Max (Max) 04 August 2014

Ni 138, case after settlement is done

I would really appreciate on some guidance for this case :

1) Shop was taken on rent at Rs. 70,000 per month and post dated cheques were issued.

2) The cheque for 15.03.2014 bounced and a notice was issued by the landlord on 15.04.2014

3) A settlement was done with the landlord on 18.05.2014 with the following clauses :

"Landlord's Release of the Tenant. For and in consideration of the mutual covenants set forth herein, Landlord (for itself and its successors and assigns) hereby RELEASES AND FOREVER DISCHARGES the Tenant and its predecessors, successors, subsidiaries and affiliates (and their current or former officers, directors, members, employees, agents, partners, principals, managers, insurers, successors and assigns) from any and all claims (including, but not limited to, claims for attorneys' fees), demands, losses, damages, agreements, actions, liens, promises or causes of action (known or unknown) which Landlord now has or may later discover or which may hereafter exist against them, or any of them, in connection with or arising directly or indirectly out of or in any way related to the Lease.

The Tenant has deposited with the Landlord a sum of Rs. Two Lacs Ten Thousand (“Security Deposit”) on the date of execution of the Lease. The Tenant agrees to sign over this Security Deposit to the Landlord and the Landlord agrees to accept this Security Deposit as a full and final settlement for any arrears, taxes, utility bills or any other arrears which Landlord now has or may later discover or which may hereafter exist against them, or any of them, in connection with or arising directly or indirectly out of or in any way related to the Lease, and whether"

4) The landlord files a case under section 138 NI after the settlement on 30.05.2014

5) Summons are received on 01.08.2014 to appear in the court.

My question is if settlement is already done with the landlord by paying him 2.10 lacs for arrears, is he still allowed to file a case after the settlement? Should we go for quashing or should we fight the case? Will appreciate your comments.

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6 Replies

Rama chary Rachakonda (Secunderabad/Highcourt practice watsapp no.9989324294 ) 04 August 2014

You can file written statement saying that you already paid as security deposit to clear the arrears. No problem at all. Filing the case by landlord is waste. He would have send a notice to you saying that he would utilise the secuity deposit for clears the arrears. That is enough.

LAXMINARAYAN - Sr Advocate. ( solve problems in criminal cases. lawproblems@gmail.com) 04 August 2014

The defense in civil cases and criminal cases is entirely different..

Even if the case is filed in criminal cases it is the duty of the complainant to prove his case and right of the accused to demolish it by expert cross.

So accused should never file any ws, it may give many admissions and will weaken the defense.

Max (Max) 04 August 2014

Thanks for your replies. But we already have a settlement letter from the landlord and we have vacated the premises. What is the best option now? Should we go for quashing?

Advocate Bhartesh goyal (advocate) 04 August 2014

It is not beneficial for you to file quash petition as it is matter of evidence that any settlement deed was executed or not and H.C will not quash the complaint so fight the case and provie the settlement deed in trial.

T. Kalaiselvan, Advocate (Advocate) 04 August 2014

Since the cheque amount is reportedly settled by deductions from the security deposit amount, here is no claim or legally liable debt lying with the complainant. This is very good case for defence. Better challenge the case properly and get it dismissed through the trial court itself.

R Trivedi (advocate.dma@gmail.com) 09 August 2014

Our criminal jurisprudence practice is half cooked. That is the courts feel that they are required to adjudicate Guilty or Not Guilty for accused. In complaint cases, the courts must suo mot take up under various IPC sections complainant Liar or not Liar.

Once the acquittal is ordered, the courts and even harassed accused do not take up the falsehood of complainant to logical conclusion, that is why there are plethora of false cases under S.138 of NI Act, DV Act and now amended S.354.

It is shocking to note that various trial court magistrates and counsels feel that so what if complainant has lied in his deposition. The courts equate the right of accused to remain silent or lie with that of similar right with complainant. if Complainant lies in his submission it is contempt and if he lies on oath it is perjury. Both are punishable.