JUDGMENT Rohit B. Deo, J. (Oral) - Challenge is to the judgment and order dated 16.01.2009 rendered by the Judicial Magistrate First Class, Umrer in Criminal Case 709/2006, by and under which, the accused is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881 (''Act'' for short). 2. The complainant is a Civil Contractor. He entered into an agreement with the accused to construct residential house on Plot B38 at Mouza Kamptee. The complainant claimed that the accused issued cheque for Rs. 50,000/bearing number 150212 as part payment of the contractual consideration. According to the complainant, although he completed the construction as per the agreement dated 10.06.2006 the accused issued stop payment instructions and the cheque was dishonoured. The complainant issued the statutory notice, which did not evoke any response. The defence of the accused is that since the complainant did not complete the construction as per agreement Exh.42, he issued notice Exh.52 to the firm of the complainant informing that stop payment instructions were issued. According to the accused, the complainant left the work incomplete and the amount paid to the complainant was more than the amount due and payable for the incomplete work. 3. Perusal of agreement Exh.42 reveals that as per condition 4 the amount of Rs. 50,000/covered by the disputed cheque was payable after the stage of the first floor slab. The complainant placed on record copy of the agreement (Article A). The learned Magistrate noted in paragraph 7 of the judgment and order impugned that page 2 of Article A is missing in Exh.42. The learned Magistrate therefore, proceeded on the premise that Article A is the complete agreement. The learned Magistrate noted the terms and conditions of the agreement inter alia in paragraph 7 of the judgment and order impugned thus: Hence looking to the nature of the agreement at Article A which complete agreement, it is seen that as per said agreement it is stated that " I have got construction done through the on plot no. The learned Magistrate noted the terms and conditions of the agreement inter alia in paragraph 7 of the judgment and order impugned thus: Hence looking to the nature of the agreement at Article A which complete agreement, it is seen that as per said agreement it is stated that " I have got construction done through the on plot no. B38 at New Kamptee district Nagpur, from the executor - Said Plot is 25 x 52 1 /2" and out of it 850 square feet [super built] on ground floor whole construction will include complete construction, plaster, electric fitting, oils bathroom, complete glazed tiles, and in latrine three feet glazed tiles and in kitchen, Kitchen Ota about 7 feet and glazed tiles, in four rooms of ground floor. In two rooms each one almirah of 3 x 7 will be prepared. "Out of four rooms on ground floor, it is decided to fix spartek tiles in hall, which is 35/per feet and in remaining rooms it is decided to fix gray tiles. Similarly in each room it is decided to fix five points of electricity and in hall power plug and in Kitchen one power plug is decided to be fixed. On ground floor it is decided that by constructing compound wall, it will have porch finishing along with 7 x 5 of 150 kg. steel door to be fixed. On the ground floor in inner toilet bathroom. It is decided to keep points of tap fitting left open. It is decided that on ground floor to the hall one teak wood door and backside of kitchen one teak wood door, would be fixed. Similarly towards staircase tin steel door is decided to be fixed. And at remaining places flash doors are decided to be fixed." This is also decided. As per said agreement complainant had agreed to execute complete construction of ground floor and plaster, electric fitting, bathroom and in latrine glaze tiles, in kitchen ota, on ground floor in four room each one almirah was decided to be provided. Similarly it was decided that there would be five points of electricity in each room and one power plug each in hall and kitchen. Similarly it was decided that there would be five points of electricity in each room and one power plug each in hall and kitchen. It was agreed that there would be compound wall and porch finishing, in compound wall there would be 7 x 5 steel door, each one teak wood door to hall and kitchen''s backside and towards stair case one tine steel door and at remaining places flash door. 4. Photographs placed on record by the complainant himself vide Exh.53 and 54 reveal that the first floor frontal portion construction is apparently incomplete, compound wall is incomplete and doors are not affixed on the ground floor. The learned Magistrate has considered the terms and conditions of the agreement and the evidence on record holistically to come to a conclusion that the complainant has not proved the existence of legally enforceable debt or liability. The learned Magistrate has recorded a finding that the accused has discharged the burden of rebutting the statutory presumption under Section 139 of the Act. I do not see any infirmity in the findings recorded by the learned Magistrate. A possible view is taken. A bona fide dispute as regards the liability of the accused to honour the cheque is apparent on the face of evidence. Exhibit 52 is a notice issued by the accused to the complainant to complete the construction. It is apparent even from the photograph Exhibits 53 and 54 produced on record by the complainant himself that the work of construction is incomplete. In the teeth of the evidence, the fact that stop payment instructions were issued by the accused, would not per se, constitute the dishonour of cheque and the failure of the accused to make the payment demanded by the notice, an offence punishable under Section 138 of the Act. 5. On a holistic reappreciation of the evidence, no perversity either in approach or in appreciation of the evidence is noticed in the judgment impugned. 6. The appeal is sans merit and is rejected.