JUDGMENT : Prashant Kumar Agarwal, J. By way of this appeal under Section 378(4) Cr.P.C., the complainant-appellant has challenged the judgment and order dated 16.8.2016 passed by the Chief Metropolitan Magistrate (Economic Offence), Jaipur Metropolitan, Jaipur in Criminal Case No.607/2016 whereby the learned trial Court by dismissing the complaint filed by the appellant acquitted the accused-respondent for offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the Act"). The complaint was dismissed with a finding that the disputed cheques were to be encashed on the execution of the sale-deed and the sale-deed having not been executed. It was also found by the trial Court that no liability or debt was due unless sale-deed is being executed and the respondent has rebutted the presumption under Section 139 of the Act that the cheque was not issued in the discharge of any existing legal liability or debt. 2. In this appeal following two moot questions are involved to be decided by this Court:- (1) Whether in the facts of the case the cheques in dispute cannot be said to have been issued for the discharge of any existing legally enforceable liability and, therefore, offence under Section 138 of the Act is not made out even if the same were dishonoured. (2) Whether in the facts of the case the respondent was constrained to stop the payment of the disputed cheques by the reason that appellant and his brothers expressed their inability to execute a registered sale-deed in respect of the land which they agreed to sell to respondent in compliance of the agreement to sell dated 1.8.2005 as at the relevant time stay order by a Court was in existence. 3. Apart from these two questions, some ancillary questions are also involved in the appeal. 4. From the pleadings of the parties, evidence made available on record and admissions made by the parties, now dispute does not exist between them about following facts:- (1) Appellant-complainant and his two brothers-Shri Mohanlal Gupta and Shri Rajendra Koolwal agreed to sell ¼ of their share measuring 8 bighas comprising in agriculture land bearing Khasra Nos. 4. From the pleadings of the parties, evidence made available on record and admissions made by the parties, now dispute does not exist between them about following facts:- (1) Appellant-complainant and his two brothers-Shri Mohanlal Gupta and Shri Rajendra Koolwal agreed to sell ¼ of their share measuring 8 bighas comprising in agriculture land bearing Khasra Nos. 13, 287, 292 and 298 situated at Village Lalchandpura Tehsil and District Jaiput to respondent at the rate of Rs.18,21,000/- per bigha and in this regard an agreement to sell was also executed on 1.8.2005 and Rs.21,00,000/- were paid by respondent in cash to complainant and his brothers at the time of execution of the agreement. (2) One of the conditions of the agreement was that on execution of the registered sale-deed, the original title-deeds and possession of the land would be handed over to the respondent and the remaining amount of sale consideration would be paid by him to the sellers i.e. appellant and his brothers. (3) The disputed cheques covering a total amount of Rs.22,50,000/- dated 26.3.2006 were issued by the respondent in favour of appellant as part of sale consideration. (4) An amount of Rs.53,30,000/- was also paid by respondent in cash to the appellant towards balance amount of the sale consideration on 14.5.2006. (5) When the disputed cheques were presented by the appellant in the concerned bank for encashment on 4.9.2006, they were returned dishonoured on 5.9.2006 with the endorsement of "insufficient fund" in the account for which they were issued by the respondent. (6) Demand notice was sent on 11.9.2006 by the appellant through his counsel to respondent which was duly served upon him but neither the amount covered by these cheques was paid nor any reply was given. (7) In Revenue Application No.66/2004 filed by Shri Rajendra Koolwal, brother of complainant, against three persons before Sub Divisional Officer, Jaipur against order dated 20.11.2004 passed by the Gram Panchayat Sarna-Doongar in mutation proceedings No.247, stay order was passed by the S.D.O. on 28.12.2004 against the persons who were party to the aforesaid application to the effect that status quo may be maintained by them with respect to the land for which the order has been passed in mutating proceeding No.247. It is to be noted that appellant-complainant was not party to the stay order in any capacity and he and his brothers were not restrained by the Court for selling the land in dispute which was also the subject matter of aforesaid mutation proceedings. (8) The aforesaid Revenue Application No.66/2004 was dismissed by the S.D.O. as not pressed vide order dated 10.4.2006 and consequent thereof the order of status quo passed on 28.12.2004 stood vacated even to the extent of keeping the record in the same position as it was in existence before order was passed on 20.11.2004 by the Gram Panchayat. (9) Notice was not given by the respondent to appellant and his brothers with a request to execute registered sale-deed in compliance of the agreement to sell and hand over possession of the land to him after obtaining the remaining amount of sale consideration. No notice was also given by respondent to appellant stating that he is unable to make payment of the cheques in dispute as the appellant and his brothers are not in a position to execute sale-deed in his favour by the reason that there is stay order by a Court. 5. In support of the appeal, learned counsel for the appellant has submitted as below:- (1) The respondent having admitted that the cheques were issued by him towards balance amount of sale consideration, presumption would be raised under Section 139 of the Act that the cheques pertain to an existing legally enforceable liability and burden shifted on the respondent to prove that there was no such liability in existence but evidence could not be produced on his behalf in this regard and even he did not appear as witness in defence to support his stand. (2) Part or full payment of sale consideration can be made by the buyer to the seller of an immovable property even before registered sale-deed is executed and there is no such condition that sale of an immovable property is complete only when sale consideration is made at the time of execution of the sale-deed. (2) Part or full payment of sale consideration can be made by the buyer to the seller of an immovable property even before registered sale-deed is executed and there is no such condition that sale of an immovable property is complete only when sale consideration is made at the time of execution of the sale-deed. (3) It is an admitted fact that Rs.21 lacs were paid in cash towards part of sale consideration at the time of execution of agreement on 1.8.2005 and another amount of Rs.53,30,000/- in cash was also paid on 14.5.2006 in spite of the condition in the agreement that the remaining amount of sale consideration would be payable at the time of execution of the registered sale-deed. This shows that the respondent agreed to make payment of part of sale consideration even before execution of the sale-deed and the condition of the agreement was not adhered to. (4) Issuance of disputed cheques dated 26.3.2006 shows intention on the part of the respondent that he agreed to make more payment towards balance sale consideration and, therefore, the amount covered under the cheques was an existing legally enforceable liability within the meaning of Section 138 of the Act but the learned trial Court did not consider this aspect of the matter in a right perspective. As soon as the disputed cheques were issued and handed over by respondent to appellant towards balance amount of sale consideration, a legally enforceable liability came into existence and right accrued to appellant to demand and enforce payment of amount covered by the cheques. The amount of the cheques was not as advance towards sale-deed to be executed between the parties later-on but towards balance sale consideration which the respondent promised to pay even before execution of the sale-deed. There is distinction between an amount paid in advance and an amount paid towards balance amount which a person has legal obligation to pay. (5) Cheques were dishonoured due to lack of sufficient funds in the bank account for which they were issued and not due to stop payment instruction given by the respondent now projected by respondent as an afterthought after conclusion of the trial. Demand notice served upon the respondent remained un-replied. (5) Cheques were dishonoured due to lack of sufficient funds in the bank account for which they were issued and not due to stop payment instruction given by the respondent now projected by respondent as an afterthought after conclusion of the trial. Demand notice served upon the respondent remained un-replied. Notice was not given by respondent to appellant that amount covered under the cheques is not presently payable as they are not in a position to execute sale-deed due to stay order by a Court. No such suggestion was made to the appellant in his cross-examination. No such plea was taken by respondent in his statement recorded under Section 313 Cr.P.C. Respondent did not appear in defence as witness to support his stand which is being taken by him depriving appellant to cross-examine him. (6) No evidence is available on record to show that appellant and his brothers were restrained by a Court for executing sale-deed of the agriculture land which they agreed to sell vide agreement dated 1.8.2005 to respondent. In absence thereof, mere admission made by appellant in cross-examination does not amount unwillingness of appellant to execute sale-deed before the cheques were presented for payment. 6. In support of his submissions, learned counsel for the appellant relied upon the cases of Rangappa v. Mohan reported in AIR 2010 SC 1898 and Yavatmal District Mahesh Urban Credit Co-Op. Society Ltd. v. Narayanrao Ukandrao Paikrao reported in 2011 (4) Crimes 182 (Bom.). 