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2001 DIGILAW 1673 (MAD)

C. Premarajan v. Uma Nambiar

2001-12-21

A.SUBBULAKSHMY

body2001
Judgment :- 1. Tenant is the revision petitioner. 2. The Tenant filed petition under Sec. 8 (5) of the Pondicherry Buildings (Lease and Rent Control) Act for deposit of rent. The petitioner became tenant under the respondent under a lease agreement dated 24.4.1998 and the monthly rent to be paid by the tenant was Rs. 3000/- and the lease is in respect of ten years. The petitioner was paying rent from August 1998 regularly. The petitioner contends that three months prior to the presentation of the petition, the respondent has shifted her residence to Chennai without informing the petitioner or revealing her present address and accordingly, the rent for September and October 1998 were sent by money order to the old address and the same were sent redirected by the postal authorities to Chennai and they reached the hands of the respondent who accepted the money orders sent after deducting the money order commission, whereas the rent for November 1998 was also sent by money order to old address and it was also redirected to the respondents address at Chennai. But, the respondent refused to receive the same and the amount was returned to the petitioner and the respondent, only with a view to harass and inconvenience the petitioner, refused to receive the rent and hence, there is necessity for the petitioner to deposit the monthly rent. 3. The landlady/respondent filed counter contending that the respondent prior to her departure to Chennai informed the petitioner to send the rent to her Madras address, by furnishing the address to him, but however, the petitioner sent the rent by money order for 2,850/- by way of rent for the month of September 1998 which did not represent entire rent. The respondent received the same without prejudice and she refused to receive the rent for the month of October 1998 and later the respondent sent a letter, to the petitioner in December 1998 expressing her readiness to receive the rent and directing the tenant to take the demand draft for the rent after deducting a sum of Rs. 10/- by way of demand draft commission. But the petitioner did not send the rent by taking demand draft and resorted to necessary litigation. The respondent further contends that the petition is not maintainable since the petitioner has not complied with sub-section 4 of Sec. 8. of the Pondicherry Buildings (Lease and Rent Control) Act. 10/- by way of demand draft commission. But the petitioner did not send the rent by taking demand draft and resorted to necessary litigation. The respondent further contends that the petition is not maintainable since the petitioner has not complied with sub-section 4 of Sec. 8. of the Pondicherry Buildings (Lease and Rent Control) Act. 4. The Rent Controller heard the petitioner and allowed it. On appeal, the Appellate Authority set aside the order passed by the Rent Controller allowing the appeal. As against that order, the Civil Revision Petition is filed by the tenant. 5. Counsel for the revision petitioner submitted that the tenant did not withhold the rent and he sent the rent by money order as the landlady left the premises to Madras without informing the tenant her Madras address and so, he sent the rent by money order which was received by the landlord for two months and for the subsequent month i.e., October 1998, the money order sent by the tenant was refused by the landlady and so, he was obliged to comply with Sec. 8(5) of the Pondicherry Buildings (Lease and Rent Control) Act for deposit of rent and his filing of petition under Sec. 8(5) of the Act is bona fide . 6. Counsel for the respondent/landlady submitted that the landlady never refused to receive the rent or evaded to receive the rent and the landladys parents were residing there only and the landlady came to Madras to her husbands place and the tenant sent the rent after deducting the money order commission of Rs. 150/- which the landlady was unable to bear and so, she refused to receive it and asked the tenant to send the rent by demand draft and also to deduct the commission, by means of letter dated 24.12.1998 and the tenant did not act as per her letter and she was going on sending the rent by money order after deducting the heavy amount of money order commission of Rs. 150/-and as the landlady did not receive the entire rent amount of Rs. 3000/- per month, she refused to receive the rent and there is no bona fide on the part of the tenant in filing the petition. 7. 150/-and as the landlady did not receive the entire rent amount of Rs. 3000/- per month, she refused to receive the rent and there is no bona fide on the part of the tenant in filing the petition. 7. As rightly pointed out by the learned counsel for the respondent/landlady, the respondent neither refused to receive rent nor evaded to receive the rent and only because the rent for October 1998 was sent by money order after deducting the money order commission of Rs. 150/-, the landlady refused to receive the rent. In the letter sent by the landlady on 24.12.1998, the landlady had expressed her willingness to receive the rent and directed the tenant to send the rent by demand draft and also requested the tenant to deduct the demand draft commission of Rs. 10/- from the rent amount. As the money order commission of Rs. 150/- was felt to be heavy by the landlady, she had expressed her desire to receive the rent by demand draft and directed the tenant to send the rent by money order. Even after receipt of such a letter, the tenant did not choose to send the rent by demand draft and he has come forward with the petition for depositing the rent into court. 