Devi Prasad Tripathi vs Smt. Janak Kishori Misra and Others

I.P. Singh, J.—This criminal appeal has been filed by Devi Prasad Tripathi, Advocate-complainant u/s 378(4) Code of Criminal Procedure against the judgment and order of Sri J. Chandra, Special Metropolitan Magistrate Kanpur, in a case No. 1049 of 1977 passed on 29-7-78 dismissing the complaint and thereby acquitting the accused-Respondents Smt. Janak Kishori and her husband Ram Baran of the offence u/s 31 read with Section 26 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act XIII of 1972 (hereinafter referred to as the Act.

The brief facts are as follows:

It is admitted that Devi Prasad Tripathi, Advocate-complainant, is the tenant of the premises in question of which Smt. Janak Kishori Misra, wife of Ram Baran Misra, is the landlady. The complaint of the complainant is that the landlady had cut off the amenity of electric supply to the premises of the complainant which he was entitled to by virtue of the provisions of Section 26 of the Act. Sub-section (1) of said Section 26 provides:

No landlord shall without lawful authority or excuse cut off, withhold or reduce any of the amenities enjoyed by the tenant.

Section 31(1) of the Act provides that;

Any person who contravenes any of the provisions of this Act...shall be punished on conviction with imprisonment of either description or term which may extend to six months or fine which may extend to five thousand rupees or with both.

Section 33(1) of the said Act provides that no prosecution for an offence punishable under this Act shall be instituted except on a complaint authorised by the District Magistrate.

It is said that since the landlady cut off the electricity supply to the premises on tenancy with the complainant so the requisite sanction or authorisation from the District Magistrate to file the present complaint or to initiate the present prosecution was obtained. It was in that background that the complaint was tried by the learned Special Metropolitan Magistrate, Kanpur.

After appreciting the evidence on record he recorded acquittal of accused persons and dismissed the complaint.

Here it may be noted that in the complaint, along with Smt. Janak Kishori Misra, the landlady, her husband Ram Baran Misra was also made accused No. 2. But as is obvious from the relevant provisions, quoted above, the offence u/s 31 of the Act could only be committed by the landlord or the landlady. It is nobody''s case that Ram Baran Misra enjoys such capacity. Obviously the complaint had to be dismissed against Ram Baran Misra. It was rightly done by the learned Magistrate.

So far as Smt. Janak Kishori, accussed No. 1 is concerned, she could be convicted of the offence provided she committed any act within the meaning of Section 26 of the said Act. The allegation is that she on her own volition had applied to the Electricity Authorities to cut off electricity connection. This fact was deposed to by Devi Prasad, Advocate complainant as PW 2. However, no effort was made to bring on record the copy of that application or to produce any witness from the electricity department who could say that any such application was moved by Smt. Janak Kishori. On the other hand, on the basis of evidence on record the finding of the learned Magistrate is that the electricity connection was cut off due to nonpayment of electricity dues by the tenant.

The argument advanced by the learned Counsel for the Appellant is that it was the duty and obligation of the landlady to deposit the electricity dues to keep the connection alive and if she had made a default in that direction, then it would be considered to be her overt act in securing disconnection. But then the court will have to see what were the rights and obligations between the landlady and the tenant regarding the payment of electricity dues. If the electricity dues were to be paid by the tenant, then she would not be depositing the electricity dues from her own pocket to keep the connection alive for the benefit of the tenant. As a matter of fact, nothing has come on record to indicate the mutual rights and obligations in the matter of payment of electricity dues between the landlady and the tenants. In this criminal prosecution the onus was on the complainant to prove that either the tenants were not liable to pay dues or that the tenants had in fact paid the dues to the landlady and she had on her part failed to deposit the dues with the electricity authorities. Of course, Sri Devi Prasad, Advocate (PW 2) has stated that the landlady used to realise the electricity dues from the tenant and it was she who failed to deposit the same with the electricity authorities. However, this statement cannot be accepted because if the electricity dues had been paid by the tenant to the landlady there ought to have been in existence some receipts to that effect They have not been brought on record. Under the circumstances the complainant has failed to establish that the tenants including himself had paid all electricity dues to the landlady and she intentionally failed to deposit the same with the electricity authorities in order to secure disconnection of the electricity supply. Under the circumstances it cannot be said that there was any overt act or intentional omission on the part of the landlady, namely, Smt. Janak Kishori, accused No. 1, to cut off the electricity supply. No offence has been committed by her.

The complaint was rightly dismissed and she too was rightly acquitted. The appeal has no force. It is hereby dismissed.

Appeal dismissed.