( 1 ) THIS is an appeal under section 378 (4) of the Criminal Procedure Code, at the instance of the original complainant, who challenges the judgement and order of acquittal passed by the learned Magistrate, Court No. 9, Ahmedabad, in Criminal Case No. 677/92, whereby the second respondent herein was acquitted in respect of the offence under section 138 of the Negotiable Instruments Act.

( 2 ) THE principles laid down by the Supreme Court as regards the proper approach and perspective in relation to appeals against acquittals are by now well settled and do not require a detailed discussion. Suffice it to say that the appellate courts are under an obligation not to allow such appeals lightly or on a casual basis, unless the findings recorded on the basis of the evidence on record are grossly unjust, patently unsustainable or based on no evidence at all. On the facts of the present case I find that such is not the case.

( 3 ) THE facts which are not in dispute and/or indisputable are as under:3. 1 the accused had issued a cheque in favour of the complainant dated 15th March 1991 for Rs. 2 lacs (Exh. 16), representing part of the purchase price of three shops, purchased by the accused from the complainant, who was a builder and developer of the shops in question. Thereafter i. e. after the cheque was issued bearing the date 15th March 1991, certain events transpired which will be discussed hereinafter, whereby the very same cheque was altered by the drawer so as to change the date from 15th March 1991 to 15th September 1991. The only significance of this aspect of the matter is that certain events between 15th March and 15th September 1991 had occurred and the intervening developments led the parties to alter the due date on the cheque from 15th March to 15th September 1991. 3. 2 the complainant presented the said cheque by paying the same into his bank account on 1st November 1991. Since the drawer had issued the cheque from his own account held in the same bank and same branch as the drawee, the bank of the drawee returned the cheque to the drawee with the endorsement "stop payment directions issued" by a return memo (Exh. 10) on the same day. 3. 3 the complainant, therefore, issued a notice to the accused-drawer of the cheque under section 138 of the Negotiable Instruments Act (Exh. 16), which appears to have been received by the drawer-accused on 2nd November 1991. The accused replied to the said notice of the complainant by reply dated 21st November 1991 (Exh. 21 ). Obviously, since the notice under section 138 was not complied with by the accused, the complainant filed a complaint before the Criminal Court on 26th November 1991 (Exh. 1 ). 3. 4 the Court then directed an investigation by the concerned police officer, Navrangpura Police Station, Ahmedabad, under section 202 of the Criminal procedure Code and on receiving the report, directed the complaint to be numbered as Criminal Case and issued process thereon, being numbered as Criminal Case No. 677/92. After recording the evidence in the said case the learned Magistrate delivered the impugned judgement and order of acquittal under section 255 of the Criminal Procedure Code. Hence the present appeal.

( 4 ) LEARNED counsel for the appellant-complainant has cited a number of decisions, all of which are not relevant for the purpose of the controversy at hand. He has sought to rely upon a decision in the case of M/s Modi Cements Ltd. Vs. Kuchil Kumar Nandi, reported at AIR 1998 SC 1057, wherein the Supreme Court has observed to the effect that where a cheque is issued by a drawer and the drawer then gives notice to the drawee or to the bank for stoppage of payment, the same would not preclude an action under section 138 by the drawee. This decision is clearly and specifically based upon a presumption under section 139 in favour of the holder, and clarifies the implications of such situation by holding that merely because the drawer issues a notice to the drawe