HIREIN SHARMA Vs. JYOTI RAJPUT

JUDGEMENT

(1.) UNSUCCESSFUL complainant in case relating to offence punishable u/s 138 of Negotiable Instruments Act, 1881 (in short NI Act) is the appellant herein. He filed CC No. 482/2010 before Chief Metropolitan Magistrate against the accused alleging offence under Section 138 of the NI Act on the ground that he and his mother had inducted the accused/respondent No.1, director of Respondent 2 company as a tenant in about 1000 ft. area on the third floor of premises in Vikas Tower, Plot No.6, Sector -8, Rohini w.e.f. 1st October 2005 by a registered rent agreement. As per the rent agreement, the total rent of the premises was Rs.32,000/ - per month which included a sum of Rs.10,000/ - p.m. towards the furniture and fixture let out by the complainant. Additionally, Respondent had given Rs.1,50,000/ - as security deposit to the appellant which was refundable after the vacation of the tenanted premises. A second agreement was made in 2005 -2006 between the parties wherein an additional area of 2000 sq.ft. was given to the respondent for tenancy purposes and the rent was increased to Rs.60,000/ - p.m., payable after deduction of tax at source. The rent for the usage of furniture and fixtures of Rs.10,000/ - was exclusive of the rent amount. However, in the month of April 2007, due to unnecessary closeness of respondent no.1 with the cousin of the appellant namely Amit Gupta, the mother of the appellant asked respondent no.1 either to refrain from the uncalled proximity with Amit Gupta or vacate the premises. Respondent no.1 declared to vacate the said premises on 1.07.2007. However, when the complainant went to collect the keys of the premises, respondent sought one more month's time to vacate the premises. Since the appellant and his mother had already decided to induct a new tenant at the said premises at an enhanced rate from 1st July 2007, respondent No.1 gave a cheque of Rs.42,500/ - to compensate the damages of the loss of rent/difference in the lease rent. The said cheque No. 000215 amounting to Rs.42,500/ - drawn on Bank of India, Sector 8 of Rohini was deposited by the complainant in his bank for encashment on 8.08.2007 which was returned dishonoured by the bank of the respondent on account of 'stop payment'. The appellant got intimation of the dishonour of the cheque on 11.08.2007 and served a legal notice dated 6.09.2007 on the respondent asking her to make the payment in respect of the dishonoured cheque. The respondent sent a reply to the legal notice on 15.09.2007 and did not make the said payment within the stipulated period. Hence, appellant filed a complaint before the competent court under Section 138 of NI Act.

(2.) DURING trial in the Lower Court, the complainant examined himself. The respondent also examined herself. The Lower Court after considering contention of both the parties found the accused not guilty of the offence u/s 138 of the Act and acquitted the accused by stating that the accused was successful in raising a probable defence as she showed the non -existence of any debt or liability and consideration. As per the trial court, the complainant has only claimed that at the time of termination of tenancy, there were dues in respect of electricity bills, however, the complainant failed to substantiate his claim by any cogent evidence and that the complainant himself had submitted that the accused was paying the electricity bills on actual bills and hence the said cheque in question cannot be said to be issued with regard to the discharge of dues with regard to the electricity bills. It was further noted that the complainant's claim that there were some dues in respect of damages of missing furniture and damaged fixture cannot be justified as a definite amount in liquidated form cannot be arrived at since no details with regard to the damages have been furnished by the complainant. Even the complainant had not taken any stand that he made any estimation of the damage done by the accused. It was further observed by the trial court that since no final settlement was arrived at between the parties, the complainant and his mother have to account for the security deposit of Rs.1,50,000/ -. Although nothing has been stated by the complainant in this respect, it may be deduced that the said security deposit had been adjusted towards the so called electricity dues and damages and if it hadn't been adjusted, then the electricity dues of Rs.42,500/ - ought to have been adjusted with the security amount of Rs.1,50,000/ -. Furthermore, it was held that the termination of the rent agreement was at the behest of the landlord and as per the rent agreement, accused was clearly having a three months notice period. However, she decided to leave the premises at the earliest without waiting for such notice period. There was no right vested in the complainant to claim any excess payment and there was no liability on the accused to pay any excess amount. Hence, the trial court held that the accused was able to give a probable defence. The complainant has not examined anybody else except himself and, therefore, accused was acquitted from the charges in the present case.

(3.) SINCE this is an appeal against acquittal, it will be proper to consider the legal position first. Chapter XXIX (Sections 372 -394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the present Code') deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376) . Section 377 permits appeals by the State for enhancement of sentence. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal.