R. Parimala Bai Vs. Bhaskar Narasimhaiah - Court Judgment

SooperKanoon Citationsooperkanoon.com/1194344
CourtKarnataka High Court
Decided OnJul-06-2018
Case NumberCRL.P 1387/2011
JudgeK.N.PHANEENDRA
AppellantR. Parimala Bai
RespondentBhaskar Narasimhaiah
Excerpt:
® 1 in the high court of karnataka, bengaluru dated this the6h day of july, 2018 before the hon’ble mr.justice k. n. phaneendra crl.p. no.1387/2011 between r parimala bai w/o b s krishnan aged about49years chief supervisor methods department aricraft division, hal bangalore complex bangalore-560 017 ... petitioner (by sri. vinay t. r. adv. for sri. c. v. sudhindra, adv.) and bhaskar narasimhaiah s/o late r sampath aged about62years r/at no.34, shivanada nagar5h cross, bangalore-560 079 ... respondent (by sri. prashanth u. t. adv.) this crl.p is filed under section482cr.p.c praying to quash the entire proceedings in c.c.no.22036/09 for the offences p/u/s138of n.i. act on the file of the xvi acmm, bengaluru. this crl.p coming on for hearing this day, the court made the following:2. order heard the learned counsel for the petitioner as well as the learned counsel for the respondent. perused the records.2. the petitioner has sought for quashing of the entire proceedings in cc no.22036/2009 registered against her for the offence punishable under section 138 of the negotiable instruments act [hereinafter referred to ‘act’ for short]..3. the sole ground that has been taken before this court seeking quashing of the above said proceedings is that - a prima facie meaningful reading and understanding of the complaint itself filed by the respondent – complainant before the trial court reveals that, there is no allegation in the complaint that there exists a legally recoverable debt from the accused. in the absence of such existence of the legally recoverable debt, section 138 of the act itself is not attracted. 3 4. in this regard, the learned counsel for the petitioner has drawn my attention to the entire paragraphs in the complaint averments to demonstrate that there was no legally recoverable debt even according to the complaint averments. when such being the case, there cannot be any presumption under negotiable instruments act particularly u/s.139 of the act. when presumption u/s.139 of negotiable instruments act cannot be raised in favour of the complainant and if it is not shown exfacie on the face of the complaint averments, that there exists any legally recoverable debt, then ingredients of section 138 of the negotiable instruments act are not attracted. therefore, on that ground, the complaint itself is liable to be quashed.5. per contra, learned counsel for the respondent submitted that, on meaningful reading and understanding of the complaint averments, there creates some doubt whether the accused has only acted as a commission agent for the purpose of getting job for the 4 son of the complainant and in such an eventuality, presumption u/s.139 of the act has to be raised and it is a matter of fact whether there exists any legally recoverable debt or not. therefore, on that ground, the proceedings cannot be quashed. the parties have to establish their case and the defence taken by the accused during the course of trial. therefore, that ground is not tenable and the proceedings cannot be quashed.6. on the above said rival contentions of the learned counsels, it is just and necessary for this court to ascertain whether the ingredients of section 138 of the act are available to the complainant in order to continue the prosecution against the accused. section 138 of the act says that – “where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the 5 bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this act, be punished with imprisonment for [a term which may be extended to two years]., or with fine which may extend to twice the amount of the cheque, or with both.” the rest of the provision may not be necessary so far as this case is concerned.7. in this context, section 139 of the negotiable instruments act also comes into play. section 139 of the act says that – “139. presumption in favour of holder – it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.]. 6 therefore, here, the debt or other liability has to be understood as existence of legally recoverable debt or liability so far as the accused is concerned.8. in this context, the learned counsel for the petitioner has relied upon various provisions under the indian contract act. the first one is section 23 of the indian contract act, which reads thus: “23. what consideration and objects are lawful, and what not - the consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the court regards it as immoral, or opposed to public policy. in each of these cases, the consideration or object of an agreement is said to be unlawful. every agreement of which the object or consideration is unlawful is void.” the illustration given at item (f) in fact, is almost similar to the factual aspects of this case, which says that – 7 “a promises to obtain for b an employment in the public service and b promises to pay 1,000/- rupees to a. the agreement is void, as the consideration for it is unlawful.” 9. the learned counsel for the petitioner in this regard also relied upon the decision reported in air1979madras 42, between n.v.p. pandian, and m.m. roy, wherein, the madras high court has held thus – “section 23 - public policy - amount paid for the purpose of securing seat in medical college and not as loan – agreement, if against public policy – amount, if refundable.” the madras high court also stress on the maxim in pari delicto potior est condition possidentis is founded on the principles of public policy, which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral contract, to recover it back, for the courts will not assist an illegal transaction in any respect. 8 10. in another ruling reported in 2007 crl.lj2262 in a case between virender singh and laxmi narain another, wherein the delhi high court considering section 23 of the indian contract act, 1872, with reference to section 138 of the negotiable instruments act, at head note c held as under: “section 138 of the negotiable instruments act, 1881, - dishonor of cheque - legally enforceable debt or liability - complainant paid sum of rs.80,000/- to accused for purpose of securing job for his nephew - as job was not made available to complainant’s nephew, he requested accused to return said amount – dishonour of cheque issued by petitioner towards said amount – agreement between petitioner and complainant for securing job is void, consideration therein being unlawful – parties being in pari delicto, therefore, said sum of rs.80,000/- cannot be recovered – thus, there did not exist any legally enforceable debt or liability for discharge of which it could be said that cheque in question was issued – consequently, s. 138 would not be attracted.” 