The dishonoured cheque must constitute a legally enforceable debt under Section 138 of the Negotiable Instruments Act for a conviction.

SURESHWAR THAKUR, J.

1. The instant appeal is directed by the complainant/appellant, against, the order of acquittal recorded by the learned Judicial Magistrate 1st Class (I), Palampur, District Kangra, H.P., upon, Crl. Complaint No.97-III/2008.

2. The facts relevant to decide the instant case, are that the complaint has been filed by the complainant through his Special Power of attorney. It is averred that accused entered into an agreement to purchase land from the complainant, situated in Mohan Chowki, Tehsil Palampur, and, the complainant executed, Sale deed of 22 Kanals and 10 Marlas of land being General Power of Attorney of owners and paid the sale consideration through cheque No. 230743 of 3.5.2007 drawn at Dena Bank, Lodhi Road, New Delhi, for a sum of Rs.15,80,000/-. It is further averred that when the aforesaid cheque was presented in the bank, i.e. Punjab National Bank, Palampur on 29.5.2007, for collection, the said cheque was sent by the aforesaid bank to the banker of the accused, but the accused intentionally stopped the payment, and, telephonically informed the complainant that he is in short of money and requested the complainant not to present the cheque in the bank, but at that time, the cheque had already been presented in the bank and the same was returned with memo with the remarks “payment is stopped by the drawer”. It is further averred that after waiting for some time, when the accused did not pay the aforesaid amount, despite repeated requests, the complainant, again presented the aforesaid cheque in his bank, i.e. Punjab National Bank, on 16.8.2007, but again the said cheque was returned with memo by the banker of accused with remarks “payment stopped” by the drawer and the same was received by the complainant on 25.8.2007 from his banker. It is further averred that thereafter accused was requested through notice dated 17.9.2007, but he accused in connivance with the postal Department has refused to receive the registered A/D and ultimately the said notice was received un-served on 28.9.2007. It is further averred that despite repeated requests of the complainant, as the accused has not paid the cheque amount to the complainant, hence, the present complainant.

3. After presentation of the complaint, the complainant's preliminary evidence was recorded, and, upon, a prima facie case hence being found, against, the accused, he/it was hence summoned. On his/its appearance before the learned trial Court, a notice of accusation, was, put to the accused by the learned trial Court, for his/its committing an offence punishable under Section 138 of the Negotiable Instruments Act. In proof of his case, the complainant examined 1 witness. On conclusion of recording, of, the complainant's evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication, besides it examined one witness in its defence.

4. On an appraisal, of, the evidence on record, the learned trial Court, returned findings of acquittal qua the accused/respondent herein.

5. The complainant, stands, aggrieved by the judgment of acquittal recorded qua the accused/respondent. He, has concertedly, and, vigorously contended qua the findings of acquittal recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the material on record. Hence, he contends qua the findings of acquittal, warranting reversal, by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of conviction.

6. On the other hand, the learned counsel appearing for the accused/respondent herein, has with considerable force and vigour, also contended qua the findings of acquittal recorded by the learned trial Court rather standing based on a mature and balanced appreciation, by it, of the evid