8. The tenant has to act as per the direction given by the landlady. The tenant cannot choose his own method of paying rent by sending it by money order after deducting the money order commission of Rs. 150/-. The tenant has to adopt the mode prescribed under the provisions of Sec. 8(5) of the Pondicherry Buildings (Lease and Rent Control) Act before resorting to filing of petition under Sec. 8(5) of the Act. Sub-clauses 1 to 5 of Sec. 8 of the Act reads as follows: “(1) Every tenant who makes a payment on account of the rent or advance shall be entitled to obtain a receipt in the prescribed form for the amount paid duly signed by the landlord or his authorised agent. Sub-clauses 1 to 5 of Sec. 8 of the Act reads as follows: “(1) Every tenant who makes a payment on account of the rent or advance shall be entitled to obtain a receipt in the prescribed form for the amount paid duly signed by the landlord or his authorised agent. (2) Where a landlord refuses to accept or evades the receipt of any rent lawfully payable to him by a tenant in respect of any building, the tenant may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by him a bank into which the rent may be deposited by the tenant to the credit of the landlord: Provided that such bank shall be one situated in the commune in which the building is situated or if there is no such bank in such commune the nearest bank. (3) If the landlord specifies a bank as aforesaid, the tenant shall deposit the rent in the bank and shall continue to deposit in it any rent which may subsequently become due in respect of the building. (4) If the landlord does not specify a bank as aforesaid, the tenant shall remit the rent to the landlord by money order, after deducting the money order commission. (5) If the landlord refuses to receive the rent remitted by money order under sub-section(4), the tenant may deposit the rent before the controller and continue to deposit with him any rent which may subsequently become due in respect of the building. 9. Under the provision of Sec. 8 of the Act, the tenant has to make payment of rent and obtain receipt and only if the landlord refuses to receive or evades to receive rent, the tenant can issue notice in writing requiring the landlord to specify the name of a bank into which the rent may be deposited and only if the landlord does not specify a bank, the tenant shall send the rent by money order, after deducting the money order commission and only if the landlord refuses to receive the rent sent by money order, the tenant can deposit the rent before the Rent Controller. In the case on hand, there is no evidence to prove as to when the tenant tendered rent and landlady refused to accept the rent or evaded receipt of rent. In the case on hand, there is no evidence to prove as to when the tenant tendered rent and landlady refused to accept the rent or evaded receipt of rent. Without taking any steps to pay the rent to the landlady, the tenant had chosen to send the rent by money order and he has also not followed the provisions of Sec. 8 of the Act. 10. Learned counsel for the respondent further submitted that the landladys people were available in the petition mentioned premises and the tenant could have paid the rent to them and obtained receipt, but without resorting to such course, he sent the rent by money order and he also did not ask the landlady to state the name of a bank in which he could deposit the rent. 11. The tenant, without following the specifications in Sec. 8 of the Act has filed the petition for deposit of rent. Without resorting to the mode prescribed in Sec. 8(2) of the Act, the tenant had chosen to send the rent by money order. The mode adopted by the tenant in sending the rent by money order without following the specification of Sec. 8 of the Act goes to establish that there is no bona fide on the part of the tenant in filing the petition and in order to harass and cause hardship, the tenant has come forward with the petition. 12. It is quite natural for the landlady to say that she is not inclined to forego a sum of Rs. 150/-every month towards money order commission. When the landlady has expressed the mode of payment for sending the rent by demand draft and when she has also given clear consent for deducting the demand draft commission, the tenant ought to have sent the rent by obtaining demand draft after deducting the demand draft commission. The tenant has not chosen to do so and he has sent the rent by money order which caused loss to the landlady to the tune Rs. 150/- per month. The tenant is not expected to cause such a loss to the landlady. The tenant has not chosen to do so and he has sent the rent by money order which caused loss to the landlady to the tune Rs. 150/- per month. The tenant is not expected to cause such a loss to the landlady. If the tenant found it difficult to get demand draft as desired by the landlady, he ought to have followed the procedure laid down in sub-section (2) of Sec. 8 of the Act requesting the landlady to specify the name of a bank so that he can deposit the rent in that bank. The tenant did not do so. Only after exhausting these things, the tenant has to send the rent by money order. The tenant has come forward with the petition for deposit of rent without following the procedure as laid down under Sec. 8 of the Act. 13. In Padmavathi Ammal v. Gopal (1994 (2) MLJ 622) this court has held that when the tenant chooses to exercise the provision of Sec. 8.(5) of the Act, he shall take steps one after another as laid down in the procedure and only if the landlord still refuses to receive the rent, then he can come to the court with a petition under Sec. 8(5) of the Act. The Appellate Authority following the above said decision, has rightly held that the petition for deposit of rent is not sustainable and allowed the appeal. There is no error in the order passed by the Appellate Authority. In the result, the Civil Revision Petition is dismissed. No costs. Consequently C.M.P. 18202 of 2001 is also dismissed. 14. The revision petitioner/tenant in the Civil Revision Petition has filed a criminal complaint against the husband of the landlady under Sec. 200 Cr.P.C. alleging that the accused absconded after embezzling Rs. 25,000/- from the office of the complainant and the accused, by representing as a partner of the complainant to third parties, got amount from many consumers in connection with gas connection without the knowledge of the complainant promising them to give gas connection and the accused also managed to secure four signed blank cheques from the complainant by misleading and pressure, amounting to coercion and those cheques were returned only after getting Rs. 4,00,000/- from the complainant and the accused had also forced the compliment to execute a sale deed in the name of his wife, Uma Nambiar on 24.7.1998 without paying the consideration and at the time of execution of the document, the accused represented that he would hand over the amount immediately after the registration and believing that, the complainant signed in the sale deed, but the accused, after obtaining it, did not pay the amount of sale price Rs. 8,27,000/- and thus cheated the complainant. 15. The complaint was returned and after representation, sworn statement of the complainant was recorded and the complaint was taken and file and process of summons was issued to the accused and the accused preferred Criminal Revision Petition No. 3 of 2000 before the II Additional Session Judge, Pondicherry alleging that if the allegations made in the complaint is taken on their face value, no offence is made out against the petitioner and the very issuance of the order of taking cognizance by the learned Sub Divisional Judicial Magistrate is invalid and the petition and sworn statement are vague and the learned Sub-divisional Judicial Magistrate appears to have issued the process of summons mechanically on the basis of the complaint to harass the accused and the order issuing process is not a speaking one and it does not show that the Judicial Magistrate has applied his judicial mind to find out whether there is sufficient ground for proceeding as provided under Sec. 204 Cr. P.C. and the order appears to be mechanical one without considering the sworn statement which will not make out any offence and the order of the learned Magistrate is liable to be set aside. 16. The Criminal Revision Petition was heard by the II Additional Sessions Judge, Pondicherry and it was allowed setting aside the order of the Sub Divisional Judicial Magistrate, make ordering issuance of summons to the accused and dismissing the complaint under Sec. 203 Crl.P.C. As against that order, the Criminal Revision case is filed by the complainant. 17. 16. The Criminal Revision Petition was heard by the II Additional Sessions Judge, Pondicherry and it was allowed setting aside the order of the Sub Divisional Judicial Magistrate, make ordering issuance of summons to the accused and dismissing the complaint under Sec. 203 Crl.P.C. As against that order, the Criminal Revision case is filed by the complainant. 17. Counsel for the complainant submitted that it being a private complaint filed by the complainant, after taking sworn statement, the Magistrate should pass order to take the complaint on file or to dismiss the complaint under Sec. 203 Cr P.C. and the complaint was taken on file by the Sub Divisional Judicial Magistrate, Mahe and issue of summons to the accused was ordered and the questions whether a case has been made out against the accused and whether the accused is guilty or not have to be decided only at the time of trial and the issue process of summons by the Magistrate cannot be set aside by the Session Judge when the Magistrate, on considering the materials, has taken the complaint on file. He further submitted that the Magistrate who has taken the complaint on file alone has got right to dismiss the complaint under Sec. 203 Cr. P.C. and the revision court cannot decide with regard to dismissal of the complaint when the Magistrate passed the order for issue of process and the issue of process cannot be set aside. 