V.B. Raju, J.
1. This is a reference by the learned Sessions Judge of Ahmedabad, recommending that the conviction of one Mohanlal Narandas who will be hereinafter referred to as the petitioner under Section 26 of the Bombay Rent Act for not having given a receipt when he was given a cheque by his tenant for Rs. 28-63 np. being rent for the month from 1-7-59 to 31-7-59. The cheque was not encashed by the landlord who returned it. The learned Judicial Magistrate First Class Second Court Ahmedabad was of the view that the landlord should not have retuned the cheque but should have given a receipt. He therefore convicted the petitioner under Section 26(2) of the Bombay Rent Act and sentenced him to a fine of Rs. 10/- in default seven days' simple imprisonment. The learned Sessions Judge is of the view that this conviction is erroneous because no money is received until a cheque is actually cashed or until the amount of the cheque is credited in the bank account of the landlord. His view is that if a cheque is not cashed but returned it cannot be said that the amount was actually received by the payee of the cheque. The learned Sessions Judge therefore thought that Section 26 of the Bombay Rent Act should be strictly construed and that therefore the conviction of the petitioner was wrong.
2. I accept the reference for the following reasons: Section 26 of the Bombay Rent Act reads as follows:
26(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) 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.
3. It is therefore only when an amount is received by the landlord that he should give a written receipt at the time when the amount is received. The words when such amount is received are important. In the case of a cheque the mere giving of a cheque does not amount to giving any amount. The date when the amount is received and the amount received have to be intimated by the landlord's bank. Sometimes cheques may be dishonoured. Therefore unless the cheque is credited to the account of the landlord he is not bound to give a receipt under Section 26(1) of the Bombay Rent Act. The amount for which the receipt has to be given also depends on the exact amount realised. It is true that in order to evict a tenant a landlord might not cash the cheque but in order to avoid such a contingency the tenant must pay the rent either in cash or by money order. A cheque is merely an order to a Bank to pay money to the payee of the cheque. It is not a payment of money. The conviction of the petitioner under Section 26 (2) of the Bombay Rent Act is therefore erroneous.
4. The reference is accepted and the conviction and sentence passed upon the petitioner are set aside. Fine if paid should be refunded.