The court distinguished between offences under S.138 and S.420, affirming that acquittal in one does not bar prosecution in the other due to differing legal elements.

1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties.

2. To state in brief, the petitioner is the owner of certain premises. On 29-10-1983, an agreement was entered into between the petitioner and the respondent No. 1 in respect of the suit premises. As per that agreement, the premises were given to the respondent No. 1 on license on payment of license fee of Rs. 3 lakh per month inclusive of all Municipal taxes. This agreement was to be valid for a period of 5 years. The same agreement also provided that the respondent No. 1 would have an option to purchase the premises within a period of 5 years from the date of agreement. The consideration for sale of the property was to be decided mutually by negotiation. However, the respondent No. 1 made payment of Rs. 1,28,52,000/- to the petitioner as earnest money out of the consideration for sale of the property as could be determined later on. It was also provided that if the option to purchase the property was not exercised within 5 years, the respondent No. 1 would vacate the premises and hand over the possession to the petitioner and the petitioner would repay the earnest amount of Rs. 1,28,52,000/-. The said amount was not to carry any interest. Admittedly, within a period of 5 years from the date of agreement, the respondent No. 1 did not exercise the option to purchase the property and, therefore, the agreement for sale came to an end as per the provisions of the said agreement itself.

3. In spite of expiry of the period of five years, the respondent did not vacate the premises and continued to hold on possession. The petitioner repeatedly wrote letters to the respondent to vacate the premises. According to him, due to lapse of time, the property tax and other taxes and levies by the Municipal Corporation went on increasing and therefore, the licence fee was liable to be raised and the respondent would be liable to pay revised license fee as well as pay Municipal taxes. About this, he had a huge claim against the respondent. Admittedly, some other property of the petitioner was also taken by the respondent on lease / license for a period of 5 years and in respect of that property, the rent / license fee was increased and the Municipal taxes etc. were also paid in addition to the rent after expiry of lease period. That payment was made by set off against the earnest money in respect of that property. The learned Counsel for the respondent contends that in respect of this property also all such additional payments have been made and the petitioner has been reimbursed about the payments which he made towards outgoings to the Society. This is disputed by the learned Counsel for the petitioner. It is not necessary to enter into that controversy for decision of the present petition.

4. The petitioner was insisting the respondent to vacate the premises, but the respondent was not willing to vacate the same without repayment of the earnest money. According to the petitioner, he had a huge claim against the respondent and the said amount could be adjusted against the earnest money and still heavy amount was due from the respondent to the petitioner. Admittedly, in view of the insistence by the respondent for refund of the earnest money as condition for vacating the premises, on 30-6-2005, the petitioner issued a cheque of Rs. 1,28,52,000/- in favour of the respondent and handed over the same to its officers. On receipt of the said cheque, the respondent immediately vacated the premises and the petitioner was put in possession of the same. However, after taking possession of the premises, on the same day the petiti