18. Both the counsel relied upon various decisions of this court and the Supreme Court. The counsel for the complainant submitted that the complaint was taken on file by the Magistrate and summons were issued to the accused for his appearance in court. As against that, the accused filed revision in the sessions court and the sessions court passed the order setting aside the order of the Magistrate for issue of process and dismissed the complaint under Sec. 203 Cr.P.C. and the order passed by the Session Judge is not proper and it has to be interfered with. 19. Learned counsel for the accused submitted that there is no ground at all to take the complaint on file and accordingly, the Session Judge passed the order dismissing the complaint under Sec. 203 Cr. 19. Learned counsel for the accused submitted that there is no ground at all to take the complaint on file and accordingly, the Session Judge passed the order dismissing the complaint under Sec. 203 Cr. P.C. Her further submitted that the private complaint filed by the complainant was returned on several occasions and that is not warranted and as soon as the complaint is filed, sworn statement has to be taken and the matter has to be decided following the procedure under Sec. 202 and 203 Cr. P.C. and dismissal of the complaint under Sec. 203 Cr. P.C. by the session Judge is perfectly justified. 20. The Counsel for the complainant submitted that the complaint was returned for carrying out corrections in the copy of the complaint and for carrying out defects and it was represented and as per the order of the Magistrate only. It was returned and it was represented and the office was directed to check up and put up and then on 6.5.1997, sworn statement was recorded and the complaint was taken on file and process was issued and the dismissal of the complaint under Sec. 203 Cr. P.C. by the Session Judge is not proper. He relies upon the decisions, in Maratt Rubber Ltd. v. J.K. Marattukalam (2000) 9 SCC. 547 ), Sri Goutam Sarkar v. Estate Manager, WM. Palace, Murshidabad & others (JT 1999 (10) SC 482) and Khacheru Singh v. State of U.P. and another ( AIR 1982 SC 784 (2) and submitted that the order passed by the Sessions Judge is not justified and when the complaint was taken on file, it is not open to the Session Court to assess the reliability of the evidence and pass orders in the Criminal Revision Petition dismissing the complaint and the orders passed by the Sessions Judge has to be interfered with. 21. 21. In Maratt Rubber Ltd. v. J.K. Marattukalam (2000) 9 SCC 547 ), the Supreme Court has held that when the Magistrate has taken cognizance of the offence, but, High Court exceeds its jurisdiction under Sec. 482 by considering the documents purported to be filed by the respondent in civil suits and relying upon the orders/observations made thereunder while quashing the criminal proceedings against the respondent, the powers of High Court under Sec. 482 should be cautiously exercised only to prevent the use of the process of court or gross miscarriage of justice and the complaint proceedings was directed to be proceeded in accordance with law. In Sri Goutam Sarkar v. Estate Manager. WM. Palace, Murshidabad and others (JT 1999 (10) SC 482), the Apex Court has held that “A bare look at the impugned order would indicate that the High Court has tried to decide the matter as the trial Court assessing the evidence which obviously is not permissible within the jurisdiction conferred under Section 482 Cr. P.C. which ought to be exercised only when the court comes to the conclusion that otherwise there would be an abuse of the Court. In Khacheru Singh v. State of U.P. and another ( AIR 1982 SC. 784 (2), the Apex Court has held that “All that the learned Magistrate, had done was to issue a summons to respondent No. 2-Satyavir Singh: If, eventually, the learned Magistrate comes to the conclusion that no offence was made out against Satyavir Singh, it will be open to him to discharge or acquit him, as the case may be. But it is difficult to appreciate why the order issuing “summons” to the accused should be quashed. We, therefore, set aside the orders passed by the Session Court and the High Court, restore that of the learned Special Judicial Magistrate, First Class, Meerut, dated February 2, 1979 and remit the matter to the trial Court for disposal in accordance with law”. Based on the above said decision, the counsel for the complainant strenuously argued that the dismissal of the complaint in the revision by the Sessions Court on appreciation of evidence is not at all warranted and when the Magistrate has taken the complaint on file and has ordered issue of process and the case has to be tried by the Magistrate, the order passed by the Sessions Court is not suscainable. 22. 