Appellant agreed to buy respondent house through an agreement of which advance amount was paid.
Thereafter appellant came to know that the respondent is not the owner of the house. So, appellant demanded the advance amount from the respondent. Respondent issued half of the amount through cheque but cheque got bounced. Being aggrieved appellant filed a complaint under N.I. 138 and JMFC allowed the complaint. Respondent being aggrieved went to High Court and High Court favored the respondent. Hence this appeal.
we have disapproved the manner in which the learned Single Judge has proceeded to examine the matter on contentions which were not raised as a foundation before the Trial Court.
The notice issued by the appellant intimating the dishonorment of the cheque and demanding payment, though received by the respondent has not been replied. In such situation, the first opportunity available to put forth such contention if true was not availed. Even in the proceedings before the learned JMFC, the respondent has not put forth such explanation in the statement recorded under Section 313 of CrPC nor has the respondent chosen to examine himself or any witness in this regard. The said contention had not been raised even in the appeal filed before the learned Sessions Judge.
Allowed with Compensation.
Link to the Judgment: