JUDGMENT :

Manjari Nehru Kaul, J.

1. This appeal arises out of the judgement dated 21.01.2009 passed by the Court of learned Judicial Magistrate 1st Class, Dhuri, whereby the complaint filed by the appellant under 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as, 'the Act') was dismissed and the accused, Gurdeep Kaur, was acquitted of the charge.

2. The case of the complainant, as set up before the learned trial Court, was that the accused issued a cheque bearing No.002874 dated 07.06.2005, drawn on UTI Bank, Ludhiana, for a sum of Rs. 5,00,000/- in discharge of a legally enforceable debt. The cheque, when presented through her banker, State Bank of India, Dhuri Branch, was returned unpaid with the memo dated 28.06.2005 indicating 'payment stopped by drawer' as the reason for dishonour.

3. A legal notice of demand was then issued by the complainant to the accused on 23.07.2005. Despite service of notice, the accused failed to make the payment within the statutory period, leading to the filing of a complaint under Section 138 of the Act.

4. In support of the complaint, the complainant examined CW-1, Ramesh Kumar Goel, Deputy Manager, SBI; CW-2 Jagjit Singh, Manager, Axis Bank (formerly UTI Bank); and himself as CW-3. After completion of the complainant's evidence, the statement of the accused was recorded under Section 313 Cr.P.C.

5. The accused, in her defense denied any liability towards the complainant. It was her case that an agreement to sell had been executed on 17.11.2004 between the father of the complainant and the accused, along with her son Sarabjit Singh, for the sale of agricultural land. The complainant failed to get the sale deed registered, despite possession having been handed over. As a result, a compromise was entered into on 06.06.2005, whereunder she agreed to pay double the earnest amount i.e. Rs. 20,00,000/-.

6. The accused claimed that pursuant to this compromise, she paid Rs. 6,00,000/- in cash and issued 3 cheques bearing Nos.002872, 002874, amounting to Rs. 14,00,000/-, including cheque No.002874 for Rs. 5,00,000/- in the name of the complainant. However, it was contended that the complainant refused to accept the cheques, whereupon the accused withdrew Rs. 15,00,000/- in cash from her account on 06.06.2005, and paid it to the complainant, who thereafter absconded with both the cash and the cheques.

7. In support, the accused examined DW-1 Amardeep Singh (Property Consultant), DW-2 Navdeep Gupta (Handwriting Expert) and DW-3 Sushil Kumar Singla, the complainant's alleged Business Partner in whose name two other cheques were issued. DW-3 Sushil Kumar Singla testified that he was not owed any money by the accused and that the cheques issued in his name were at the instance of the complainant.

8. The trial Court, after an elaborate evaluation of the evidence, acquitted the accused on multiple grounds.

9. It found that although the cheque was drawn from an account ostensibly in the name of the accused, CW-2 Jagjit Singh, Manager of Axis Bank, revealed during cross-examination that the account was jointly held with one Baldev Raj. Significantly, it was Baldev Raj who issued the 'stop payment' instruction on 09.06.2005, and not the accused herself. The trial Court rightly noted that only the drawer of a cheque may legally issue a 'stop payment' instruction. Thus, the dishonour cannot be attributed to an act of the accused herself, as required under Section 138 of the Act.

10. The Court also observed that the complainant had not summoned any documentary proof to clarify the nature of the bank account, whether it was solely in the name of the accused or jointly held. This unexplained factual lacune was material in the context of the legal requirement that the dishonour be due to the act of the drawer or insufficient funds.

11. The trial Court also found that on the date of dishonour i.e. 28.06.2005, the bank account held a balance of ' 28,75,697/-, thus ruling out insufficiency of funds. The cheque