MP 1 APPLN3011_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3011 OF 2010 M/s. Thakkar and Associates through partner Prashant Kantilal Thakkar ... Applicant Versus Umesh Ramjeet Sahani and another ... Respondents Mr. Nilesh Wable, Advocate i/b. Mr. Umesh R. Mankapure, for the Applicant. Mr. Nagesh Y. Chavan, Advocate for the Respondent No.1. Mr. Y. S. Shinde, APP for the Respondent No.2. CORAM : J. H. BHATIA, J. DATE : 14TH OCTOBER 2011 P. C. : Heard. The original complainants, who are the builders, seek leave to prefer appeal against acquittal for the offence under Section 138 of the Negotiable Instruments Act. 2. Admittedly, the accused-respondent had entered into an agreement with the complainant through its partners to purchase a flat in the building under construction for a consideration of Rs. 6,00,000/-. The agreement was executed and registered on 13.05.2008. Out of the consideration amount, the amount of Rs. 4,61,000/- was actually paid by the accused and received by the complainant. For the payment of balance amount, four cheques were issued. The possession was to be given on a receipt of the balance amount. The cheques, on presentation, were dishonoured on the ground that the payment was stopped. In spite of the notice, the payment was not made by the accused. According to the accused, the flat was not ready in all respects. The area of the flat was lesser than the agreed area. The accused had also filed a complaint before the District Consumer Forum against the complainant. Taking into consideration all these facts and circumstances, the Trial Court dismissed the complaint and acquitted the accused. MP 2 APPLN3011_10 3. From the facts noted above, it appears that the complainant himself had prima facie failed to comply with the terms of the contract and as he was not in a position to give possession of the flat as per the terms of the agreement, the accused was required to stop the payment. In fact, the accused had already paid amount of Rs. 4,61,000/- which is lying with the complainant and still he is unable to fulfill the contract. In these circumstances, I do not find any substance in the appeal. 4. Therefore, leave to prefer appeal is refused. Application stands rejected. (J. H. BHATIA, J)