7. On the other hand, learned counsel for the respondent defending the findings of the trial Court, submitted as below:- (1) As per Section 54 of the Transfer of Property Act, sale of an immovable property is complete only upon execution of a registered sale-deed and before that there is no liability on buyer to make part or full payment of sale consideration and, therefore, even if cheques were issued by the respondent towards part payment of sale consideration, they cannot be said to be in discharge of any existing legally enforceable liability as rightly held by the learned trial Court more particularly in view of the condition in the agreement dated 1.8.2005 that the remaining amount would be paid at the time of execution of the sale-deed. (2) Respondent was not obliged to make payment of the remaining amount before execution of the registered sale-deed. (2) Respondent was not obliged to make payment of the remaining amount before execution of the registered sale-deed. Issuance of cheques does not mean that the respondent agreed that the amount covered under them is towards remaining sale consideration payable even before execution of sale-deed and at the most it can be said that amount of cheques was payable at the time of execution of sale-deed. Otherwise also, the amount covered under the cheques was as an advance for the execution of the registered sale-deed and not towards the balance of the sale consideration and the sale-deed having not been executed they cannot be said to have been issued in discharge on a legally enforceable existing liability as required under Section 138 of the Act. In absence of execution of sale-deed, there was no legally enforceable liability in existence when the cheques were issued and in absence thereof respondent was not obliged to make arrangement for payment of amount covered under the cheques and, therefore, offence under Section 138 of the Act is not made out. (3) Trial Court has rightly found that appellant failed to prove his initial burden that cheques were issued for any existing liability. Offence is not made out merely by the reason that a cheque was issued and it was dishonoured. It must also be proved that it was for discharge of a legally enforceable debt or other liability. (4) Appellant having admitted in his cross-examination that he was not in a position to execute the sale-deed due to stay order passed by a Court, it became irrelevant that demand notice was not replied, notice was not sent by respondent to show inability on his part to make arrangement for payment of the cheques, plea was not specifically taken in statement under Section 313 Cr.P.C. showing cause for non payment or respondent did not appear as defence witness to support his stand. An admission made by a party is best evidence to prove a fact. As appellant was unable to execute sale-deed before stay is vacated by the Court, respondent was having a right to stop payment of the cheques. (5) Scope of an appeal against order of acquittal is very limited. There is no perversity, illegality or non-consideration of evidence in the impugned order requiring interference by this Court. 8. As appellant was unable to execute sale-deed before stay is vacated by the Court, respondent was having a right to stop payment of the cheques. (5) Scope of an appeal against order of acquittal is very limited. There is no perversity, illegality or non-consideration of evidence in the impugned order requiring interference by this Court. 8. In support of his submissions, learned counsel for the respondent relied upon the cases of M/s Indus Airways Pvt. Ltd. & Anr. v. M/s Magnum Aviation Pvt. Ltd. & Anr. reported in 2014 (2) DCR 417 and M/s IFK Technologies Ltd. v. Sasi Bhusan Raju reported in 2013 (2) DCR 230. 9. I have considered the submissions made on behalf of the respective parties in the light of the evidence available on record, relevant legal provisions and the case law relied upon on behalf of the parties. 10. As per the language used in Section 138 of the Act, offence under it can be made out only when it is shown that the cheque was issued for the discharge, in whole or in part, of a legally enforceable debt or the other liability. Hon'ble Supreme Court in the case of M/s Indus Airways Pvt. Ltd. (supra) has held that Section 138 of the Act treats dishonoured cheque as an offence, if the cheque has been issued in discharge of any debt or other liability. The explanation leaves no manner of doubt that to attract an offence under Section 138, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. In other words, drawal of the cheque in discharge of existing or past adjudicated liability is sine qua non for bringing an offence under Section 138 of the Act. 11. In the facts of the present case, it is to be seen whether the cheques in question were issued in discharge of such debt or liability or not. It is also to be seen whether the amount covered under the cheques was to be paid towards balance sale consideration as claimed by the appellant or the