/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2534 OF 2007 IN CRIMINAL APPEAL NO. OF 2007 Harold M. Carvalho ...Appellant Vs. K.S. Rajput & Ors. ...Respondents --- Shri Kishor Patil for Appellant Shri Rajesh More APP for State ---- CORAM: V.M. KANADE J. DATED 8TH OCTOBER,2008 P.C. 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 / 2 / 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. 3. The Learned Counsel appearing on behalf of the Complainant submits that the Trial Court had made an enquiry in respect of the ownership rights of the Complainant over the said property. He submitted that such / 3 / an enquiry was not contemplated in the summary procedure, which has prescribed under section 138 of the said Act. He submitted that this enquiry was irrelevant for the purpose of deciding the issue whether the cheques were issued for a legally enforceable debt or liability. He submitted that the Trial Court ought to have held that an agreement was executed between the parties for the development of the said property and since the development had not been carried out, the two cheques were merely given towards compensation for non-development of the property. It was not possible to accept this submission though a presumption is raised under section 139 of the Negotiable Instruments Act, the said presumption is a rebuttable presumption. The Complainant was cross-examined at length and it has been brought on record through admissions given by the Complainant that the entire land referred to in the development agreement was acquired by the Government. In respect of the other land, suit was filed by the Complainant and it was established that the Complainant did not have any right over the said property. This fact was admitted by the Complainant in his cross examination. The Trial Court, therefore, was justified in coming to the conclusion that since the land was not belong to the Complainant, there was no occasion for the Respondents to give any compensation since development of the said land was not possible. The / 4 / Trial Court has given cogent reasons while arriving at the said findings. I do not seen any infirmity in the findings given by the Trial Court. Therefore, no prima facie case is made out for interfering with the impugned order. Leave is, therefore, refused. Appeal does not survive. V.M. KANADE J.