Judgment :- These batch of Appeals arise out of order of acquittal acquitting the Respondent / accused under Sec.138 of Negotiable Instruments Act by the Sub Divisional Judicial Magistrate at Yanam by separate judgments dated 18.07.1996. 2. The Complainant / M/s.Regency Ceramics Limited, Yanam and the accused are one and the same in all the Appeals. Since common points for determination arise in all the Appeals, common arguments were heard in all the Appeals and these Appeals are disposed of by this Common Judgment. 3. The particulars of these Appeals could be stated thus:- Criminal Appeal Number 1 S.T.C. Number 2 Cheque Number and Date 3 Amount for which the cheque was issued 4 C.A.180/1997 S.T.R.235/1995 TA 145672 93 dt.30.03.1995 Rs.25,000/=. C.A.181/1997 S.T.R.265/1995 TA 145673 93 dt.25.04.1995 Rs.25,000/= 1 2 3 4 C.A.182/1997 S.T.R.266/1995 TA 145674 93 dt.30.04.1995 Rs.25,000/= C.A.183/1997 S.T.R.267/1995 TA 146105 93 dt.25.05.1995 Rs.25,000/= C.A.184/1997 S.T.R.268/1995 TA 146106 93 dt.30.05.1995 Rs.25,000/= C.A.185/1997 S.T.R.271/1995 TA 146108 93 dt.30.06.1995 Rs.25,000/= C.A.186/1997 S.T.R.272/1995 TA 146107 93 dt.25.06.1995 Rs.25,000/= 4. These Appeals arise on the following facts: The Complainant M/s.Regency Ceramics Limited, Yanam is a registered Company and is having its factory at Yanam. It manufactures and deals in glazed wall and floor tiles. The accused is the Proprietor of M/s.N.N.Enterprises, Rajahmundry and he is a dealer for glazed wall and floor tiles of the Complainant Company. P.W.1 - the Accounts Officer is authorised vide Ex.P-1 to launch prosecution against the accused onbehalf of the Complainant Company. 5. The accused used to purchase the ceramic wall and floor tiles from the Complainant Company from time to time on credit basis and he is having a running account in the Complainant's company. The accused is said to be owing a sum of Rs.5,80,746-35 to the Complainant's company as per Ex.P-2 Statement of Accounts as on 30.03.1995. Towards part payment of the amount due to the Complainant, the accused gave post-dated cheques dated 30.03.1995, 25.04.1995, 30.4.1995, 25.05.1995, 30.05.1995, 30.06.1995 and 25.06.1995 for Rs.25,000/= each in favour of the Complainant drawn on Karnataka Bank, Rajahmundry. The Complainant presented Cheques on the respective dates through its Banker - State Bank of India for encashment. The cheques were bounced and returned to the Complainant due to insufficiency of funds in the account of the accused. The Complainant presented Cheques on the respective dates through its Banker - State Bank of India for encashment. The cheques were bounced and returned to the Complainant due to insufficiency of funds in the account of the accused. According to the Complainant, since the accused is not having sufficient amount to honour the cheques, he gave a direction to his Banker viz., Karnataka Bank Limited, Rajahmundry to stop the payment on his account in order to avoid the consequences under the Negotiable Instruments Act. Hence the accused banker issued Memos under the head "payment stopped by the drawer". The Complainant's banker i.e., State Bank of India, Yanam returned the cheques along with Memos (Ex.P-5 - dt.20.04.1995) to the Complainant. 6. Thereupon the Complainant issued Notice - Ex.P-6 to the accused under registered post requesting the accused to pay the amount covered under cheques within 15 days from the receipt of the notice. Though the accused received the Notice, he did not pay the amount covered under cheques, but he got issued a false and litigious reply - Ex.P-8 to the Complainant. 7. In the Complaint, it is alleged that the accused gave cheques to the Complainant knowing fully well that there are no sufficient funds to his credit with his Banker. The accused also represented to the Complainant that he has got sufficient funds with the Bank and induced the Complainant to part with the stock of glazed wall and floor tiles, from time to time. The accused did not pay the amount after issue of the legal notice - Ex.P-6. In fact, the accused is not having sufficient funds with the bank when the cheques were issued or at the time of presentation for encashment. 8. During trial, the accused had admitted having issued the post-dated cheques to the Complainant. The accused did not pay the amount after issue of the legal notice - Ex.P-6. In fact, the accused is not having sufficient funds with the bank when the cheques were issued or at the time of presentation for encashment. 