Liability under Section 138 of the Negotiable Instruments Act can be attracted by a 'stop payment' instruction if the cheque is presented despite the instruction and there is a valid reason for stopping the payment.

1. - 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 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.

2. The trial court took cognizance of the offence and summoned the accused respondent, who appeared before the trial court and pleaded not guilty.

3. 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 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.

4. 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.

5. Feeling aggrieved by the judgment of the trial court, the complainant appellant has filed this criminal leave to appeal.

6. 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.

7. Heard learned Counsel for the parties.

8. Learned Counsel for the complainant appellant has argued that the learned trial court has committed error in acquitting the accused 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 Corporation Ltd. v. Indian Technologists and Engineers (Electronics) (P) Ltd., 1996 Cri LJ 1692 : (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.

9. Learned Counsel for the accused respondent on the other hand has supported the judgment of the trial court.

10. 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.

11. 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 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 issu