Karnataka High Court
Smt Pavithra S @ Roopashree S vs Mahadevappa M on 21 October, 2022
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21 S T DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.1584 OF 2017
BETWEEN:
Smt. Pavithra S @ Roop ashree S.,
D/o Shankar,
W/o Sri Pradeep Kumar M.,
Aged about 26 years,
R/at No.54/3, 1 s t Main,
Swathantra Nagara,
Sriramp ura, Bengaluru-560021.
...Appellant
(By Sri N.Vinayak Kamath, Advocate)
AND:
Mahad evapp a M.,
S/o Late Mad shetty,
Aged about 55 years,
R/at No.217, Site No.30
Thung a Road 2 n d Cross,
Rag havendra Nag ara,
Mysuru-11.
...Respondent
(By Sri Ravi H.K., Advocate)
This Criminal Appeal is filed under Section 378(4)
Cr.P.C., praying to set asid e the judgment and order
dated 03.06.2017 passed in Crl.A.No.1159/2016 on
the file of the LXVI Additional City Civil and Sessions
Judge, Beng aluru and confirm the judgment of
conviction dated 06.09.2016 passed in
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C.C.No.9839/2013 on the file of the Learned XX
Additional Chief Metropolitan Mag istrate, Beng aluru.
This Criminal Appeal having been heard &
reserved on 28.09.2022, coming on for
pronouncement this d ay, the Court pronounced the
following:
JUDGMENT
This appeal is filed under section 378(4) of the Code of Criminal Procedure ('Cr.P.C.' for short) by the complainant in a proceeding for the offence punishable under section 138 of Negotiable Instruments Act ('N.I.Act' for short). The question that arises in this appeal is whether the learned Sessions Judge correctly applied section 23 of the Indian Contract Act for allowing the appeal filed before him under section 374(3) of Cr.P.C. for reversing the judgment of conviction passed by the Magistrate.
2. If the events are briefly traced, the marriage between the complainant and Pradeep Kumar, the son of the accused was held on :: 3 ::
21.10.2012. Their marriage was very short lived, they stayed together only for three days. Then on 5.11.2012, the complainant and Pradeep Kumar entered into a Memorandum of Understanding (Mou) as per Ex.P.6 for dissolving their marriage.
One of the stipulations of the MoU was that the accused agreed to return the marriage expenses of Rs.5,00,000/- to the complainant and in that regard he issued a cheque (Ex.P.1) bearing No.217264 dated 5.1.2013 for Rs.5,00,000/- to the complainant. It was a post- dated cheque. When it was presented to the bank for encashment, it was not honoured because of stop payment instruction given by the accused as evidenced by Ex.P.2 and this resulted in accused being prosecuted for the offence under section 138 of N.I.Act.
3. The learned Magistrate convicted the accused assigning the reasons that the accused :: 4 ::
admitted his signature on the cheque marked Ex.P.1. The cheque was dishonoured because the accused gave stop payment instructions to the bank and it is not his case that there was sufficient funds in the bank account. Once the accused admitted his signature, presumption can be raised and the onus was on the accused to rebut the presumption. His defence that cheque was obtained by putting threat on him cannot be believed because it has come in evidence that when he came to attend the panchayat, he himself had brought the cheque. When he brought the cheque for attending panchayat, certainly a doubt would arise in his defence and the inference that can be drawn is that he himself issued the cheuqe voluntarily consequent to settlement as per Ex.P.6. The documents that the accused produced as per Ex.D.1 to D.7 were all subsequent documents and they indicated that the accused wanted to escape from the liability of making :: 5 ::
payment as per this settlement. It is further held that if the accused had spent any amount for the marriage, he could have produced the documents. Therefore there is no probability in the defence and the presumption available in favour of the complainant is not rebutted.
4. The learned Sessions Judge while reversing the judgment of the Magistrate recorded the reasons that there was no privity of contract between the complainant and the accused as Ex.P.6 was between the accused and Pradeep Kumar, that no law provides for returning the marriage expenses, that there is no iota of evidence showing that Rs.5,00,000/- given by complainant's father to the accused was in the form of a debt which could be recovered. The other reason recorded by the Sessions Judge is that the MoU between the complainant and the accused is hit by section 23 of the Indian Contract :: 6 ::
Act, because the complainant by agreeing to receive Rs.5,00,000/- gave up her right to take legal action against her husband and father-in-law. This kind of agreement was void.
5. Assailing the findings of the learned Sessions Judge, Sri. N. Vinayak Kamath, learned counsel for the appellant argued that the Sessions Judge has wrongly applied section 23 of the Indian Contract Act for reversing the judgment of the learned Magistrate. The accused admits to have issued the cheque. It is not in dispute that the cheque was dishonoured. Legal notice was also issued to the accused demanding payment of the cheque amount. There was no compliance. In this view, presumption as available under section 139 of N.I.Act was rightly raised by the Magistrate. Ex.P.6 clearly indicates that the accused issued the cheque for returning the marriage expenses, which was a legally enforceable debt. Ex.P.6 is a :: 7 ::
valid MoU and in this view the judgment of the Magistrate should be restored. To garner support for this argument, he placed reliance on the judgment of the Supreme Court in the case of Oriental Bank of Commerce Vs. Prabodh Kumari Tewari (Crl.A.1260/2022) and a judgment of Co-ordinate Bench of the Court in the case of Bethal Products (India), Bengaluru Vs. Jayakumar and another 2021 (4) KCCR 3404.
6. Sri. H.K.Ravi, learned counsel for the respondent argued that the MoU as per Ex.P.6 was illegal and invalid according to section 23 of the Indian Contract Act. There cannot be any MoU for dissolving the marriage. PW.1 has clearly admitted in the cross-examination that the accused agreed to pay Rs.5,00,000/- to refrain her from taking legal action against his son i.e., her husband. The complainant has already availed civil remedy for dissolution of the marriage.
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Moreover the accused lodged a complaint with the police that he and his son were forced to enter into an MoU as per Ex.P.6 and that he was forced to sign the cheque Ex.P.1. The documents produced on behalf of the accused clearly indicate that that he gave complaints to the police against the complainant much before her taking action under section 138 of N.I.Act. For these reasons, there did not come into being any transaction giving rise to legally enforceable debt or liability. Rightly the Sessions Judge has come to conclusion to reverse the judgment of the Magistrate and therefore this appeal is to be dismissed. He has placed reliance on some judgments to which I will refer later.
7. The case of the complainant is founded on the terms and conditions of the MoU dated 5.11.2012 marked Ex.P.6. One of the terms and conditions is that since the marriage broke down :: 9 ::
and the marriage expenses had been borne by the complainant's father, the accused being the father of the first party, i.e., Pradeep Kumar issued a cheque dated 5.1.2012 for Rs.5,00,000/- in order to return the marriage expenses. The Sessions Judge has held that no law provides for return of the marriage expenses and in this view even if a cheque is issued, it does not give rise to legally enforceable debt or liability in order to invoke section 138 of N.I.Act. I do not think that this finding is correct. Whenever the marriages fail, usually the parties resort to exchanging of articles mutually given and taken at the time of marriage and agree for returning the marriage expenses or a part of it to such party who has borne all the expenses. It is quite common for the parties to come to such an understanding and it does not require sanction of law. It was in this background, the accused appears to have agreed to return the marriage expenses.
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8. The specific defence is that Ex.P.6 was obtained from the accused by putting threat on him and his son, and in this regard they produced documents as per Ex.D.3 to D.7 to prove that they were forced to enter into MoU. DW.1 to 3 have also stated in their evidence that the complainant threatened them that she would commit suicide.
It is also true that PW.1 appears to have admitted a suggestion that she would not take action for offences under Dowry Prohibition Act if Rs.5,00,000/- was paid to her. Referring to Ex.D.3 to D.7 and the admission given by PW.1 in the cross-examination, it was argued by Sri.H.K.Ravi that the MoU is opposed to section 23 of the Indian Contract Act, which reads as below:
"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 :: 11 ::
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."
9. The language of the section is so clear that the emphasis is on the words 'consideration' or 'object'. If the consideration or object is unlawful, forbidden by law or defeats any provision of law or causes injury to the person or property of another or immoral or opposed to public policy, agreement becomes void. If the accused agreed to return the :: 12 ::
marriage expenses, it is not understandable as to how it can be called unlawful or immoral or forbidden by law. It has come in the evidence of PW.1 that her father had paid Rs.5,00,000/- to the accused for marriage expenses and the same was agreed to be returned. The money may be returned either to PW.1 or to her father, it is immaterial as to whom it should be returned. But PW.1 in the cross-examination has admitted a suggestion that she agreed for not taking any legal action if money was paid to her. If this was the real intention, section 23 of the Indian Contract Act is definitely applicable, but the answer thus given by PW.1 is just a stray answer. If the entire testimony of PW.1 is seen, it is possible to arrive at a conclusion that Rs.5,00,000/- was the marriage expenses that was demanded to be repaid and not a consideration to abstain from taking legal action. She has also stated that she made a petition claiming maintenance from her :: 13 ::
husband and that the maintenance was also granted. Further PW.2, the father of PW.1 also gave evidence that he gave Rs.5,00,000/- to Pradeep Kumar towards marriage expenses. A suggestion was given to him that cheque for Rs.5,00,000/- was obtained from the accused by putting threat that a case under Dowry Prohibition Act would be initiated if cheque was not given. This suggestion is denied. PW.2 is not otherwise discredited. PW.3 is an independent witness, whose evidence shows that the accused received Rs.5,00,000/- towards marriage expenses and he participated as a panchayatdar on 5.11.2012. He has stated that accused issued a cheque agreeing to return the marriage expenses. This witness is also not discredited in the cross-examination. He has clearly denied the suggestion that accused was threatened to issue cheque. PW.4 aged about 80 years has also spoken in tandem with PW.3.