8. During trial, the accused had admitted having issued the post-dated cheques to the Complainant. Before the trial court, during the trial, the accused raised the following defence; (i) that the cheques were returned to the drawee not because of insufficiency of funds, but because the payment had been stopped by the drawer under instructions of the account holder namely, the accused and therefore, endorsement of "stop payment" would not come under the purview of Sec.138 of Negotiable Instruments Act and no offence is made out against the accused; (ii) the complaint filed by Complainant's Accounts Officer that is Edara Chandrasekar (P.W.1), who is neither the payee nor the holder in due course of the cheque in question and the complaint filed by him is not maintainable; (iii) that there is dispute as to the amount payable to the Complainant and hence there is no legally enforceable debt by the Respondent / accused. 9. To substantiate the averments in the complaint, onbehalf of the Complainant, P.Ws.1 to 3 were examined. Exs.P-1 to P-8 were marked. No oral evidence was adduced onbehalf of the accused. Exs.D-1 and D-2 were marked. Upon consideration of the evidence and rival contentions of both parties, the trial court found that the complaints filed by the Accounts Officer - P.W.1 Edara Chandrasekar are not maintainable. The trial court acquitted the Respondent / accused interalia on the following findings; (1) In the facts and circumstances of the case, the endorsement of "stop payment" issued by the drawer would not fall under the purview of Sec.138 of Negotiable Instruments Act and no offence is made out; (2) by various correspondence, the Respondent / accused has already raised the dispute on the amount payable on the running account between the Complainant and the accused and the cheques were not issued towards legally enforceable debt; (3) that the Complainant's witnesses have given contradictory statement as to the issuance of the cheques. On the above findings and mainly relying upon Ex.D.2 - Solvency Certificate and evidence of P.W.3 - Branch Manager of Karnataka Bank Ltd., Rajahmundry, the trial court found that the Respondent had sufficiency of funds and that no dishonest intention could be attributed to the Respondent / accused and that the offence would not fall under Sec.138 of Negotiable Instruments Act. 10. Assailing the findings and the reasonings of the trial court, the learned counsel for the Appellant / Complainant contended that by the conduct of the accused in issuing the 'stop payment' and non payment of the cheque amount within 15 days from the date of receipt of the notice, the trial court ought to have drawn inference of dishonest intention against the Respondent / accused. It is further contended that though the cheques are post-dated, they were issued towards legally enforceable debt and that the trial court erred in finding that those cheques were not issued for discharge of legally enforceable debt. Relying upon AIR 2004 SC 408, the learned counsel further contended that in the absence of examination of Bank Manager and other relevant materials to prove that the accused had sufficient amount, the trial court committed a serious error in holding that the endorsement of "stop payment" would not fall within the meaning of Sec.138 of Negotiable Instruments Act. Assailing the other findings the learned counsel for the Appellant urged for reversal of order of acquittal. 11. Countering the arguments and referring to the materials on record, the learned counsel for the Respondent / accused submitted that on the date of presentation of the cheques on the respective dates, the accused is proved to be solvent to the tune of Rs.18 lakhs and when the Respondent / accused had over-draft facility, no dishonest intention could be inferred against the accused. Laying emphasis upon the evidence of P.W.3 and Ex.D-1, it is contended that "stop payment" was issued only because there was serious dispute regarding settling of account and the amount payable. Relying upon AIR 2002 SC 182 , the learned counsel for the Respondent / accused further submitted that when the amount payable is very much disputed, the trial court rightly found that there is no legally enforceable debt and the findings of the trial court for acquitting the accused do not suffer from any substantial error, warranting interference in these Appeals against acquittal. 12. 