Delhi District Court
Complainant vs . A. Srinivas Rao ; Instituted Under ... on 25 March, 2017
IN THE COURT OF SHRI SUMEET ANAND, METROPOLITAN
MAGISTRATE (N.I. Act), PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
Mrs. Madhuri Agarwal
W/o Sh. P.K. Agarwal
D185, Ground Floor, Saket,
New Delhi110017.
................. Complainant
Vs.
Mr. A. Srinivas Rao
Director New Era Services
Corporate Office
H48, Ground Floor,
South Extension, PartI,
New Delhi110049.
ALSO AT:
House No.201, 1st Floor
M.S. Ramaiha Institute of Engineering Road
Mathikeri,
Concept Comfort Apartments,
Bangaluru.
............. Accused persons
Old Case Number : 3267/1/11
New Case Number : 27615/16
Date of Institution of Case : 01.07.2011
Offence Complained of : U/s 138 NI Act
Plea of the Accused : Pleaded not guilty
CC No.27615 /16 Page 1 of 21
Arguments Heard on : 24.03.2017
Final Order : Acquittal
Date of Judgment : 25.03.2017
:: JUDGMENT ::
1.This judgment will decide and dispose off criminal complaint case number 27615/16 (Old CC No.3267/1) titled as Madhuri Aggarwal Vs. A. Srinivas Rao ; instituted under Section 138 of the Negotiable Instruments Act, 1881 (for short N.I. Act) for the dishonour of one cheque; for a sum of Rs 2,50,000/ (Two Lakhs Fifty Thousand Only) (Ex. CW 1/C).
Relevant judicial proceedings:
2. This case was instituted and first received in this court on 01.07.2011. After taking cognizance of offence accused was summoned and on 08.07.2013 formal notice of accusation under section 251 Cr. P.C was served upon him, to which he pleaded not guilty and claimed trial.
His plea of defence was separately recorded. Upon perusal of his plea of defence this court opined that he has raised a plausible defence and accordingly listed the matter for CE, recalling the complainant for crossexamination.
3. However, despite opportunities accused did not take steps to cross examine the complainant. He took several adjournments at the same stage and finally withdrew from appearing before the court and was consequently declared absconder on 03.07.2015.
CC No.27615 /16 Page 2 of 214. It is pertinent to note herein, in the intervening period, on 21.05.2015 accused made an 'On Oath' statement before the court assuring that he will make the payment of the cheque amount i.e. Rs.2.50 lakhs to the complainant on, or before 30.07.2014; it is thereafter that he withdrew from appearing before the court.
5. In pursuance to apprehend the absconder accused FIR No.105/16 was registered at Police Station Barakhamba Road, under Section 174A IPC. Consequently, the absconder accused was apprehended and was produced before this court upon execution was production warrants and was formally also taken into custody in this case. However subsequently he was admitted to bail, but committed back to Judicial Custody as no bail bonds were furnished. However, subsequently upon completion of trial he was admitted to bail upon his personal bond itself, after getting his address mentioned on the personal bond verified.
Complainants case:
6. The son of complainant Abhinav Agarwal (CW2) applied in Indian School of Business, Hyderabad (hereinafter referred to as "ISB") and received an interview call from the institute in the month of January, 2010. Accused is alleged to have been running an institute in the name and style of M/s New Era Services assuring bright future to students by getting them admitted in premier institutes under the Management Quota.
7. It is alleged that accused approached son of the complainant and CC No.27615 /16 Page 3 of 21 represented him that he has good connections with the Management of 'ISB' Hyderabad and claimed that he can help in getting a confirmed admission in the said institute under Management Quota for which he stated that the complainant will have to pay a sum of Rs.2.50 lakhs towards 'Capitation Fee' and Rs.20,000/ as his 'service charges' as well as other payments at appropriate time which shall be refundable within 34 days if admission is not confirmed.
8. It is the admitted case of the complainant that subject to assurances of accused given to her son, for securing a confirmed admission under Management Quota, complainant issued a cheque for a sum of Rs.2.70 lakhs in favor of the accused.
9. It is further contended by the complainant that in March, 2010 her son went to ISB, Hyderabad for interview where accused met him and further assured that he will get the admission letter after few days and further demanded a sum of Rs.2.58 lakhs from her son towards the hostel accommodation charges, which were paid to him by son of complainant in cash.