cheques were issued as an advance payment of sale consideration actually payable only at the time of execution of the sale-deed as per the terms and conditions of the agreement to sell dated 1.8.2005. It is an admitted fact that the land was agreed to be sold by the appellant and his brothers to respondent at the rate mentioned in the agreement and as a token of advance payment of sale consideration, an amount of Rs.21 lacs was paid in cash by the respondent. Although, there is a condition in the agreement that the remaining amount of sale consideration would be paid at the time of the execution of the sale-deed but that condition was not adhered to and the disputed cheques dated 26.3.2006 covering a total amount of Rs.22,50,000/- were issued and an amount of Rs.53,30,000/- was also paid in cash on 14.5.2006. This clearly shows intention on the part of the respondent that he agreed to make payment of part of the balance of the sale consideration even before sale-deed was executed. Some part of sale consideration was paid in cash and some by way of cheques. Cheque is also one of the mode of payment of money. Thus, it is clear that amount covered under the cheques was towards balance amount of sale consideration and not as an advance which is generally paid when an agreement of sell is entered into between seller and the buyer. 12. As per Section 54 of the Transfer of Property Act, sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. It cannot be disputed that sale of an immovable property of the value of one hundred rupees and upwards is complete only when a registered document is executed but payment of sale consideration at the time of execution of sale-deed is not necessary for the completion of the sale. The sale consideration can be paid in part or in whole even before execution of the sale-deed. It can be paid in part or in whole at the time of the execution of the sale-deed and even after execution of the sale-deed. It all depends upon the agreement entered into between the parties in this regard. In the present case respondent agreed to pay Rs.21 lacs at the time of the agreement dated 1.8.2005. He later on agreed to pay Rs.53,30,000/- in cash on 14.5.2006 even before sale-deed was executed. Not only that he also agreed to pay part of balance of sale consideration by way of disputed cheques. In the present case respondent agreed to pay Rs.21 lacs at the time of the agreement dated 1.8.2005. He later on agreed to pay Rs.53,30,000/- in cash on 14.5.2006 even before sale-deed was executed. Not only that he also agreed to pay part of balance of sale consideration by way of disputed cheques. In the view of this Court as soon as disputed cheques were issued, a right accrued to the appellant to receive the amount covered under the cheques as part of the remaining sale consideration as promised by the respondent and, therefore, it can be held that cheques were issued for discharge of an existing legally enforceable liability. By issuing cheques towards balance sale consideration a liability was taken by the respondent upon himself to ensure that amount thereof is paid to the person in whose favour they were issued and similarly a right accrued to appellant to receive payment thereof. Although, an agreement of sale does not itself creats any interest or right in the property and ownership remains with the seller until sale-deed is executed but at the same time buyer gets a right to get the sale-deed executed in his favour. In breach of a condition of the agreement to sell by a party to it, the other party has a right for its enforcement. In the present case when cheques were issued as part payment of the sale consideration, this also became a condition of the agreement giving a right to appellant to seek payment of the cheques even before sale deed was executed. In my view, if by way of an agreement or promise an amount of money becomes payable by reason of a present obligation, then such amount must be treated to be a liability enforceable in law as required under Section 138 of the Act. In the present case, the cheques were issued to full-fill the present obligation to make payment of the part of sale consideration. 13. Now, it is to be seen whether respondent was constrained to stop payment of the cheques before they were presented in bank it came into his knowledge that appellant and his brothers are not in a position to execute sale-deed due to stay order by a Court. The cheques are dated 26.3.2006 and admittedly they were presented in bank for payment on 4.9.2006. The cheques are dated 26.3.2006 and admittedly they were presented in bank for payment on 4.9.2006. As already said, it is not in dispute that cheques were dishonoured due to "insufficient funds" in the account for which they were issued. This is supported by the return memo of bank Ex.P3 and Ex.P4 dated 5.3.2006. Cheques were not dishonoured due to stop payment instruction from the respondent. No evidence is available on record to show that respondent was having knowledge of any stay order by a Court