Himachal Pradesh High Court
Naresh Kumar vs Joginder Singh on 13 October, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.621 of 2023 .
Reserved on : 04th August, 2023
Decided on : 13.10.2023
Naresh Kumar ...Petitioner
Versus
Joginder Singh ...Respondent
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Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
rt Whether approved for reporting?1 Yes.
For the petitioner : Mr. Amardeep Singh, Advocate.
For the respondent : Mr. R.L. Chaudhary & H.R. Sidhu, Advocates.
Virender Singh, Judge.
PetitionerNaresh Kumar has filed the present petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.PC'), with a prayer to quash the notice of accusation dated 19.02.2020, as well as, the proceedings, initiated against him, by respondentJoginder Singh, under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as the 'NI Act'), by way of filing the complaint, which has been 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 2registered, as Case No.175III/2019, titled as Joginder Singh Vs. Naresh Kumar, pending before the Court of .
learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, H.P., (hereinafter referred to as the 'trial Court').
2. For the sake of convenience, the parties to the of lis, are hereinafter referred to, in the same manner, in which, they were referred to by the learned trial Court.
rt
3. Brief facts, as emerge from the record, are, as under: Complainant Joginder Singh, has filed the complainant, under Section 138 of the NI Act, before the learned trial Court, on the ground that accused Naresh Kumar is an Ex. Serviceman and the accused, through his friend, Karnail Singh, son of Shri Sadhu Ram, resident of VPO Hatli, Tehsil Nurpur, had allured many persons, including complainant that he has links in the Indian Railway and he can recruit youth in the Railway, as, according to the complainant, accused has allured that the recruitment process, in the Indian Railway, is a continue affair.
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 33.1. It is the further case of the complainant that acting upon the allurement made by the accused, as well .
as, Karnail Singh, Ex. Serviceman, he has paid a sum of Rs.4,50,000/, for recruiting his son, in the Railway. The said amount was paid in cash.
3.2. After receiving money, the accused took the son of of the complainant, along with two other youth of village Hatli, as well as, 14 other youth, including two girls, from rt Chowari area to Banglore for recruitment in the Railway.
Some forms were also filledin, in the month of December, 2017. All those youths were kept in a Hotel near Railway Station at Banglore, for three days and thereafter, it has been disclosed to them that the recruitment has been cancelled.
3.3. Thereafter, all these youths returned back.
When, they came back, the complainant kept on visiting the accused, along with Karnail Singh, by demanding his money back.
3.4. When, the complainant and other youth threatened the accused to lodge a police complaint, then, the accused issued Cheque No.393703, dated 30.04.2019, ::: Downloaded on - 13/10/2023 20:37:51 :::CIS 4 amounting to Rs.4,50,000/, drawn on Punjab National Bank, Branch Jhanui (Chamba), from his account with an .
assurance that whenever, the cheque will be presented, the same will be encashed. He has requested the complainant to present the cheque, for encashment, in the last week of May, 2019.
of 3.5. Acting on the assurance of the accused, the complainant presented the Cheque No.393702, dated rt 30.04.2019, amounting to Rs.4,50,000/ to his Banker, the Punjab National Bank, Branch Nurpur, Tehsil Nurpur, for encashment, however, on 09.07.2019, the cheque was returned uncashed with a memo. As per the memo, the cause for nonencashment of the cheque, was "Funds Insufficient".
3.6. It is the further case of the complainant that the accused dishonestly induced complainant and extracted an amount of Rs.4,50,000/ from him.
3.7. Thereafter, the statutory notice was issued by the complainant, through his counsel, to the accused, which was duly received by him and despite the notice, he ::: Downloaded on - 13/10/2023 20:37:51 :::CIS 5 has not made the payment to the complainant not replied the notice.
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3.8. On the basis of the above facts, following prayer has been made by the complainant: " It is therefore prayed that proceedings u/s 138 of N.I. Act be initiated against the accused in the interest of justice and of equity."
4. After securing the presence of the accused, the rt learned trial Court has put the notice of accusation to the accused on 19.02.2020, to which, he has not pleaded guilty and claimed to be tried.
5. Aggrieved from the order dated 19.02.2020, the present Revision Petition has been filed, with a prayer to set aside the order, vide which, notice of accusation was put to him, as well as, with a prayer to quash the complaint.