9 11. in another ruling of the hon'ble apex court reported in air1974sc1892between kuju collieries ltd., vs. jharkhand mines ltd., and others wherein the hon'ble apex court referring to section 65 of the indian contract act, 1872, held that - agreement void ab initio – mining lease contrary to mineral regulations and void – parties in pari delicto – section 65 does not apply – nor does section 70 or 72.12. looking to the above said legal aspect, the court has to consider whether in this particular case, on facts, any legally recoverable debt was in existence or not.13. in this context, the learned counsel for the respondent also equally refuting the argument of the learned counsel for the petitioner has relied upon some of the decisions which are necessary to be considered by this court.14. in a decision reported in (2002) 2 scc642between a.v. murthy and. b.s. nagabasavanna 10 wherein the hon'ble apex court has observed that – “dishonour of cheque – revisional court, held, erred in quashing the complaint proceedings on the ground that the debt or liability was barred by limitation and therefore, there was no legally enforceable debt or liability as against the drawer – the plea of non- existence of such a debt or liability could be agitated as a defence before the trial court.” therefore, quashment is not proper.15. in another ruling reported in 2012 (2) dcr93of calcutta high court between bejoy prayers and state of west bengal & others, calcutta high court has held that - the complaint for dishonor of cheque - sought quashing of, legality – held – whether there is any legally recoverable debt or not, that is a pure question of facts and non existence of legally enforceable debt or not, that is a pure question of facts and essentially the defence of the accused which cannot be gone into while exercising the revisional jurisdiction. therefore, the petition was dismissed. 11 16. the learned counsel also relied upon another ruling reported in 2014(9) scale3between s. natarajan and sama dharman, wherein the hon'ble apex court has also laid down certain principles where issuance of cheque itself is a promise to pay time barred debt and referred to sections 4 and 6 of the ni act – for the purpose of invoking section 138 read with 142 of the negotiable instruments act, the cheque in question must be issued in respect of legally enforceable debt or other liability – court observed that the presumption mandated by section 139 of the negotiable instruments act includes a presumption that there exists a legally enforceable debt or other liability. the court has further observed that section 139 of the negotiable instruments act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. this court clarified that the reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. 12 17. on the basis of the above said rulings, the learned counsel for the respondent contended that the existence or non existence of a legally recoverable debt is a matter of fact that has to be established during the course of the trial. therefore, he tried to convince this court that petition is not maintainable and the same is liable to be dismissed.18. on careful perusal of the above said decisions, it is crystal clear that in order to attract section 138 of the negotiable instruments act, the ingredients of section 138 have to be established primarily by the complainant by pleading in the complaint with regard to the existence of any legally recoverable debt or liability on the part of the accused. even a semblance of doubt is raised with regard to the existence or non existence of legally recoverable debt, then also it should be established during the course of trial by means of pleading the facts and leading evidence. it is the defence taken up by the accused that there was no legally enforceable debt, and further that, it is not only 13 the defence, but also the court has to examine whether on complete reading of the complaint itself whether any offence u/s.138 of the negotiable instruments act is constituted or not. it is a very well recognized principle of criminal jurisprudence that, if on plain and meaningful reading of the complaint or the fir, the allegations made in the complaint or in the fir do not constitute any offence or under any penal law for the time being in force, the continuation of such prosecution amounts to abuse of process of law. therefore, the court has to examine without reference to the defence of the accused on the basis of the complaint itself whether there existed ingredients of section 138 of the negotiable instruments act. even in order to take cognizance and issuance of process against the accused, such exercise has to be done, to nip the case at the bud to avoid un-necessarily accused facing the trial.19. now, coming to the factual aspects of this case. it is clear from the complaint averments that it is the case of the complainant that, the complainant has a son 14 by name b. sharath, the accused and complainant were known to each other since long. the complainant met the accused and in fact the accused had assured to provide a job to his son in hal factory. in this context, the accused had requested the complainant to pay an amount of rs.10 lakhs and he demanded the same for the purpose of providing a job to the son of the complainant. in this context, it is stated that, on various occasions, the complainant has paid some amounts to him. as the accused could not get the job to the son of the complainant, the complainant approached the accused. then the accused again demanded for further amount for making payment to the officers. as per the demand, the complainant paid amount to him. in total, lot of amount has been paid to the accused for the purpose of securing job to the son of the complainant. as the accused was not able to secure the job in hal to the complainant’s son, the complainant demanded for repayment of the money. in that context, it is said that on 1.5.2009, the accused issued a cheque bearing no.262871 for a sum of rs.10 lakhs and on 15 presentation of the said cheque it came to be dishonoured on the ground of ‘funds insufficient’. after complying the other provisions of section 138 of the negotiable instruments, it appears the complaint came to be lodged.20. it is seen that, there are absolutely no allegations whatsoever that the accused has taken this money as a loan or a debt or as a liability at any point of time. it is clear cut case of the complainant that, he has paid money for the purpose of securing job for his son, even without examining whether the accused has got any authority to provide job to his son or not and what is the procedure that is required to be followed by the hal factory for the purpose of selecting any candidate for the purpose of providing any job. therefore, without examining anything, the complainant himself has entered into a void contract with the accused and paid money as against the public policy for illegal purpose. 16 21. as could be seen from the rulings cited by the learned counsel for the petitioner and the provision of section 23 of the indian contract act, it is crystal clear that if on the basis of a void contract and particularly if the consideration is illegal, and consideration is for immoral or illegal purposes or which is against the public policy, then the whole transaction becomes void, the consideration paid in such contract becomes an illegal consideration and when it is said it is legal or unlawful consideration, it can not be at any stretch of imagination called as a legally recoverable debt.22. now, coming to the submission made by the learned counsel for the respondent with the help of the above said decisions cited, the cases have been considered with regard to the averments made in the complaint and the complainant has specifically stated with regard to the existence of the legally recoverable debt in the complaint. on the other hand, it is only the defence taken up by the accused that there exists no legally recoverable debt. therefore, in that context, the 17 courts have held that it requires evidence and the defence taken by the accused has to be established during the course of full dressed trial.23. another point which has been raised in those decisions is with regard to the debt which is barred by limitation. if the debt is barred by limitation but if it cannot be outrightly said that it is an illegal transaction or it is an illegal consideration, then even if the debt is time barred, if the accused is willing to pay that amount, there is no bar for the complainant to receive that amount. therefore, the illegal consideration or time barred debt stands on a different footing and illegal consideration is only barred from recovery. therefore, the said ruling cited by the learned counsel is not presently helpful to the complainant herein.24. so far as section 139 of the negotiable instruments act is concerned, of course there is a presumption under law. initially the court has to draw presumption in favour of the complainant if on plain reading of the complaint, the court is of the opinion that 18 the complainant has pleaded that there existed a legally recoverable debt and in support of that contention. the presumption has to be raised in favour of the complainant regarding existence of legally recoverable debt. but, if an illegal consideration is relied upon by the complainant himself, then such presumption u/s.139 of the negotiable instruments act, cannot be raised at the initial stages also. it all depends upon the facts and circumstances of each case on the basis of the pleadings of the parties.25. section 138 of the negotiable instruments act mandates that, there should be an existence of legally recoverable debt and in order to attract section 138 of the negotiable instruments act, the party has to plead with regard to the existence of legally recoverable debt. if he pleads with regard to the existence of the legally recoverable debt u/s.138 of the act, then only presumption u/s.139 of the act can be raised in favour of the complainant. if the complainant himself does not plead the existence of legally recoverable debt, then 19 there is no question of raising any initial presumption in favour of the complainant. therefore, even considering the provisions of section 139 of the negotiable instruments act, there is no question of accused rebutting the presumption unless the presumption is raised in favour of the complainant. if the court for any reason comes to the conclusion that the ingredients of section 138 of the negotiable instruments act, are not made out, the court cannot take cognizance of such matter, and for the purpose of calling the accused to appear before the court and contest the proceedings.26. under the above said facts and circumstances of the case and also the decisions relied upon by the parties, in my opinion, it is a fit case based on the factual aspects and legal aspects, to quash the complaint.27. the learned magistrate in fact at the time of taking cognizance of the private complaint has to examine meticulously the contents of the complaint. it is more than several times made clear that when ever a 20 complaint is filed, the learned magistrate has to look into the complaint, he should not mechanically take cognizance or refer the matter to the police for investigation. the learned magistrate has to look into the complaint averments for the purpose of ascertaining whether the court has got jurisdiction to try that matter. secondly, the contents of the complaint even meaningfully understood allegations made therein constitute any offence. only for those offences, where the allegations constitute offence the magistrate is entitled to take cognizance and proceed with the matter. otherwise, the issuance of summons to the accused virtually violates the constitutional right of liberty, which is guaranteed to the citizens of the country. therefore, under the facts and circumstances of the case, and the legal aspects as discussed above, i am of the opinion the petition deserves to be allowed and the proceedings before the court below deserves to be quashed. hence, the following:21. order the petition is allowed. consequently, all further proceedings in cc no.22036/2009 for the offence punishable under section 138 of the negotiable instruments act pending on the file of the 16th acmm, bengaluru are hereby quashed. pl* sd/- judge
Judgment:

® 1 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE6H DAY OF JULY, 2018 BEFORE THE HON’BLE MR.JUSTICE K. N. PHANEENDRA CRL.P. NO.1387/2011 BETWEEN R PARIMALA BAI W/O B S KRISHNAN AGED ABOUT49YEARS CHIEF SUPERVISOR METHODS DEPARTMENT ARICRAFT DIVISION, HAL BANGALORE COMPLEX BANGALORE-560 017 ... PETITIONER (BY SRI. VINAY T. R. ADV. FOR SRI. C. V. SUDHINDRA, ADV.) AND BHASKAR NARASIMHAIAH S/O LATE R SAMPATH AGED ABOUT62YEARS R/AT NO.34, SHIVANADA NAGAR5H CROSS, BANGALORE-560 079 ... RESPONDENT (BY SRI. PRASHANTH U. T. ADV.) THIS CRL.P IS FILED UNDER SECTION482CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.22036/09 FOR THE OFFENCES P/U/S138OF N.I. ACT ON THE FILE OF THE XVI ACMM, BENGALURU. THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

2. ORDER

Heard the learned counsel for the petitioner as well as the learned counsel for the respondent. Perused the records.

2. The petitioner has sought for quashing of the entire proceedings in CC No.22036/2009 registered against her for the offence punishable under Section 138 of the Negotiable Instruments Act [hereinafter referred to ‘Act’ for short]..

3. The sole ground that has been taken before this court seeking quashing of the above said proceedings is that - a prima facie meaningful reading and understanding of the complaint itself filed by the respondent – complainant before the Trial Court reveals that, there is no allegation in the complaint that there exists a legally recoverable debt from the accused. In the absence of such existence of the legally recoverable debt, Section 138 of the Act itself is not attracted. 3 4. In this regard, the learned counsel for the petitioner has drawn my attention to the entire paragraphs in the complaint averments to demonstrate that there was no legally recoverable debt even according to the complaint averments. When such being the case, there cannot be any presumption under Negotiable Instruments Act particularly u/s.139 of the Act. When presumption u/s.139 of Negotiable Instruments Act cannot be raised in favour of the complainant and if it is not shown exfacie on the face of the complaint averments, that there exists any legally recoverable debt, then ingredients of Section 138 of the Negotiable Instruments Act are not attracted. Therefore, on that ground, the complaint itself is liable to be quashed.

5. Per contra, learned counsel for the respondent submitted that, on meaningful reading and understanding of the complaint averments, there creates some doubt whether the accused has only acted as a commission agent for the purpose of getting job for the 4 son of the complainant and in such an eventuality, presumption u/s.139 of the Act has to be raised and it is a matter of fact whether there exists any legally recoverable debt or not. Therefore, on that ground, the proceedings cannot be quashed. The parties have to establish their case and the defence taken by the accused during the course of trial. Therefore, that ground is not tenable and the proceedings cannot be quashed.

6. On the above said rival contentions of the learned counsels, it is just and necessary for this court to ascertain whether the ingredients of Section 138 of the Act are available to the complainant in order to continue the prosecution against the accused. Section 138 of the Act says that – “Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the 5 bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years]., or with fine which may extend to twice the amount of the cheque, or with both.” The rest of the provision may not be necessary so far as this case is concerned.

7. In this context, Section 139 of the Negotiable Instruments Act also comes into play. Section 139 of the Act says that – “139. Presumption in favour of holder – It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.]. 6 Therefore, here, the debt or other liability has to be understood as existence of legally recoverable debt or liability so far as the accused is concerned.

8. In this context, the learned counsel for the petitioner has relied upon various provisions under the Indian Contract Act. The first one is Section 23 of the Indian Contract Act, which reads thus: “23. What consideration and objects are lawful, and what not - The consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.” The illustration given at Item (f) in fact, is almost similar to the factual aspects of this case, which says that – 7 “A promises to obtain for B an employment in the public service and B promises to pay 1,000/- rupees to A. The agreement is void, as the consideration for it is unlawful.” 9. The learned counsel for the petitioner in this regard also relied upon the decision reported in AIR1979Madras 42, between N.V.P. Pandian, and M.M. Roy, wherein, the Madras High Court has held thus – “Section 23 - Public Policy - Amount paid for the purpose of securing seat in Medical College and not as loan – Agreement, if against public policy – Amount, if refundable.” The Madras High Court also stress on the maxim in pari delicto potior est condition possidentis is founded on the principles of public policy, which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral contract, to recover it back, for the Courts will not assist an illegal transaction in any respect. 8 10. In another ruling reported in 2007 CRL.LJ2262 in a case between Virender Singh and Laxmi Narain another, wherein the Delhi High Court considering Section 23 of the Indian Contract Act, 1872, with reference to Section 138 of the Negotiable Instruments Act, at Head Note C Held as under: “Section 138 of the Negotiable Instruments Act, 1881, - Dishonor of cheque - Legally enforceable debt or liability - Complainant paid sum of Rs.80,000/- to accused for purpose of securing job for his nephew - As job was not made available to complainant’s nephew, he requested accused to return said amount – Dishonour of cheque issued by petitioner towards said amount – Agreement between petitioner and complainant for securing job is void, consideration therein being unlawful – Parties being in pari delicto, therefore, said sum of Rs.80,000/- cannot be recovered – Thus, there did not exist any legally enforceable debt or liability for discharge of which it could be said that cheque in question was issued – Consequently, S. 138 would not be attracted.” 9 11. In another ruling of the Hon'ble Apex Court reported in AIR1974SC1892between Kuju Collieries Ltd., Vs. Jharkhand Mines Ltd., and others wherein the Hon'ble Apex Court referring to Section 65 of the Indian Contract Act, 1872, held that - Agreement void ab initio – Mining lease contrary to mineral regulations and void – Parties in pari delicto – Section 65 does not apply – Nor does Section 70 or 72.

12. Looking to the above said legal aspect, the court has to consider whether in this particular case, on facts, any legally recoverable debt was in existence or not.

13. In this context, the learned counsel for the respondent also equally refuting the argument of the learned counsel for the petitioner has relied upon some of the decisions which are necessary to be considered by this court.

14. In a decision reported in (2002) 2 SCC642between A.V. Murthy and. B.S. Nagabasavanna 10 wherein the Hon'ble Apex Court has observed that – “Dishonour of cheque – Revisional court, held, erred in quashing the complaint proceedings on the ground that the debt or liability was barred by limitation and therefore, there was no legally enforceable debt or liability as against the drawer – The plea of non- existence of such a debt or liability could be agitated as a defence before the trial Court.” Therefore, quashment is not proper.