before 4.9.2006 when cheques were presented in bank for payment. Demand notice dated 11.9.2006 remained un-replied showing that even at that time respondent was not having knowledge of the stay order. Notice was not given by respondent to appellant with averment that amount covered under the cheques is not payable as they are not in a position to execute the sale-deed due to stay order by a Court. Suggestion was not made in the cross-examination of the appellant that payment of cheques was stopped as they were not in a position to execute sale-deed. Although, in his statement under Section 313 Cr.P.C. it was stated by respondent that after execution of agreement it came into his knowledge that the land agreed to be sold is a disputed land and stay order by more than one Court has been passed but it was not clarified by him when he got knowledge of the stay order and why steps were not taken by him to inform the appellant about it before cheques were presented in bank. Plea taken by an accused first time in his statement under Section 313 Cr.P.C. is of no value and it does not amount to evidence. As already noticed, respondent did not appear as witness in defence depriving appellant to cross-examine him. All this shows that cheques were not dishonoured due to stop payment and it is an afterthought on the part of the respondent. 14. Now, it is also to be seen whether appellant and his brothers were not in a position to execute sale-deed due to stay order by a Court. Appellant in his cross-examination has denied the suggestion that at the time of execution of agreement to sell (Ex.D1), dispute was in existence or suit was in pending in respect of the land agreed to be sold and stay order was passed by a Court. Appellant in his cross-examination has denied the suggestion that at the time of execution of agreement to sell (Ex.D1), dispute was in existence or suit was in pending in respect of the land agreed to be sold and stay order was passed by a Court. He further denied the fact that order dated 27.1.2005 passed by S.D.O. Jaipur and order dated 8.7.2005 passed by A.C.M. were in his knowledge and he deliberately concealed these orders from respondent when agreement was executed on 1.8.2005. It has been admitted by appellant in his cross-examination that during the period in which these stay orders were in force, they were not in a position to execute registered sale-deed and hand over possession of land to respondent. It is to be noted that copy of these two orders have not been placed on record and in absence thereof, nature of stay orders is not clear and it is also not clear whether appellant was party to these orders or not. It is also not clear whether appellant and his brothers were restrained by the Court to sell the land. Perusal of copy of Jamabandi Ex.D2, at the most shows that stay order was to maintain status quo of the revenue record in the same position but that does not mean that appellant and his brothers were restrained to sell the land which they agreed to sell to respondent. As per the order dated 28.12.2004 (Ex.P12) also, only status quo order was passed by S.D.O. Jaipur in Application No.66/2004 filed by Shri Rajendra Koolwal for keeping the revenue record in the same position as it was in existence when order of mutation was passed by the Gram Panchayat on 20.11.2004 in proceedings No.247. It appears that mutation proceedings No.247 were initiated by three persons claiming to be co-sharer in the land, part of which is subject matter of agreement to sell, before the Gram Panchayat and vide order dated 20.11.2004 the mutation proceedings were allowed in their favour by Gram Panchayat. Shri Rajendra Koolwal challenged that order under appeal before S.D.O. Jaipur and by way of order dated 28.12.2004, operation of order dated 20.11.2004 was stayed and status quo for keeping the revenue record in the same position was passed but merely by that reason it cannot be accepted that appellant and his brothers were restrained to sell the land. Shri Rajendra Koolwal challenged that order under appeal before S.D.O. Jaipur and by way of order dated 28.12.2004, operation of order dated 20.11.2004 was stayed and status quo for keeping the revenue record in the same position was passed but merely by that reason it cannot be accepted that appellant and his brothers were restrained to sell the land. It is further clear that by way of order dated 10.4.2006 Ex.P13, the proceedings initiated under Application No.66/2004 were dismissed as not pressed and as a result thereof even the status quo order dated 28.12.2004 stood vacated. In my considered view in absence of a clear stay order by a Court restraining the appellant and his brothers to sell the land covered under the agreement to sell dated 1.8.2005 to respondent or any other person, the said admission made by appellant in his cross-examination is of no value giving a right to respondent to stop payment of the cheques in dispute more particularly in view of the fact that no evidence is available on record to show that respondent was having knowledge of any stay order before the cheques were presented for payment in the bank. It is well settled legal position that admission made by a party is not always binding upon him and of conclusive nature. In the present case admission has been made by the appellant in cross-examination without considering the real nature of the stay order. In my view admission made by appellant does not also support the stand taken by the respondent. 