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10. DW.1 is the accused who has stated in the examination-in-chief that he was made to issue a cheque for Rs.5,00,000/-. In that regard he got issued a legal notice to the complainant on 29.11.2012 as per Ex.D.1. He, his wife and son also addressed letters to the Home Minister, the Director General of Police and Assistant Commissioner of Police as per Ex.D.3 to 8. He has stated that since cheque was forcibly obtained from him, he issued stop payment instruction as per Ex.D.15 to the bank. DW.2 is the wife of DW.1 and DW.3 is Pradeep Kumar, the husband of the complainant. They have also given evidence in the same way. Very significantly it can be noted here that DW.1 has admitted in the cross examination that as per Ex.P.6, there was mutual exchange of articles and he did not take any legal action against the complainant for having obtained the cheque forcibly. DW.2 has also admitted in the cross-examination about exchange of articles.
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DW.3 also admits about exchange of articles as per Ex.P.6 and filing of a case against him by the complainant for maintenance.
11. The assessment of evidence shows that Ex.P.6 did come into existence on 5.11.2012 pursuant to panchayat held on that day. It does not appear to have been forced on the accused. In view of the fact that DW. 1 to 3 admit that there was exchange of articles in accordance with the terms and conditions of the MoU, it is not possible to believe their stand that they were made to sign the MoU and issue cheque because of threat given to them. Ex.D.3 to D.7 appear to have been foisted to avoid payment of Rs.5,00,000/-. As admitted by DW.1 no action was further taken after complaints were made as per Ex.D.3 to D.7.
Having given suggestion to PW.1 and PW.2 that issuance of cheque for Rs.5,00,000/- was towards consideration for not taking legal action, DW. 1 to :: 16 ::
3 have not stated so in their examination-in-chief.
It is not enough if suggestion to that effect was given in the cross-examination, they should have also stated in their examination-in-chief about that aspect of the matter. In this view a clear conclusion can be drawn that issuance of cheque for Rs.5,00,000/- was for returning the marriage expenses and it was not a consideration for desisting from taking legal action.
12. Now the decisions cited by Sri. H.K.Ravi may be referred. The judgment of the co-ordinate bench of this court in the case of R.Parimala Bai Vs. Bhaskar Narasimhaiah - Crl.P. No.1387/2011 [(2018 (4) AKR 379], the facts were that complainant paid money to the accused for securing a job for his son and when the accused could not secure the job, he issued a cheque for repaying Rs.10,00,000/-. The dishonour of cheque resulted in criminal action.
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13. Virender Singh Vs. Lakxmi Narain - LAWS(DLH)-2006-11-222 dealt with a situation where the accused received a sum of Rs.80,000/- from the complainant for the purpose of securing a job in Haryana Police establishment. The accused failed to secure a job and issued a cheque for Rs.80,000/- to the complainant. The cheque being bounced, action under section 138 of N.I.Act was taken. In that context section 23 of the Indian Contract Act was applied to hold that the purpose of issuance of cheque was unlawful.
14. The factual situation in the above two cases clearly show that section 23 of the Indian Contract Act is applicable and the facts clearly fit into illustration (f) to section 23. But the factual situation in the case on hand is different. Therefore the above two judgments are not helpful to the respondent.
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15. In the case of Sri. Taher N. Khambati Vs. M/s. Vinayaka Enterprises, Secunderabadand other (1995) Cr.L.J. 560, the proved facts showed that the appellant therein obtained a blank signed cheuqe as a threat for realization of the amount lent by him. This decision is also not applicable as in the case on hand, the defence version about threat has failed.
16. Therefore from the above discussion I come to conclusion that the Sessions Court has wrongly applied section 23 of the Indian Contract Act to reverse the judgment of the Magistrate. In this view appeal deserves to be allowed. Now the following:
ORDER Appeal is allowed. The judgment of the Sessions Court in Crl.A.No.1159/2016 is set aside.
The judgment of the Magistrate in C.C.No.9839/2013 convicting and sentencing the :: 19 ::
accused for the offence under section 138 of N.I.Act is restored.
Sd/-
JUDGE sd