1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R Dharmesh Singh vs. Suresh S.B. Criminal Leave to Appeal No.74/2004 under Section 378(iv) Cr.P.C. against the judgment dated 16.02.2008 passed by Shri Jagat Singh Panwar, RJS, Addl. Chief Judicial Magistrate No.1, Hindaun City in criminal case no.77/07(146/06). Date of Order ::::: February 25,2009 Present HON'BLE MR.JUSTICE BHANWAROO KHAN Madhu Meena for the complainant-appellant Mr. Pankaj Gupta for accused-respondent The facts relevant for the disposal of this criminal leave to appeal in short are that complainant appellant Dharmesh Singh filed a complaint against accused-respondent Suresh for commission of offence under Section 138 of the Negotiable Instruments Act (hereinafter referred to as `the Act') with the allegations that accused respondent borrowed Rs.70,000/- from him and for the repayment of the borrowed amount cheque No.315400 amounting to Rs.70,000/- was 2 issued on 25.10.2005. The cheque was submitted for clearance on 14.1.2006, the same was returned with the remarks `stop-payment'. A notice was also served, which was duly received by the accused but no payment was made. In such circumstances the complaint was filed. The trial court took cognizance of the offence and summoned the accused respondent, who appeared before the trial court and pleaded not guilty. To prove his case the complainant appellant examined four witnesses and got exhibited six documents. In defence the accused respondent has admitted the facts regarding issuance of cheque and stopping payment of the same but pleaded that the complainant on 11.10.2005 had purchased two submersible pump sets amounting to Rs.54,500/- and also got issued a submersible pump set to Ram Dayal on his behalf with this condition that the cheque issued by him would be returned to the accused respondent but inspite of this fact when the complainant did not return the cheque, he instructed the bank to stop payment as there was a dispute about payment of pump-sets. As there was dispute between the parties 3 regarding payment the payment of the cheque was got stopped, therefore, no case is made out against him. In support of his case, the accused respondent got examined three witnesses. The trial court after recording evidence of the parties and after hearing both the sides and after going through the entire evidence on the record and also the legal aspect of the matter by the judgment dated 16.2.2008 acquitted the accused respondent of the offence under Section 138 of the Act. Feeling aggrieved by the judgment of the trial court, the complainant appellant has filed this criminal leave to appeal. Notice was issued to the accused respondent and at the admission stage with the consent of the parties, the leave to appeal is being disposed of finally. Heard learned counsel for the parties. Learned counsel for the complainant appellant has argued that the learned trial court has committed error in acquitting the accused 4 respondent holding that the cheque was no `dishonoured' but it was returned unpaid as the accused respondent got the payment of the cheque stopped. Placing reliance on the judgment of the Apex Court in the case of Electronics Tade and Technology Development Corpn. Ltd. vs. Indian Technologists and Engineers (Electronics) (P) Ltd. {(1996) 2 SCC 739}, learned counsel for the complainant appellant has submitted that even if a cheque is dishonoured because of `stop payment' instruction to the bank, Section 138 of the Act would get attracted. Learned counsel for the accused respondent on the other hand has supported the judgment of the trial court. Having heard learned counsel for the parties I, have scanned the material and evidence available on the record of the case and also gone through the relevant provisions of the Act. About issuance of cheque and stop payment there is no dispute. The version of the accused respondent is that because the complainant appellant has taken two submersible pump sets from his shop a bill was issued in the name of the complainant bearing his signatures with the 5 averments that the cheque which was given by the respondent will be returned to the accused respondent. Though the complainant appellant has denied his signature on the said receipt but the accused respondent has specifically pleaded that two submersible pump sets were given to the complainant with this condition that the cheque issued by him will be returned back to him but when the complainant failed to return the cheque, he instructed his banker to stop payment of the cheque. As has been held by their Lordships of the Apex Court in the matter of Electronics Trade and Technology Development Corporation Ltd. (supra) “Stop payment” can attract liability under Section 138 of the Act. From the fact mentioned in the record it is borne out that the cheque was presented by the complainant after the direction for `stop payment' has been issued by the accused respondent and inspite of that the cheque was presented in the bank for collection to fasten liability on the accused respondent. The documents furnished by the accused respondent show that the complainant himself took two submersible pump sets from the shop on consideration of return of the cheque but that 6 cheque was not returned by the complainant and in such circumstances the accused respondent issued instructions to the bank to `stop payment'. If there is any transaction of landing of money and amount if due against the complainant, the accused respondent was well within his power to stop payment and in such a situation the instruction issued by the accused respondent to his bank to `stop payment' of cheque was well within the knowledge of the complainant appellant. The aforesaid being the position no case under Section 138 Cr.P.C. can be said to be made out against the accused respondent and the trial court after discussing the entire evidence available on record if has acquitted the accused respondent then it cannot be said that the trial court has committed any illegality in acquitting the accused respondent so as to call for any interference by this Court. Consequently, leave is refused and the leave to appeal is, dismissed. (Bhanwaroo Khan),J. bairwa