15. In another ruling reported in 2012 (2) DCR93of Calcutta High Court between Bejoy Prayers and State of West Bengal & Others, Calcutta High Court has held that - The complaint for dishonor of cheque - Sought quashing of, Legality – Held – whether there is any legally recoverable debt or not, that is a pure question of facts and non existence of legally enforceable debt or not, that is a pure question of facts and essentially the defence of the accused which cannot be gone into while exercising the revisional jurisdiction. Therefore, the petition was dismissed. 11 16. The learned counsel also relied upon another ruling reported in 2014(9) SCALE3between S. Natarajan and Sama Dharman, wherein the Hon'ble Apex Court has also laid down certain principles where issuance of cheque itself is a promise to pay time barred debt and referred to Sections 4 and 6 of the NI Act – For the purpose of invoking Section 138 read with 142 of the Negotiable Instruments Act, the cheque in question must be issued in respect of legally enforceable debt or other liability – Court observed that the presumption mandated by Section 139 of the Negotiable Instruments Act includes a presumption that there exists a legally enforceable debt or other liability. The Court has further observed that Section 139 of the Negotiable Instruments Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. This Court clarified that the reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. 12 17. On the basis of the above said rulings, the learned counsel for the respondent contended that the existence or non existence of a legally recoverable debt is a matter of fact that has to be established during the course of the trial. Therefore, he tried to convince this court that petition is not maintainable and the same is liable to be dismissed.

18. On careful perusal of the above said decisions, it is crystal clear that in order to attract Section 138 of the Negotiable Instruments Act, the ingredients of Section 138 have to be established primarily by the complainant by pleading in the complaint with regard to the existence of any legally recoverable debt or liability on the part of the accused. Even a semblance of doubt is raised with regard to the existence or non existence of legally recoverable debt, then also it should be established during the course of trial by means of pleading the facts and leading evidence. It is the defence taken up by the accused that there was no legally enforceable debt, and further that, it is not only 13 the defence, but also the court has to examine whether on complete reading of the complaint itself whether any offence u/s.138 of the Negotiable Instruments Act is constituted or not. It is a very well recognized principle of criminal jurisprudence that, if on plain and meaningful reading of the complaint or the FIR, the allegations made in the complaint or in the FIR do not constitute any offence or under any penal law for the time being in force, the continuation of such prosecution amounts to abuse of process of law. Therefore, the court has to examine without reference to the defence of the accused on the basis of the complaint itself whether there existed ingredients of Section 138 of the Negotiable Instruments Act. Even in order to take cognizance and issuance of process against the accused, such exercise has to be done, to nip the case at the bud to avoid un-necessarily accused facing the trial.

19. Now, coming to the factual aspects of this case. It is clear from the complaint averments that it is the case of the complainant that, the complainant has a son 14 by name B. Sharath, the accused and complainant were known to each other since long. The complainant met the accused and in fact the accused had assured to provide a job to his son in HAL factory. In this context, the accused had requested the complainant to pay an amount of Rs.10 lakhs and he demanded the same for the purpose of providing a job to the son of the complainant. In this context, it is stated that, on various occasions, the complainant has paid some amounts to him. As the accused could not get the job to the son of the complainant, the complainant approached the accused. Then the accused again demanded for further amount for making payment to the Officers. As per the demand, the complainant paid amount to him. In total, lot of amount has been paid to the accused for the purpose of securing job to the son of the complainant. As the accused was not able to secure the job in HAL to the complainant’s son, the complainant demanded for repayment of the money. In that context, it is said that on 1.5.2009, the accused issued a cheque bearing No.262871 for a sum of Rs.10 lakhs and on 15 presentation of the said cheque it came to be dishonoured on the ground of ‘funds insufficient’. After complying the other provisions of Section 138 of the Negotiable Instruments, it appears the complaint came to be lodged.