12. Upon reassessment of the evidence and materials on record, impugned judgments and the reasonings for acquittal and submissions of both sides, the following common points arise for consideration in these Appeals: (1) Whether issuance of "stop payment" instructions is proved to be due to other valid causes and due to differences in the amount payable ? (2) Whether the Respondent / accused is proved to have sufficient amount in his account in the Karnataka Bank, Rajamundhiri when the cheques were presented for collection ? In that facts and circumstances of the case, whether the trial court is not correct in finding that the endorsement of "stop payment" would not fall within the purview of Sec.138 of Negotiable Instruments Act ? (3) In the light of contention raised by the Respondent / accused "amount being in dispute", was not the trial court right in finding that there is no legally enforceable debt ? 13. Even at the outset, it is to be pointed out that these Appeals arise out of the order of acquittal. In Appeals against the order of acquittal, High Court would be slow to interfere. This Court would not interfere in the order of acquittal unless there are glaring infirmities in the judgment of the trial court resulting in miscarriage of justice. The mere fact that the Appellate Court would arrive at a decision other than the one taken by the trial court would not be a valid and sufficient ground to interfere with an order of acquittal. While dealing with the Appeals arising out of acquittal, this Court is to find whether the reasonings of the trial court are manifestly erroneous and unsustainable. It is to be seen, whether the findings of the trial court in acquitting the accused suffer from serious and substantial error warranting interference. 14. We may firstly consider the correctness of the findings of the trial court that there is no legally enforceable debt. Strict liability under Sec.138 of Negotiable Instruments Act (hereinafter referred to as 'N.I.Act') can be enforced only when the cheque is issued in discharge of any legally enforceable debt or other liability, partly or wholly. Explanation to Sec.138 of the N.I.Act provides that a debt or liability under this section means only a legally enforceable debt or other liability. Strict liability under Sec.138 of Negotiable Instruments Act (hereinafter referred to as 'N.I.Act') can be enforced only when the cheque is issued in discharge of any legally enforceable debt or other liability, partly or wholly. Explanation to Sec.138 of the N.I.Act provides that a debt or liability under this section means only a legally enforceable debt or other liability. To attract the penal provisions under Sec.138 of N.I.Act, a cheque must have been drawn by the accused on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part, of any debt or other liability due. That means, the cheque must have been issued in discharge of a debt or other liability wholly or in part. 15. While there may be a debt payable in existence, that alone is not sufficient to prove that the cheque was drawn in discharge of the debt. If the accused substantially proves that there is dispute on the amount payable and that there is no debt in particular, the accused cannot be held liable. 16. The defence raised by the Respondent / accused that there is no legally enforceable debt is to be considered in the facts and circumstances of the case. For the purpose of Sec.138 of N.I.Act, the word is qualified by the expression "debt payable" and not the amount ascertainable and payable in future. The Complainant is the manufacturer and deals glazed wall and floor tiles. The accused is the Proprietor of M/s.N.N.Enterprises situated near RTC Complex, Rajahmundry and he is a dealer for glazed wall and floor tiles of the Complainant Company. 17. Case of the Complainant is that the accused used to purchase the ceramic wall and floor tiles from the Complainant from time to time on credit basis and he is having running account in the Complainant company. The accused is said to be owing a sum of Rs.5,80,746-35 to the Complainant Company as per the accounts as on 30.03.1995. Towards part payment of the amount due to the Complainant, the accused gave the cheques. Thus towards the total amount of Rs.5,80,746-35, accused is said to have issued post dated cheques towards part payment of the cheques. The accused is said to be owing a sum of Rs.5,80,746-35 to the Complainant Company as per the accounts as on 30.03.1995. Towards part payment of the amount due to the Complainant, the accused gave the cheques. Thus towards the total amount of Rs.5,80,746-35, accused is said to have issued post dated cheques towards part payment of the cheques. Issuance of cheques towards part payment of the amount itself shows that the amount of Rs.5,80,746-35 is not the amount ascertained and settled between the parties. Along with the Complaint, the Complainant has filed Ex.P.2 - Statement of running accounts maintained by the Complainant. Even in