1 APPLN-2854.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.2854 OF 2010 Mahesh Ramesh Mehta .... Applicant Vs. Harihar Himmatlal Mehta & Anr. .... Respondents Shri Rajesh N. Kachare for the Applicant. Shri A.S. Khandeparkar i/b M/s. Khandeparkar & Associates for Respondent No.1. Shri S.A. Shaikh, APP, for the State. CORAM: R.C. CHAVAN, J. DATED: JULY 19, 2011 P.C: 1. This is an application for leave to file appeal against acquittal of the respondent/landlord ordered by the learned Additional Chief Metropolitan Magistrate, 4th Court, Girgaon, Mumbai for the offence punishable under Section 31 of the Maharashtra Rent Control Act (for short, the Act ). The allegation is that the tenant had remitted some amount towards rent by sending the amount by demand draft to the Advocate of the landlord. The landlord did not issue any receipt for the amount so received. Therefore, complaint was 2 APPLN-2854.10 filed alleging that the landlord had committed an offence punishable under Section 31 of the Act which corresponds substantially with Section 26 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, the Bombay Rent Act ). The learned Magistrate held, relying on a judgment of this Court in Gopal Sitaram Mahashabde v. State, reported in 1964 Mh.L.J. 153, that the landlord was not under an obligation to issue receipt under the circumstances and therefore no offence punishable under Section 31 of the Act was committed by him. The learned counsel for the applicant submitted that the view taken by the learned single Judge of this Court in Gopal Sitaram Mahashabde s case (supra) may require a re-consideration and therefore sought that leave may be granted in this case. 2. It may be useful to reproduce the requirement of Section 31 of the Act as under: 31. Giving receipt for any amount received compulsory.- (1) Every landlord shall give a written receipt for any amount at the time when such amount is received by him in respect of any premises in such form and in such manner as may be prescribed. (2) Every landlord shall, without 3 APPLN-2854.10 charging any consideration, issue the rent receipt in respect of the premises let out to the deceased tenant in the name of the family members referred to in sub-section (d) of Clause (15) of section 7. (3) Any landlord or person who fails to give a written receipt for any amount received by him in respect of any premises shall, on conviction, be punishable with fine which may extend to one hundred rupees for each day of default. 3. Section 26 of the Bombay Rent Act did not contain sub-section (2) of Section 31 of the Act but otherwise Section 31 corresponds to Section 26 of the Bombay Rent Act. In this context, in Gopal Sitaram Mahashabde's case, this Court had held as under: "4. On a true construction of sub-section (1) which uses the word `give', it seems to me that the only situation contemplated by the Legislature while enacting this sub- section was that the tenant or his representative should go to the landlord to give his rent in cash and the landlord at the time of receiving the amount of rent should give a written receipt in the form prescribed by the rules. The sub- section does not contemplate the case of a tenant remitting the rent by money-order. If the Legislature had intended to provide for such a 4 APPLN-2854.10 contingency, it could have certainly used some other appropriate word or words in the sub-section with regard to the passing of the receipt by the landlord in respect of the rent so received by him. Since, however, the sub-section uses the word `give' the landlord cannot be expected to `send' the rent receipt to the tenant either by registered post or otherwise. It must be noted that the section is a penal one and, therefore, it has necessarily to be construed strictly. The learned Assistant Government Pleader Mr. Vaidya contended that the word `give' must be construed to meet the other contingency mentioned above as well so as to compel the landlord to `send' the receipt by registered post or otherwise as might be required by the tenant. I am afraid, that contention cannot be accepted. "To give" and "to send" have got different meanings altogether in the English language; "giving" is not "sending," nor is "sending" "giving," nor does the word `give' include what the word `send' means. The two cannot stand together at all. The learned Judge in his reference has relied upon this construction of the section, and, in my opinion, the construction put upon it by him is perfectly justified. 5. The learned Judge has, however, stated that there was substantial compliance with the provisions of the section by reason of the accused-landlord having signed the money-order coupons in acknowledgement of the receipt of the 5 APPLN-2854.10 money. I wonder very much how such acknowledgement in the absence of any words showing that the money was received in payment of rent would operate in law as a receipt in respect of rent due from the tenant. The section specifically requires a landlord to give receipt in respect of the rent received by him in the prescribed form. Merely putting one's signature on the money-order from indicating that one has received the money specified in that form cannot amount to the slightest compliance, much less substantial, with the requirements of the section. In other words, it does not partake of any of the elements which constitute the receipt in the prescribed form. In my opinion, therefore, the reference of the learned Judge on this ground cannot be accepted. 6. The learned Judge further thought that when the landlord received the money-order in respect of rent from the complainant, it was not possible for him to comply with the requirement of the section since even though he might be prepared to give the receipts as required by that section, there was no one to receive it on behalf of the tenant. There is good deal of force in this view of the learned Judge, because obviously, the postman who brings the money- order is not authorised to receive the rent receipt from him on behalf of the tenant sending the money order. What the section contemplates is that the landlord shall give receipt to the person from whom he 6 APPLN-2854.10 receives the amount of rent, and obviously, such person could not be any other than the tenant himself or his representative. This view of the learned Judge seems to be justified, both on the facts of the case as well as on the construction of section 26(1) of the Rent Act." 4. The learned counsel for the applicant submitted that the words in sub-section (1) of Section 31 regarding receipt of amount would also have to be read in the context of, in such form and in such manner as may be prescribed , and the form and manner prescribed do not refer only to the form and manner of issuance of receipt. I do not see as to how this argument advances his cause since it is not prescribed that the amount could be tendered by the tenant by demand draft sent with a letter addressed to a lawyer. In any case, what seems to me to be the requirement of law is that whenever any payment is made by a tenant to the landlord, it should be duly receipted so that there are no further disputes between the landlord and the tenant about the payment of rent or any other arrears which may give rise to serious consequences for the tenant. Therefore, the landlord is obliged to issue a receipt. When a certain sum is sent by a demand draft or other mode which itself 7 APPLN-2854.10 provides evidence of payment, insistence on a separate receipt may not be necessary since the fact that the landlord had received the money would be proved by tendering the document concerned in evidence. It is only when the amount is tendered in cash, that the landlord would be obliged to issue a receipt as a requirement under Section 31 of the Act. Therefore, I would like to go a step further than what has been observed by this Court in Gopal Sitaram Mahashabde's case and would even consider tendering of amount by a money order as not requiring a receipt when it is specifically mentioned in the coupon of the money order that the amount is towards rent, though the landlord may not have written in the acknowledgement coupon of the money order that the amount was received towards rent. In any case, as held by this Court in para 4 of the judgment in Gopal Sitaram Mahashabde's case, giving of receipt is same as signing of receipt and the landlord is only obliged to give the receipt. There is no obligation to send it. Since the landlord was not obliged to send any receipt, there is no question of offence punishable under Section 31 of the Act having been committed. The view taken by the learned Magistrate is proper and calls for no 8 APPLN-2854.10 interference. Leave refused. Appeal dismissed. The application accordingly stands disposed of. (R.C. CHAVAN, J.)