RAM PRAKASH Vs. AMITOSH MOITRA

JUDGEMENT

(1.) The petitioner has filed the present petition seeking leave to appeal against the judgment passed by the learned Metropolitan Magistrate in complaint case No.627/1/09 (old No.169/1) dated 24.07.2009, whereby the trial Court has acquitted the respondent accused in respect of the offence allegedly committed by him under Section 138 of the Negotiable Instruments Act.

(2.) Briefly the factual background is that the complainant/petitioner had entered into a leave and licence agreement in respect of his industrial premises with the respondent. The rent payable under the agreement for the initial period i.e. 01.01.1999 to 31.12.2000 was Rs.70,000/- per month. From 01.01.2001 to 31.12.2001 the agreed rent was Rs.84,000/- per month. The parties, it appears, entered into a memorandum of understanding as respondent claimed to be in financial difficulty and expressed his inability to pay the enhanced rent of Rs.84,000/- per month. As per the MOU the respondent agreed to pay the rent at the existing rate of Rs.70,000/- per month. It was agreed that if the turnover of the respondent exceed Rs.2 Crores in the calendar year 2001 the enhanced licence fee as per the agreement would be paid w.e.f. 01.01.2001.

(3.) I may note that according to the petitioner the enhanced rent of Rs.84,000/- was agreed to be paid by the respondent if the turnover of the respondent exceeded Rs.1 Crore and not Rs.2 Crores. He submits that in the document/MOU dated 27.12.2000 executed between the parties the figure of Rs.1 Crore had been manipulated by the respondent to Rs.2 Crores. This controversy is not relevant for the purposes of the present petition. It appears that for the months of September and October, 2001 the cheques towards payment of rent (after deduction of tax at source) were dishonoured upon presentation. The petitioner preferred a civil suit under Order 37 CPC and in those proceedings, admittedly, the petitioner has realized the rent for the months of September and October, 2001. It is also the admitted position that the respondent after delivering a notice for vacation has, in fact, vacated the premises in the beginning of November, 2001. According to the petitioner the premises was vacated on 06.11.2001, whereas according to the respondent the said premises was vacated on 03.11.2001. It is also the admitted position that the petitioner did not refund the security deposit of over Rs.3 lakhs held by him to the respondent on the ground that the same was adjusted against outstanding dues of the respondent.