Ex.P.2 - certain amounts are said to be in dispute and other amounts are stated to be pending for necessary approvals. The relevant entries in Ex.P-2:- Though the above disputed amount is deducted in the running account, the fact remains that there had been dispute on ascertaining the correct amount and the amount payable by the Respondent / accused. It is to be noted that the cheques issued are post dated cheques, which were issued by the Respondent / accused during the maintenance of running account. The learned counsel for the Respondent / accused has made submissions on the interse dispute between the parties and in the accounts and the amounts payable. Without going deep into those controversy on accounts, suffice it to point out that there are serious disputes between the parties on the amount payable. 18. For Ex.P-6 legal notice, accused had issued Ex.P.8 reply notice. In Ex.P-8 reply, the accused had clearly denied his liability of Rs.5,80,746-35. According to the Respondent / accused, the post dated cheques were issued by him in the month of October 1994 at the insistence of Managing Director of Complainant's Company. Further contention of the accused is that the post dated cheques were issued only for the purpose of future business transaction and not towards legally enforceable debt. When the goods were supplied to the accused and the parties were having business transaction, there is every possibility of the cheques being issued as a collateral safeguard for the purpose of future business transaction. 19. Of course under Sec.139 of N.I.Act, there is a presumption that unless the contrary is proved, the holder of a cheque received the cheque for the discharge, in whole or in part, or any debt or other liability. 19. Of course under Sec.139 of N.I.Act, there is a presumption that unless the contrary is proved, the holder of a cheque received the cheque for the discharge, in whole or in part, or any debt or other liability. But this presumption is only rebuttable either on the facts and circumstances of the case or by independent evidence. It is for the accused to rebut the presumption so raised. In the facts and circumstances of the case, it is to be seen whether the presumption raised under Sec.139 of the N.I.Act is rebutted. 20. When the accused had raised the dispute on the amount payable, it cannot be said that the cheque is relatable to an enforceable liability. Even in Ex.D-1, the accused had requested his banker - Karnataka Bank, Rajahmundry to stop payment and stating as "Kindly stop the payment above cheques if they are present since there are some disputes regarding settlement of accounts". In that circumstance, the finding of the trial court that there had been no legally enforceable debt does not suffer from any infirmity or serious error. 21. The finding of the trial court that "stop payment" issued by the accused would not fall within the purview of Sec.138 of the N.I.Act and that no offence is made out is seriously assailed by the Complainant. Learned counsel for the Appellant / Complainant contended that the instructions issued by the accused to stop payment and non-payment of the amount within 15 days from the date of receipt of the notice, the trial court ought to have inferred dishonest intention and erred in finding that the act would not fall within the purview of Sec.138 of N.I.Act. In support of the contention, the learned counsel for the Complainant has relied upon Goa Plast (P) Ltd. ..vs.. Chico Ursula D'Souza (AIR 2004 SC 408) and contended that in the absence of examination of Bank Manager and production of statement of accounts of the accused showing insufficiency of funds, the trial court committed a serious mistake in finding that endorsement of "stop payment" would not fall within the meaning of Sec.138 of N.I.Act. 22. The merits of this contention is to be considered in the facts and circumstances of the case. 22. The merits of this contention is to be considered in the facts and circumstances of the case. For appreciation of the arguments advanced on this aspect, certain dates are relevant to be noted (in C.A.No.180/1997); Thus the Respondent / accused issued Ex.D-1 dated "24.02.1995" to his banker requesting to stop payment on the ground that there are some disputes regarding the settlement of the accounts. 23. To establish insufficiency of funds, onbehalf of the Complainant - P.W.3 - Manager of the accused Banker - Karnataka Bank Limited, Rajahmundry was examined. P.W.3 has stated that the accused is having account in bank with the facility of availing over-draft to the tune of Rs.2 lakhs during the year 1994. In his cross examination, P.W.3 has stated that on 24.02.1995, prior to the receipt of the cheques for encashment, the accused sent Ex.D.1 - letter to stop payment and hence, all the ten cheques were not honoured. Further, P.W.3 has stated that on the date of presentation of the cheques for encashment, the accused was solvent to the tune of Rs.18 lakhs from November 1995. To that effect, Karnataka Bank Limited, Rajamundry had issued Ex.D.2 - Solvency Certificate to the Complainant's Banker. 24. The trial court has carefully scrutinised the evidence of P.W.3 and Exs.D-1 and D-2 and found that the accused was solvent during the time of presentation of cheques. In its view, the cheques were dishonoured only on account of 'stop payment' instructions given by the accused and that no dishonest intention could be attributed to the accused. From the evidence of P.W.3, it is clear that the Respondent / accused had over draft facility to the tune of Rs.2 lakhs. In that view of the matter, the trial court was right in finding that had there been no instructions, accused banker - Karnataka Bank Limited, Rajamundry would have surely honoured the cheques. This finding is in conformity with the materials on record and does not suffer from any misappreciation of evidence. 25. One of the basic ingredients of the offence under Sec.138 of the N.I.Act is that, the cheque must have been returned unpaid, either for want of funds or for exceeding the over-draft arrangement. This finding is in conformity with the materials on record and does not suffer from any misappreciation of evidence. 25. One of the basic ingredients of the offence under Sec.138 of the N.I.Act is that, the cheque must have been returned unpaid, either for want of funds or for exceeding the over-draft arrangement. The question as to whether the cheque was returned unpaid for either of the above reasons, is a question of fact, which the prosecution has to prove in the same way in which, any other fact is required to be proved in a criminal prosecution. This fact could be proved by summoning the Bank records, as also the bank officials connected with the records. 26. Thus even though the return of the cheque is on account of endorsement of "stop payment", it is still open to the Complainant to establish that the cheques were returned only for want of funds or inadequate arrangement. Though onbehalf of the Complainant P.W.3 was examined, the Complainant could not specifically establish that there was insufficiency of funds in the account of the accused when the cheques were presented for collection. Nothing prevented the Complainant to call for the Statement of accounts of the accused and necessary bank records to show that there was insufficiency of funds. But the Complainant seems to have remained content merely by examining P.W.3, whose oral evidence is of no help to the Complainant. 27. As discussed earlier, oral evidence of P.W.3 - Banker of the accused is completely shattered during the cross examination by eliciting the answers on two aspects - (i) that the accused is having over-draft facility to the tune of Rs.2 lakhs; (ii) issuance of certificate by the Banker of the accused that the accused is solvent to the tune of Rs.18 lakhs; Considering the facts and circumstances, no dishonest intention could be attributed to the Respondent / accused nor insufficiency of funds could be inferred. The finding of the trial court that the endorsement of stop payment would not come under the purview of Sec.138 of N.I.Act and no offence is made out against the accused does not suffer from any erroneous approach or perversity. 28. The decision AIR 2004 SC 408 relied upon by the Appellant / Complainant is easily distinguishable on facts. In the said case, before the Apex Court, there was admission of liability. 28. The decision AIR 2004 SC 408 relied upon by the Appellant / Complainant is easily distinguishable on facts. In the said case, before the Apex Court, there was admission of liability. Secondly, no material was placed before the Court showing that the accused was solvent on the date of presentation of the cheques. In the instant case before us, through P.W.3 - Bank Manager, the solvency of the accused is clearly brought out. In that view of the matter, the above decision cannot be applied to the case in hand. 29. These Appeals arise out of order of acquittal. There are no glaring infirmities. The reasonings for acquittal do not suffer from any serious and substantial error warranting interference. These Appeals have no merits and are bound to fail. 30. C.A.180 to 186 of 1997: For the reasons stated above, all the Appeals are dismissed.