22. The counsel for the accused relies upon the decision in Vinayagam A. v. Dr., Subash Chandran ( 2000 (I) CTC. 225 ) wherein it has been held that complaint cannot be returned for the purpose of carrying out defects and the Magistrate has to take cognizance before issuing summons or postponing it. He also relies upon the decision in Rajendra Kumar Sitaram Pande v. Uttam (1999) 3 SCC 184) it has been held that when no case of defamation is made out, the order of issuance of process and the proceeding itself is quashed. He also relies upon the decision in Punjab National Bank v. Surendra Prasad Sinha (1993 SCC (Cri. 149), wherein the Apex Court has held that the Court, on consideration of facts and circumstances should be satisfied that the accused is legally responsible for the offences charged and when the complaint is an abuse of process of the court to harass the bank authorities. The Magistrate is not justified in issuing process without applying mind to existence of prima facie case against the accused. The counsel also relies upon the decision in Madhavrao v. Sambhajirao (1988 Cri. L.J. 853), wherein the Supreme Court has observed that the legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence and it is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. He also relies upon the decision in Pepsi Foods Ltd. v. Special Judicial Magistrate (1998 SCC (Cri) 1400) wherein the Apex Court has held that when the preliminary evidence is not showing as to how it could be said that the appellants were manufacturers of either the bottle or the beverage or both and when there is absence of material on record to show that the appellants held licence under Fruit Products Order, 1955 for the manufacture of the offending beverages, the continuance of proceedings against the appellants would be abuse of process of law and hence, it was quashed. The counsel also relies upon the decision of Sambhaji D. Hendre v. State Maharashtra (1998 CRI L.J. 2117) wherein the Bombay High Court has held that when the nature of allegations discloses only a genuine Civil Dispute, the proceedings are liable to be quashed under Sec. 482 Cr. P.C. 23. Relying upon these decisions, the counsel for the accused submitted that the order passed by the Sessions Judge, in the Criminal Revision Petition dismissing the complaint under Sec. 203 Cr.P.C. is perfectly in order. 24. The Sessions Judge has observed in her order that the Magistrate has not recorded the sworn statement on the date of presentation of the complaint and only on the subsequent date, he recorded it after returning the complaint several times for carrying out defects which, in law, is erroneous and irregularity and the learned Magistrate has not passed a speaking order stating the reasons and the complaint alleges that the accused collected huge amounts from various depositors for gas connections and it is vague and it is not strengthened by mentioning the name of the persons from whom the accused collected the amount and how and where he collected and whether the amount was utilized by the accused from some other purposes. The Sessions Judge has further found that though the complainant submitted seven letters, none of those letters discloses the alleged misconduct of the accused. The Sessions Judge has further found with regard to blank cheques alleged to have been obtained by the accused that the complainant alleges that the accused had obtained four blank cheques from him under coercion and misrepresentation and he returned those cheques only after getting Rs. 4,00,000/- from the complainant the complainant has not submitted those cheques for better appreciation of the court and there is no iota of evidence by the complainant to show that blank cheques were issued by him. With regard to the sale deed, the Sessions Court has observed that the sale deed is a registered document and if no consideration was paid, the complainant would have reported the same and refused to execute the sale deed and the case of the complainant that the sale deed was effected without passing of consideration is not an acceptable one. 25. 25. So, on a perusal of the order passed by the Sessions Court, it is evident that the Sessions Court decided the matter as the trial Court assessing the evidence and passing the order. The Magistrate has taken cognizance of the offence and has taken the complaint on file and has issued process. When the complaint was filed before the Magistrate, the Magistrate after examining the complainant on oath, has come to the conclusion that prima facie case is made out and has taken cognizance of the offence and directed issuance of process under the provisions of Cr. P.C. If the Magistrate thinks that further enquiry is necessary, he can postpone the issuance of process and enquire into the case himself or direct further investigation be made for the purpose of deciding whether or not there is sufficient ground to make out a case under the provisions of Cr. P.C. and on consideration of statement of the complainant and his witnesses and the result of enquiry or investigation if any, the Magistrate is of the opinion that there is no sufficient ground to make out a case, he can dismiss the complaint under Sec. 203 Cr.P.C. In the case on hand, the Magistrate did not think it proper to dismiss the complaint on the available materials and took cognizance of the offence and issued process. It is very difficult to appreciate that the order issuing summons to the accused should be set aside. Since the Magistrate found that there are grounds to proceed further in the complaint, has issued process of summons to the accused. 26. The order passed by the Sessions Court on analysis of the entire case, as has to be done by the trial Court, is not sustainable and it is liable to be set aside. In the result, the Criminal Revision case is allowed. The order passed by the Sessions Court, Pondicherry, is set aside. The order passed by the Magistrate for issue of process is restored. The matter is remitted back to the Sub Divisional Judicial Magistrate Court, Mahe, for disposal according to law. No costs.