HAROLD M CARVALHO Vs. K S RAJPUT

JUDGEMENT

(1.) HEARD the Learned Counsel appearing on behalf of the Applicant and the learned Counsel for the Respondents. The Applicant has filed this application for leave to file appeal on account of the dismissal of his complaint by the Judicial Magistrate, First Class, Thane. By the said judgment and order dated 19.8.2006, the Learned Magistrate was pleased to dismiss the complaint filed by the Applicant herein under section 138 of the Negotiable Instruments Act.

(2.) IT is the case of the Complainant that an agreement was executed between the Complainant and the Respondent herein for development of certain property bearing survey no.160, hissa no.4 situated at Panchpakhadi and the Respondent in the said agreement dated 30th January, 1997 had agreed to give four flats to the Complainant. Since the Respondents did not hand over the said four flats as promised by him under the development agreement, it is the case of the Complainant that the two cheques were given, one dated 26th October, 2004 and other dated 28th October, 2004 of an amount of Rs.2,00,000/- each as and by way of compensation for the delay caused by the Respondent in the development of the said land. When the said cheques were dishonoured, a statutory demand notice has been issued to the Respondents. However, no reply was given by the Respondent, and, therefore, a complaint has been filed by the Applicant herein under section 138 of the Negotiable Instruments Act. The Trial Court had came to the conclusion after appreciating the evidence on record that the initial burden of establishing that the cheque were given towards legally enforceable debt or liability has not been discharged and it has further held that the Respondent by cross examining the complainant and witnesses and also rebutted the presumption under section 139, and, therefore, it came to the conclusion that no offence was made out by the Complainant under section 138 of the said Act against the Respondent herein.