J.P. Singh, J. —Appellant Madan Lal Sawhney’s complaint against Satpal Gupta/ respondent accusing him of having committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881, wherein he had accused him of having stopped payment of three cheques which he had issued to the appellant for the amount he had borrowed from him, as a result whereof the Jammu and Kashmir Bank Lakhdata Bazar, Jammu had returned the cheques to him unpaid, was dismissed by Judicial Magistrate 1st Class (Sub-Judge), Jammu vide his order of November 24, 2003.

2. Aggrieved by the dismissal of his complaint resulting in respondent’s acquittal, the appellant has preferred this appeal after obtaining Special Leave under Section 417 of the Criminal Procedure Code 1989.

3. Appearing for the appellant, Mr. V.R. Wazir submitted that the learned Magistrate had committed error in appreciating the appellant’s evidence and relying heavily on the respondent’s evidence. Appellant’s evidence on the records was sufficient enough to entail respondent’s conviction under Section 138 of the Negotiable Instruments Act, 1881, says the learned counsel.

4. Per contra, Mrs. Rozina Afzal submitted that respondent’s acquittal may not warrant interference in view of the law laid down by Hon’ble Supreme Court of India in Bihari Nath Goswami v. Shiv Kumar Singh and Ors.1

5. Referring to the evidence which the respondent had led in the trial court to support his plea that three cheques which had been issued by him to the appellant in lieu of the paddy, which the later had to supply to him and payment whereof had been stopped in view of respondent’s returning the paddy to the appellant on finding that the same was sub-standard, learned counsel urges that respondent had successfully proved his defence and in the absence of any evidence to the contrary led by the appellant complainant, the well reasoned acquittal order recorded by learned Judicial Magistrate would not warrant interference.

6. I have considered the submissions of learned counsel for the parties and gone through the records.

7. The evidence produced by the respondent before the trial Court indicates that he had justified his act of stopping payment of three cheques which had been issued by him to the appellant when the paddy, in lieu whereof he had issued undated cheques, had been returned to the appellant on its being found sub-standard. As against respondent’s evidence, the appellant had failed to prove by leading any evidence that the cheques issued by the respondent to the appellant had been so issued for the discharge, in whole or in part, of any debt or other liability of the respondent particularly when he had known about the respondent’s defence which he had taken right from the very beginning.

8. While appreciating the evidence led by the parties and dealing with it in view of the law laid down in various judgments of Hon’ble Supreme Court of India, as mentioned in the order, learned Magistrate had held as follows:

“Here in the present case, it appears that the accused has not played hide and seek in passing of direction to the banker for stoppage of payment to the complainant Madan Lal Sawhney. He by writing a letter to the Chief General Manager J&K Bank Lakhdata Bazar, Jammu got stopped the payment of cheques to the complainant. He has specifically referred the number and amount of the cheques along with the dates. It appears that the complainant made an attempt to encash the cheques and accused however instructed for stoppage of the same. It is nothing on record which can suggest that as to why the complainant has not presented the cheques for their encashment earlier. Averments in the complaint or otherwise evidence available on record, no-where suggest the reasons for non-presentation of the cheques earlier to the date, they were presented in the bank. Simultaneously, it appears the cheques were presented by the complainant and application was made by the accused for getting