10. The grievance of the complainant is that despite making a total payment of Rs.5.28 lakhs, (Rs. 2.70 lakhs by cheque and Rs. 2.58 Lakhs in cash); out of which Rs. 2.50 lakhs were for payment of Capitation Fee; Rs. 20,000/ were towards service charges of accused and Rs. 2.58 lakhs were towards deposit of hostel fee, her son did not get admission under Management Quota in IBS, CC No.27615 /16 Page 4 of 21 Hyderabad. Moreover, upon subsequent enquiry it was revealed that no money was ever deposited on behalf of son of complainant under Management Quota, or towards hostel charges in ISB Hyderabad as assured by the accused.
11. It is further contended that when the husband of the complainant threatened the accused with lodging a complaint against him with police, then he out of the total amount of Rs.5.28 lakhs received, paid Rs.2.45 lakhs in cash by depositing amounts in complainant's bank account as well as in the bank account of her son Abhinav Agarwal till August, 2010. It is also contended that the accused further promised to pay the balance amount of Rs.2.83 lakhs after three month.
12. It is the case of the complainant that accused in partial discharge of his remaining liability for Rs. 2.83 Lakhs, issued the dishonoured cheque in question. However, upon its presentation on three occasions, every time it was dishonored and returned with remarks "Funds Insufficient." Respective returning memos dated 28.12.2010 (Ex. CW 1/D), 06.01.2011 (Ex. CW 1/E) & 28.04.2011 (Ex. CW 1/F) are on record.
13. It is upon the dishonour of the cheque for third time i.e. on 28.04.2011, the complainant set the legal course into motion by issuing legal demand notice dated 16.05.2011 (EX CW 1/G) to the accused, calling upon him to make the payment of the amount of the dishonoured cheque, i.e. Rs. 2.50 Lakhs.
CC No.27615 /16 Page 5 of 2114.The grievance of the complainant is that despite compliance of all statutory requirements, within prescribed period, the accused has failed to make the payment of the amount of the dishonoured cheque in question. Hence, this complaint.
15.After apprehension of absconder accused the case proceeded further on merits. The complainant led post summoning evidence by adopting her evidence by way of affidavit dated 01.07.2011 (EX CW1/1); also, led in presummoning evidence. In support of its case, the complainant also examined her son Abinav Aggarwal as CW2, his evidence by way of affidavit dated 14.02.2017 is EX CW 2/A.
16.The accused being in judicial custody at the relevant time was provided with the services of free legal aid. CW1 and CW2 were cross examined by the learned legal aid counsel for the accused.
17. Post complainant's evidence, statement of accused under section 313 Cr.P.C was recorded, wherein all incriminating evidences and circumstances appearing against him were put to him and he was given an opportunity to afford an explanation.
18. The accused in his defence did not lead any documentary evidence, but got himself examined as DW1. Other than his own testimony he did not lead any further defence evience. He was further subjected to cross examination by counsel for the complainant.
19.This court has heard the parties as well as their respective counsels at length and has perused the entire record. This court has also given its anxious consideration to the admitted and controverted CC No.27615 /16 Page 6 of 21 facts of the case, evidences lead and the legal provisions involved.
20. Before adverting to evaluate the evidence lead by the contesting parties, considering the admitted case of the complainant, a legal question calling upon to be discussed is, Whether the dishonoured cheque in question can be taken to have been issued for a legally enforceable debt or other liability?
21.One of the essential prerequisite to attract the rigor of section 138 of the NI Act is the issuance of the dishonoured cheque in discharge, in whole or in part, of any debt or other liability. As per explanation appended to section 138 of the NI Act, for the purpose of this section (138 NI Act) debt or other liability means only a legally enforceable debt or other liability.
22. According to paragraph 4 of the complaint, the son of the complainant Abhinav Aggarwal applied in IBS, Hydrabad and received an interview call from the institute in the month of January, 2010. It is in the subsequent paragraph, contended by complainant that the accused approached the son of the complainant Abinav Aggarwal and represented that he has good connections with the management of IBS, Hyderabad and that he can help in getting a confirmed admission in the said institute under the Management Quota for which he will have to pay Rs. 2.50 Lakhs towards Capitation Fee and Rs. 20,000 (twenty thousand) to the accused as his service charge.
23. Thereafter, in paragraph 6 of the complaint it is contended that upon the representation and assurance given by the accused to son CC No.27615 /16 Page 7 of 21 of the complainant of securing a confirmed admission in Management Quota, the complainant issued a cheque for a sum of Rs. 2.70 lakhs in favor of the accused for admission in IBS Hyderabad.
24. Conjoint reading of para's 4, 5 and 6 of the complaint leave no iota of doubt that the complainant issued the cheque for a sum of Rs. 2.70 lakhs to the accused for securing an admission for her son in IBS Hyderabad in Management Quota; out of which Rs. 2.50 lakhs were for payment of "Capitation fee" to the said college and Rs. 20,000/ (twenty thousand) as service charge to the accused.
25. Herein, it is relevant to explore and understand the meaning of the term 'Capitation Fee' particularly in refence to an educational institution. A simple internet search for 'Capitation Fee' provides the following result;
"CAPITATION FEE refers to an illegal transaction whereby an organization that provides (or supposedly provides) educational services collects a fee that is more than what is approved by regulatory norms."
26. The Hon'ble Apex Court in Modern Dental College and Research Centre and Ors. Versus State of Madhya Pradesh (2016) 7 SCC 353, through Constitutional Bench, after reiterating the principles established in landmark judgments, as Unni Krishnan's case, TMA Pai Foundation case, P.A. Inamdar vs. State of Maharashtra, again observed that demand of Capitation Fee by an educational institution CC No.27615 /16 Page 8 of 21 is illegal.
The Apex Court observed that commercialization and exploitation is not permissible in education sector and institutions must run on no profitnoloss basis. It also observed that, "though education is now treated as an 'occupation' and, thus, has become a Fundamental Right guaranteed under Article 19 (1)(g) of the Constitution, at the same time shackles are put in so far as this particular occupation is concerned, which is 'Noble.' Therefore, profiteering and commercialization are not permitted and no Capitation Fee can be charged. The admission of students has to be on merit and not at the whims and fancies of the educational institutions." The Apex Court also stressed on ensuring that the admission process must meet the triple test of transparency, fairness and non exploitativeness.
27. As in P.A. Inamdar's case, the Apex court herein again directed the government to step in to regulate the educational sector and to promote merit; curb malpractices and secure merit based admissions in a transparent manner. Many states have also enacted AntiCapitation fee laws, for instance Delhi Professional Colleges / Institutions (Prohibition of capitation fee Regulation of Administration, Fixation of NonExploitative fee and other Measures) Act, 2007 has been enacted. The validity of this law has been upheld by the Hon'ble Apex Court in the case of Indian Medical Association Vs. Union Of India & Others (2011) 7 SCC 179.
28. Hence, from the very meaning of Capitation fee as well as CC No.27615 /16 Page 9 of 21 from the view taken by the Hon'ble Apex court qua 'Capitation Fee', there is no iota of doubt that charging Capitation fee is illegal and opposed to the public policy.
29. Although, there is nothing on record to this effect, however during the course of Final Arguments upon the issue of illegality of Capitation Fee, it was argued that it a vice too rampant throughout the country and without paying 'Capitation Fee', to secure an admission is gravely difficult and in order to safeguard future of their children parents do resort to paying 'Capitation Fee'.
30. In the most humble opinion of this court, there are several vices prevalent in the society, if an individual, all by himself cannot eradicate them, it does not mean that he will adopt them, especially for its own personal benefit. In further opinion of this court, vices opposed to public policy like one of Capitation fee can be totally eradicated from the society only when individual's start shunning adopting of these vices for their personal gains.
31. Further to ascertain whether the dishonoured cheque in question can be taken to have been issued for discharge of a legally enforceable debt or other liability the background of actual transaction between the parties must be considered on the threshold of section 23 of the Indian Contract Act, 1872. It reads as follows;
"S. 23 What consideration and objects are awful, and what not. The consideration or object of an agreement is lawful, unless It is forbidden by law; or CC No.27615 /16 Page 10 of 21 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."
32. In the opinion of this court, it being an admitted case of the complainant that she gave Rs. 2.70 Lakhs to the accused, out of which Rs. 2.50 lakhs were to be paid as Capitation Fee at IBS, Hyderabad for admission of son of complainant in Management Quota and Rs. 20,000/ were service charges for the accused, this payment made by the complainant to the accused under no circumstances can be regarded as a lawful consideration. Moreover, the object sought to be achieved against this payment also cannot be regarded as lawful. Accordingly, the agreement between the parties being directly opposed to section 23 of the Contract Act never resulted in any legally binding contract between them.
33. It is held by the Hon'ble Kerala High Court in J. Daniel Vs. State of Kerala 2006 (1) LRC 408 (Kerala) that the execution of the cheque is not sufficient to constitute an offence punishable under section 138 of the NI Act, unless it is proved that the debt or other liability, for which the cheque is purportedly issued, is a legally enforceable one. It is also held in this case that, "the term 'enforceable' is defined as "not invalid as contrary to public policy because bargaining contrary to the law as venue, word 'enforceable' not necessarily imply actual CC No.27615 /16 Page 11 of 21 force or coercion but meaning to be executed and to cause to take effect". Explanation to Section 138 clearly says that for the purpose of the section "debt or other liability" means legally enforceable debt or other liability. Hence, only a claim arising out of an enforceable debt or other liability will constitute an offence under section 138 N.I. Act.
34. By virtue of Section 139 of the N.I. Act, the court has to raise the mandatory presumption that the dishonoured cheque in question was issued for the discharge, in whole or in part, of any debt or other liability. However, there is no such mandatory presumption that the debt or other liability was legally enforceable debt or other liability. Accordingly, the onus is squarely upon the complainant to prove that the cheque was issued for a legally enforceable debt or other liability and wherein he fails to prove this, inasmuch as one vital ingredient of Section 138 N.I. Act does not stand fulfilled.
35. To arrive at the conclusion, whether the dishonoured cheque in question can be taken to have been issued in discharge of a legally enforceable debt or other liability or not, the doctrine of legal maxim "pari delicto portior est conditio defendantis" which lays down the rule that the courts will refuse to enforce an illegal agreement at the instance of a person who himself is a party to an illegality or fraud, cannot be overlooked. This doctrine of "pari delicto portior est conditio defendantis" carries with it the following three exceptions;
a) Where the illegal purpose has not yet been substantially CC No.27615 /16 Page 12 of 21 carried into effect before it is sought to recover the money paid or goods delivered in furtherance of it;
b) Where the plaintiff is not in pari delicto with the defendant;
c) Where the plaintiff does not have to rely on the illegality to make out his claim;
36. Considering the doctrine of pari delicto, in light of the admitted case of the complainant, this court is of the considered opinion that complainants' case does not fall within the corners of any of the exceptions to the doctrine.
37. It is the admitted case of the complainant that she gave money to the accused for making payment of Capitation Fee for securing admission of her son in ISB, Hyderabad under the Management Quota.
Whether the son of the complainant got admission, or not, is not the question before this court. Rather, if he would have so got admitted, then the situation to institute the present complaint case would not have arisen at all. It is because despite making payment for Capitation Fee as well as despite paying service charges to the accused, the accused failed to secure admission for son of complainant, and failed to return the entire amount paid by complainant, that this case has been instituted. Therefore, the illegal purpose i.e. securing admission in a college by making payment of Capitation Fee has been substantially carried out before the money paid thereunder is sought to be recovered; As the son of the complainant also faced interview at the said college, but CC No.27615 /16 Page 13 of 21 could not clear it. Therefore, the case of the complainant does not fall under the first exception to the doctrine of pari delicto.
38. It is also the admitted case of the complainant that accused represented himself of having close relations with the management of ISB, Hyderabad and assured that if capitation fee of Rs.2.50 lakhs is paid then he can secure an admission for son of the complainant. It is after making of this representation that the complainant paid Rs.2.50 lakhs to the accused and also paid Rs.20,000/ as his service charge to act as a conduit between the son of the complainant and the college. Therefore, the complainant was pari delicto with the accused in the illegal transaction. Therefore, the case of the complainant also does not fall under the second exception to the doctrine of pari delicto.
39. The complainant in his complaint has relied upon the transaction entered between itself and accused. The entire transaction has been given in the complaint as well as in the evidence by way of affidavit filed by the complainant. The averments pertaining to payment of money as Capitation Fee is the foundation of the complainant's case. Accordingly, the complainant to recover his money has relied upon the illegality to make out his claim. Therefore, the case of the complainant also does not fall within the third exception of the doctrine of pari delicto.
40. Hence, the transactions/agreement between the parties squarely falls within the four corners of doctrine of "pari delicto portior est CC No.27615 /16 Page 14 of 21 conditio defendantis", without attracting any exception thereof. Therefore, this court cannot enforce the illegal agreement between the parties at the instance of the complainant who is himself party to an illegality.
41. Furthermore, it is the allegation of the complainant that it made a total payment of Rs. 5.28 Lakhs to the accused. Out of this total payment the complainant has placed on record proof of payment of Rs. 2.70 Lakhs, which was made through cheque. Moreover, receipt of this amount is also admitted by the accused.
However, qua the alleged payment of Rs. 2.58 Lakhs in cash to the accused, allegedly made at Hyderabad by son of complainant to accused, when he went for interview, there is no documentary proof whatsoever. Moreover, all averments made by the complainant in her evidence by way of affidavit qua making cash payment of Rs. 2.58 Lakhs to the accused by her son at Hyderabad are squarely hit by the rule of 'Hearsay.'
42. The complainant has maintained the stand that payment of Rs. 2.58 lakh was made in cash by her son to the accused. It is not her case that she, from what all sources gave this amount to her son who inturn gave it to the accused. The best evidence qua cash payment made by the son of the complainant to accused at Hyderabad is the son of the complainant himself, who has been examined as CW2.
43. The evidence by way of affidavit dated 14.02.2017 of CW2 (EX CW2/A) is replica of that of CW1. CW2 has failed to lay down CC No.27615 /16 Page 15 of 21 circumstances under which he carried such a huge cash amount to Hyderabad, or under what circumstances he arranged such a huge sum from Hyderabad itself. It is contended that this amount of Rs. 2.58 Lakhs was paid in cash to the accused to make the payment of Hostel Fee. However, the complainant as well as CW2 (her son) have failed to bring on record the prospectus of the said college to even remotely show that the hostel fee of the college was what extent. The complainant as well as CW2 have also failed to make it clear, whether this amount intended for hostel fee was for one year or for the stay in hostel till the end of course.
44. It is the admitted case of the complainant that out of the total amount of Rs. 5.28 lakhs, the accused returned Rs. 2.45 lakhs by August, 2010. And it is for the remaining amount of Rs. 2.83 lakhs the accused issued the dishonoured cheque in question. With respect to this contention of the complainant, particularly in view of the fact that the accused duped the complainant, this court fails to appreciate that when the amount due was 2.83 Lakhs then why and under what circumstances the complainant agreed and accepted the cheque only for a sum of Rs. 2.50 lakhs. There is no explanation given by the complainant in this regards.
45. The accused during trial has categorically admitted his signatures and handwriting on the body of the cheque. However, accused defends by contending that the dishonoured cheque was issued by way of security to the complainant at the time of receiving Rs. 2.70 Lakhs.
CC No.27615 /16 Page 16 of 2146. Considering this defence raised by the accused in the light of admitted case of the complainant and considering failure on part of the complainant to give a reasonable explanation as to why he received / accepted a cheque for Rs. 2.50 Lakhs when as per its own case Rs. 2.83 lakhs were due, this court is of the opinion that preponderance of probability exist in the defence raised by the accused. As per complainants' own case, out of Rs. 2.70 lakhs given to accused, Rs. 2.50 lakhs were to be paid as Capitation Fee and Rs. 20,000/ were in any case to be given to the accused as his service charge. Hence, at stake were Rs. 2.50 lakhs, which in case of nonadmission had to be returned. Therefore, as per probability and course of human conduct, this court is of the opinion that the dishonoured cheque was issued by the accused to complainant as contended by the accused and not as alleged by the complainant.
47. Even if the allegation of the complainant is taken to be true and correct to its entirety and it is presumed that the son of the complainant actually gave Rs. 2.58 Lakhs in cash to the accused at Hyderabad; Moreover, even if it is presumed that the dishonoured cheque in question was issued by the accused in partial discharge of remaining amount to be paid to the complainant by him i.e. Rs 2.83 lakhs, as alleged by the complainant, even then, this court is of the opinion, that the rigor of section 138 NI Act is not attracted against the accused for the same reason that the dishonoured cheque cannot be said to have been issued for a legally enforceable debt or other liability.
48. It has already been discussed that section 23 of the Indian CC No.27615 /16 Page 17 of 21 Contract Act 1872 is attracted to the transaction entered into between the parties. Accordingly, in cases where section 23 of the Contract Act applies, if there are more connected transactions in furtherance of the same purpose, then section 24 of the Contract Act also applies. It reads as under;
S. 24. Agreements Void, if considerations and objects unlawful in part. If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.
49. Even if a person attempts to secure an admission by unfair means i.e. by making payment of Capitation Fee, even in such cases he must make other payments incidental to the admission, such as tuition fee, hostel fee etc. The primary object is to secure an admission, for which an unlawful consideration is given by way of Capitation fee. Therefore, as a part of single transaction i.e. securing admission a part of consideration becomes unlawful, then the entire agreement is void.
50. Although, there is nothing on record to substantiate that the son of the complainant actually made payment of Rs. 2.58 lakhs to the accused towards hostel fee, even if it is presumed that it was so made, then it was made for achieving an object, the part consideration of which was unlawful. Accordingly, the entire agreement became void and never advanced to become a binding contract between the parties.
CC No.27615 /16 Page 18 of 2151. As there was no binding contract ever conceived between the parties and the agreement between them being squarely hit by section 23 of the Contract Act, the case of the complainant does not fall under section 65 of the Contract Act, which provides for obligation of a person to return the advantage received under a void agreement. It reads as;
S. 65. Obligation of person who has received advantage under void agreement, or contract that becomes void. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it.
52. It is not Res Integra that demanding or paying Capitation Fee for securing admission in an educational institution is illegal and opposed to public policy. Hence, it is not the case where the agreement between the parties was discovered to be void. Securing admission at a higher level of education, other than on merit basis and other than regulatory policies, rather by practicing unfair means cannot be presumed to such which is not in knowledge of parties, particularly the complainant that it is illegal and opposed to public policy. Moreover, as the agreement was ab Inito void and was thus never elevated to a contract, the question of a contract becoming void does not arise at all.
CC No.27615 /16 Page 19 of 2153. Therefore, in the opinion of this court, even if the dishonoured cheque in question was issued by accused to the complainant as alleged by the complainant, even then for the forgoing reasons the accused cannot be said to be under obligation to pay back the complainant, essentially not by attracting the rigor of section 138 of the NI Act.
54. During the course of final arguments, learned counsel for the complainant argued with all force that as the accused has stated 'On Oath' before the court that he shall make the payment of the dishonoured cheque by the Next date of Hearing, it amounts to admission of guilt and on this count alone the accused deserves to be convicted. It is also contended that as the statement admitting to make payment has not been complied by the accused, therefore appropriate provisions of Contempt law are also attracted against him. This court has given its anxious consideration to this aspect of the argument of learned counsel for the complainant, but is not convinced.
55. As far as Section attraction of provisions of Contempt law are concerned, in the opinion of this court neither section 10, nor section 11 of the Contempt of Courts Act, 1971 is attracted. Moreover, the complainant has not shown any law to substantiate or support his arguments. It is also pertinent to note that, the issue of statement before the court on Oath by the accused, for the first time was agitated at the stage of final arguments. After the absconder accused was apprehended, the case proceeded on merits and this CC No.27615 /16 Page 20 of 21 issue was not at all raised by the complainant. This indeed reflects that the complainant itself was interested in proceeding with the matter on merits instead of compelling the accused to honour the statement made before the court.
56. Moreover, in the most humble opinion of this court, the scheme of Cr.P.C contemplates for administering Oath to the accused only under one circumstance i.e. upon his own application made in writing seeking permission to appear as a defence witness in his own defence. Apart from this, every statement of the accused during the course of enquiry or trial has to be without oath, i.e. to say without prejudice to his Fundamental Right against selfincrimination.
57. In view of the foregoing discussion, this court is of the considered opinion that the dishonoured cheque in question cannot be regarded as one issued in discharge of legally enforceable debt or other liability, accordingly one essential requisite of section 138 NI Act does not stand fulfilled and therefore the rigor of section 138 NI Act is not attracted against the accused. Accordingly, accused A. Sriniwas Rao is hereby Acquitted from the charge of dishonor of one cheque EX CW1/C for a sum of Rs. 2.50 Lakhs.
Announced in the open (SUMEET ANAND) court on 25th March, 2017 MM(N.I Act)/PHC/ND/25.03.2017 CC No.27615 /16 Page 21 of 21