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2010 DIGILAW 567 (DEL)

RAM PRAKASH v. AMITOSH MOITRA

2010-04-19

VIPIN SANGHI

body2010
ORDER 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 24.7.2009, 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. 1.1.1999 to 31.12.2000 was Rs. 70,000/- per month. From 1.1.2001 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 1.1.2001. 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, ere 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 6.11.2001, whereas according to the respondent the said premises was vacated on 3.11.2001. It is also the admitted position that the petitioner did not refund the security deposit of over Rs. According to the petitioner the premises was vacated on 6.11.2001, whereas according to the respondent the said premises was vacated on 3.11.2001. 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. 4. The complaint in question had been preferred by the complainant/petitioner in respect of dishonour of two cheques dated 5.11.2001 and 5.12.2001 which had been tendered towards payment of rent for the months of November and December, 2001. The petitioner does not dispute that he is not entitled to recover rent for the said months as the premises was vacated in the beginning of the month of November, 2001. However, the petitioner sought to encash the said cheques by claiming that an amount of Rs. 4,57,244/ - was due and payable by the respondent. The details of the said amount, as claimed by the petitioner, are as follows: (in Rs.) " (i) Unpaid occupation charges from 1.1.2001 to 31.3.2001 @ Rs.14,000 / - (Rs.84000- Rs.70000) per month. 42,000.00 (ii) Unpaid occupation charges from 1.4.2001 to 31.8.2001 @ Rs.25550 / - per month (Rs.84000 - Rs.58450) 1,27,750.00 (iii) Unpaid occupation charges from 1.9.2001 to Nov. 2001 @ Rs. 84000/- 2,52,000.00 (iv) Interest @ 20% per annum on unpaid occupation charges upto 5.1.2002 35,204.00 (v) Charges for periodic dishonouring cheques Total 4,57,244.00" 5. It would, therefore, appear that the aforesaid claim of the petitioner was founded upon his case that the turnover of the respondent had exceeded Rs. 1 crore (according to him) and Rs. 2 crores (according to the respondent). In my view, the aforesaid claim could not be said to be a debt, which was due, as it involves the determination of the issue as to whether the turnover of the respondent, in fact, exceeded the amount that the parties had agreed to under the MOU. As to what was the said amount (whether 1 crore or 2 crores) is also an issue which has to be determined by a competent Court. The cheques in question were post-dated cheques given to the petitioner towards payment of rent for the months of November and December, 2001. The said cheques, in any event, could not have been utilized for realization of any other amount even if due to the petitioner. The cheques in question were post-dated cheques given to the petitioner towards payment of rent for the months of November and December, 2001. The said cheques, in any event, could not have been utilized for realization of any other amount even if due to the petitioner. Since the cheques had been given for liquidation of a specific liability, which eventually did not arise, (as the respondent had already terminated the lease and vacated the premises in the beginning of November, 2001), the said cheques could not have been utilized to realize the so-called dues from the respondent. Much less, the petitioner could found (sic. file) a complaint under Section 138 of the Negotiable Instruments Act on the basis of dishonour of the said cheques. 6. I find no force in the submissions made by the petitioner that as the respondent had not demanded return of the said cheques at the time of vacation of the premises, the respondent could be understood to have agreed to their encashment by the petitioner to satisfy a part of his claims. The learned trial Court has rightly held that the petitioner has adopted a shifting stand in the course of the trial. The various decisions sought to be relied upon by him, namely, Umaswamy v. K.N. Ramanath, III (2007) BC 211=2007 (2) DCR 377; Purushottam v. Manohar K. Deshmukh and Anr., 2007 (2) DCR 379; I.CD.S. Ltd. v. Beena Shabeer, III (2002) BC 310 (SC)=IV (2002) SLT 701= 2002 (3) KLT 218 (SC); and Tarmahomed v. Tyeb Ebrahim, AIR (36) Bombay 257 have no application in the facts of this case. Dismissed. Petition dismissed.