is found to be lesser that 6 R, complainant (defendant) should reduce the amount of consideration. Both the counsel state that the suit is still pending. 11. Both the counsel state that the suit is still pending. 11. Complainant in his notice dated 22.7.2005 no where made mention of the earlier notices exchanged between the parties and refuted the demands made by accused as non-existent and in order to avoid payment of balance consideration. Even in the memo of complaint, there are no averments opposing the demands made in the notices. In paragraphs 2 and 3 of the memo of complaint, it is simplicitor averred that accused had cheque in question which was deliberately bounced; notice was issued and it was replied by admitting that the payment under cheque was stopped and some false allegations therein were made. 12. In view of what is discussed in paragraphs 7 to 11, I have reached to a conclusion that the accused in the present case has successfully rebutted presumption regarding cheque being legally enforceable debt or liability. There is no justifiable reason to interfere with the impugned judgment and order of acquittal. 13. In the result, appeal is dismissed.