15. So far as the case law relied upon on behalf of the respondent is concerned, the principle of law laid down by the Hon'ble Supreme Court in the case of M/s Indus Airways Pvt. Ltd. (supra) being based on different set of facts does not helpful to the respondent. From the facts of the case it is clear that the cheque in dispute was issued as an advance payment for purchase of the goods and before the cheque was presented for encashment, the supplier received a letter from the purchaser cancelling the purchase order and requesting the supplier to return the cheque but even then the cheque was presented for payment and the same was dishonoured due to stop payment instruction by the drawyer. In these circumstances, it was held that dishonour of cheque cannot come within the purview of Section 138 of the Act as there was no legally enforceable liability was in existence. In the present case factual position is entirely different as cheques were given towards balance amount of sale consideration which was payable even before execution of sale-deed and they were dishonoured due to insufficient funds in the account and not due to stop payment. Here it would be useful to refer the case of Samplelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited reported in (2016) 10 SCC 458 in which the case of M/s Indus Airways Pvt. Ltd. & Anr. (supra) was considered and distinguished. In this case Hon'ble Court has held that the question whether a post dated cheque is for "discharge of debt or liability" depends on the nature of the transaction. If on the date of the cheque, liability or debt exists or the amount has become legally recoverable, the section is attracted and not otherwise. It was further held that the crucial question to determine applicability of Section 138 of the Act is whether the cheque represents discharge of existing enforceable debt or liability or whether it represents advance payment without there being subsisting debt or liability. In the case before Hon'ble Court, the cheque in dispute was issued as security even before the amount covered by it became payable but even then it was held that it was for discharge of a legally enforceable existing liability. In the present case, this Court has found that disputed cheques were issued by the respondent towards payment of balance amount of sale consideration as agreed by him even before execution of sale-deed and they were for discharge of a legally enforceable existing liability, offence under Section 138 of the Act is clearly made out against the respondent and he is liable to be punished accordingly. In the facts and circumstances of the case and more particularly looking to the amount involved, he is sentenced to undergo imprisonment for one year. As per sub-section (3) of Section 357 Cr.P.C., an amount of Rs.30 lacs is also awarded to the appellant from the respondent as compensation for the loss incurred by him due to dihonour of the cheques in dispute and to defray the expenses incurred in pursuing the prosecution. As per sub-section (3) of Section 357 Cr.P.C., an amount of Rs.30 lacs is also awarded to the appellant from the respondent as compensation for the loss incurred by him due to dihonour of the cheques in dispute and to defray the expenses incurred in pursuing the prosecution. Looking to the amount of sale consideration for which the land was purchased and the amount already paid by the respondent towards sale consideration, this Court is of the view that respondent has a capacity to pay the aforesaid amount as compensation and no further material is required to determine the amount of compensation to be awarded. Thirty days time is granted to the respondent from today to deposit the aforesaid amount in the trial Court in the form of a demand draft issued by a Nationalized Bank in the name of appellant. If the respondent fails to deposit the amount within the period granted by this Court, he would undergo further imprisonment for six months. Respondent-accused is directed to appear before the trial Court on or before 8.5.2017 to serve the sentence awarded by this Court. In case the respondent fails to do so, appropriate steps will be taken by the trial Court in accordance with law to ensure the presence of respondent before it so that he can serve the sentence so awarded. 16. Consequently the impugned judgment and order dated 16.8.2016 passed by the Chief Metropolitan Magistrate (Economic Offence), Jaipur Metropolitan, Jaipur in Criminal Case No. 607/2016 is set aside and the appeal filed by the appellant is allowed in the aforesaid manner.