20. It is seen that, there are absolutely no allegations whatsoever that the accused has taken this money as a loan or a debt or as a liability at any point of time. It is clear cut case of the complainant that, he has paid money for the purpose of securing job for his son, even without examining whether the accused has got any authority to provide job to his son or not and what is the procedure that is required to be followed by the HAL factory for the purpose of selecting any candidate for the purpose of providing any job. Therefore, without examining anything, the complainant himself has entered into a void contract with the accused and paid money as against the public policy for illegal purpose. 16 21. As could be seen from the rulings cited by the learned counsel for the petitioner and the provision of Section 23 of the Indian Contract Act, it is crystal clear that if on the basis of a void contract and particularly if the consideration is illegal, and consideration is for immoral or illegal purposes or which is against the public policy, then the whole transaction becomes void, the consideration paid in such contract becomes an illegal consideration and when it is said it is legal or unlawful consideration, it can not be at any stretch of imagination called as a legally recoverable debt.

22. Now, coming to the submission made by the learned counsel for the respondent with the help of the above said decisions cited, the cases have been considered with regard to the averments made in the complaint and the complainant has specifically stated with regard to the existence of the legally recoverable debt in the complaint. On the other hand, it is only the defence taken up by the accused that there exists no legally recoverable debt. Therefore, in that context, the 17 courts have held that it requires evidence and the defence taken by the accused has to be established during the course of full dressed trial.

23. Another point which has been raised in those decisions is with regard to the debt which is barred by limitation. If the debt is barred by limitation but if it cannot be outrightly said that it is an illegal transaction or it is an illegal consideration, then even if the debt is time barred, if the accused is willing to pay that amount, there is no bar for the complainant to receive that amount. Therefore, the illegal consideration or time barred debt stands on a different footing and illegal consideration is only barred from recovery. Therefore, the said ruling cited by the learned counsel is not presently helpful to the complainant herein.

24. So far as Section 139 of the Negotiable Instruments Act is concerned, of course there is a presumption under law. Initially the court has to draw presumption in favour of the complainant if on plain reading of the complaint, the court is of the opinion that 18 the complainant has pleaded that there existed a legally recoverable debt and in support of that contention. The presumption has to be raised in favour of the complainant regarding existence of legally recoverable debt. But, if an illegal consideration is relied upon by the complainant himself, then such presumption u/s.139 of the Negotiable Instruments Act, cannot be raised at the initial stages also. It all depends upon the facts and circumstances of each case on the basis of the pleadings of the parties.

25. Section 138 of the Negotiable Instruments Act mandates that, there should be an existence of legally recoverable debt and in order to attract Section 138 of the Negotiable Instruments Act, the party has to plead with regard to the existence of legally recoverable debt. If he pleads with regard to the existence of the legally recoverable debt u/s.138 of the Act, then only presumption u/s.139 of the Act can be raised in favour of the complainant. If the complainant himself does not plead the existence of legally recoverable debt, then 19 there is no question of raising any initial presumption in favour of the complainant. Therefore, even considering the provisions of Section 139 of the Negotiable Instruments Act, there is no question of accused rebutting the presumption unless the presumption is raised in favour of the complainant. If the court for any reason comes to the conclusion that the ingredients of Section 138 of the Negotiable Instruments Act, are not made out, the court cannot take cognizance of such matter, and for the purpose of calling the accused to appear before the court and contest the proceedings.

26. Under the above said facts and circumstances of the case and also the decisions relied upon by the parties, in my opinion, it is a fit case based on the factual aspects and legal aspects, to quash the complaint.

27. The learned Magistrate in fact at the time of taking cognizance of the private complaint has to examine meticulously the contents of the complaint. It is more than several times made clear that when ever a 20 complaint is filed, the learned Magistrate has to look into the complaint, he should not mechanically take cognizance or refer the matter to the police for investigation. The learned Magistrate has to look into the complaint averments for the purpose of ascertaining whether the court has got jurisdiction to try that matter. Secondly, the contents of the complaint even meaningfully understood allegations made therein constitute any offence. Only for those offences, where the allegations constitute offence the Magistrate is entitled to take cognizance and proceed with the matter. Otherwise, the issuance of summons to the accused virtually violates the constitutional right of liberty, which is guaranteed to the citizens of the country. Therefore, under the facts and circumstances of the case, and the legal aspects as discussed above, I am of the opinion the Petition deserves to be allowed and the proceedings before the court below deserves to be quashed. Hence, the following:

21. ORDER

The Petition is allowed. Consequently, all further proceedings in CC No.22036/2009 for the offence punishable under Section 138 of the Negotiable Instruments Act pending on the file of the 16th ACMM, Bengaluru are hereby quashed. PL* Sd/- JUDGE