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State v Chand [2012] FJMC 288; Criminal Case 609.2009 (30 October 2012)

IN THE MAGISTRATE'S COURT
AT SUVA, FIJI
CRIMINAL CASE N0: 609/ 2009

BETWEEN:

THE STATE
PROSECUTION

AND:

DEWAN CHAND
ACCUSED

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Ms. Mataiciwa A for the Prosecution,
Mr. Singh R for the Accused Person,

Date of the Judgment: 30th of October 2012

JUDGMENT

1. The accused person Mr. Dewan Chand is charged with "Failing to give 12 weeks written notice to the prices and income board for a proposed increase in rent" contrary to paragraph 2 of the Counter inflation (Notification of proposed increase in rent) Order 1996, Legal Notice 63/96 and Section 30 (1) and 32 of the Counter - Inflation Act Cap 73.
   

The particulars of the offence are that,

Dewan Chand did on the 1st day of July 2004 at Suva in the Central Eastern Division being a landlord caretaker of a residential premises proposed an increase in rent from $800 per month to $1200 per month to his tenant failed to give twelve weeks written notice to the PIB for the said proposed increase in rent for the continued letting of the said premises under the tenancy to which the Act applies".

2. The accused person pleaded not guilty for this offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called five witnesses and the accused gave evidence on oaths. At the conclusion of the hearing both parties were invited to file their respective final submission for which they filed accordingly.
   
3. Section 2 of the Counter Inflation (notification of proposed increases in Rent) order 1996 states that "At least twelve weeks written notice shall be given to the prices and income Board of any proposed increase in any rent including ground rental in respect of the letting or continued letting by any person or class of persons (including the state) of any premises under any tenancy to which the act applies".
   
4. In view of the section 2 of the Counter Inflation (notification of proposed increases in Rent) order 1996, the main elements of this offence are that the accused person,
   
   1. Being a person who let the premises in question,
   2. Increased the price of the rent to $1000 from $800 on the 1st day of July 2004,
      
5. Bearing in mind the main elements of this offence, I now proceed to briefly review the evidence of the prosecution and the defence. Here I do not wish to be repetitive and only briefly outline the nature of the evidence presented by the parties. That does not indicate that I only considered the evidences which I briefly mentioned in this judgment. I have carefully considered and anaylised all the evidence presented by each and every witness together with their demeanor in presenting the evidence before the court.
   
6. The first prosecution witness is Sunita Devi Mishra who is the tenant and the complainant of this matter. She stated in her evidence that she was offered the entire flat which consist with bottom and top flats Mr. Ami Chand who is the owner of the premises when the bottom flat was vacant. She then accepted the offer of Mr. Ami Chand for a monthly rent of $1200 as Ami Chand promised her to do some renovations to the premises. She admits in her evidence she had paid rent of couple of months to the account of Mr. Ami Chand till October 2004. She then started to pay her rent to the accused as she identifies him as the caretaker and the power of attorney holder of Mr. Ami Chand. She further stated that whenever she asked the accused about the promised renovation he replied to refer them to Mr. Ami Chand.
   
7. Second prosecution witness is Chand Bi who is the former tenant of the bottom flat of this subject matter. She testified that she vacated the flat early 2004 and she paid Ami Chand $200 as monthly rent for the time she occupied the bottom flat. Third and fourth prosecution witnesses are the officers of Price and Income Board and testified that there is no written notice received from the accused person in respect of this alleged increase of rent.
   
8. The accused person in his evidence in oaths vehemently refused the charge and stated that he is not the landlord of this premises. He stated that he only collected rent on behalf of Ami Chand who is a resident of New Zealand.
   
9. Having considered the evidences presented by the prosecution and the defence, I find that the accused does not dispute that he received rent money from the complainant from October 2004 which admits by the complainant herself too. The main issues to be determine in this judgment are that whether the accused is the landlord or the person who let this premises to the complainant and has he increased the rent without proper written notice to the Price and Income Board on the 1st day of July 2004.
   
10. The evidence of the complainant, itself establish that she entered into this tenet agreement with Mr Ami Chand and not with the accused person. She has paid rent money of $1200 for couple of months to the account of Ami Chand before she started to pay the Accused her rent money from October 2004. These prosecution evidence itself satisfies the court, that the accused was not the landlord or the person who let this premises to the complainant and increased the rent on 1st of July 2004.
    
11. The prosecution contention of "any person" does not include any person who collects the rent, but its only includes any person who let the premises. There is no evidence to ascertain that the accused let this premises to the complainant.
    
12. In conclusion, I am satisfied that the prosecution has not successfully proved the charge against the accused person beyond reasonable doubt. I accordingly hold that the accused person is found not guilty for the offence of ""Failing to give 12 weeks written notice to the prices and income board for a proposed increase in rent" contrary to paragraph 2 of the Counter inflation (Notification of proposed increase in rent) Order 1996, Legal Notice 63/96 and Section 30 (1) and 32 of the Counter - Inflation Act Cap 73 and acquitted from the same.
    
13. 28 days to appeal.
    

On this 30th day of October 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.