6. The relief of quashing has been sought on the ground that, as per the contents of the complaint, there was no 'legally enforceable debt or liability', as such, the complaint is stated to be abuse of process of law.
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 67. Highlighting the fact that, as per the allegations, as contained, in the complaint, the amount .
was allegedly paid to the accused to be given as 'bribe' to the Railway officials and as such, it is the case of the accused that the same was a void contract under Section 23 of the Contract Act.
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8. It is the further case of the accused that, as per Sections 23 and 24 of the Contract Act, if the consideration rt or object is unlawful, then, the same does not fall within the definition of contract.
9. The accused has also assailed the summoning order, as well as, sought the quashing of the complaint, on the ground that ingredients of Section 138 of the NI Act, are not fulfilled, in this case and, as such, if the proceedings are permitted to continue, then, it would amount to abuse of process of law.
10. On the basis of the above facts, a prayer has been made to allow the revision petition, as prayed for.
11. The prayer, so made, in the petition, has been opposed, by Shri R.L. Chaudhary, Advocate, appearing for the complainant, on the ground that the prayer cannot be ::: Downloaded on - 13/10/2023 20:37:51 :::CIS 7 allowed, as, the learned trial Court, has rightly taken the cognizance of the offence and, as such, the notice of .
accusation, was put to him. Once, cognizance has been taken by the learned trial Court, then, the prayer made, in the petition, cannot be allowed, as, it would be amounting to obstruct the stream of the trial.
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12. The present petition has been filed under Section 482 Cr.PC. The scope of the powers under Section rt 482 Cr.PC, has elaborately been discussed by the Hon'ble Apex Court, in State of Harayana versus Bhajanlal, 1992 Supp(1) SCC 335, wherein, the Hon'ble Apex Court has laid down the following guidelines, for exercise of powers, under Section 482 Cr.PC: "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 8(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do .
not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer of without an order of a Magistrate as contemplated under Section 155(2) of the Code.
rt (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 913. At the time of exercising the powers, under Section 482 Cr.PC, this Court should not embark upon an .
enquiry into, the fact as to whether the evidence is reliable or not, nor, this Court can act as an Appellate Court or trial Court.
14. It is well settled law that, at this stage, if the of contents of the complaint, are taken, as it is, and no offence is made out, then, the powers, under Section 482 rt Cr.PC, could be exercised.
15. A three Judge Bench of Hon'ble Supreme Court, in Madhavrao Jiwajirao Scindia versus Sambhajirao Chandrojirao Angre, (1988) 1 SCC, 692, has held, as under: "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is ::: Downloaded on - 13/10/2023 20:37:51 :::CIS 10 likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of .
a case also quash the proceeding even though it may be at a preliminary stage."
(self emphasis supplied)
16. In the light of the decision of Hon'ble Apex Court, now, this Court, proceeds to see the contents of the of complaint. At this stage, the defence of the accused, is not liable to be taken into consideration.
17. rt Learned counsel appearing for the petitioner has relied upon the contents of the complaint, according to which, the amount was allegedly charged by the accused, for getting the son of the complainant recruited, in the Indian Railway.
18. The accused has been chargesheeted/notice of accusation was put to him, under Section 138 of the NI Act. The provisions of Section 138 of the NI Act, are reproduced, as under: 138 Dishonour of cheque for insufficiency, etc., of funds in the account.--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 bank unpaid, either because of the amount of money standing to the credit of that ::: Downloaded on - 13/10/2023 20:37:51 :::CIS 11 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: Provided that nothing contained in this section shall apply unless--
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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; rt
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.-- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability.
19. Legislature, in its wisdom, has elaborated the term 'debt or other liability', in the explanation to Section 138 of the NI Act, reproduced above, as 'a legally enforceable debt or other liability'.
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 1220. As per the stand taken, in the complaint, there was alleged agreement between the complainant and .
accused to get the son of the complainant recruited, in the Railway, for which, the complainant had agreed and paid Rs.4,50,000/.
21. In this factual background, the first and of foremost question, which arises for determination before this Court, is with regard to the fact that whether the rt issuance of the cheque, amounting to Rs.4,50,000/, which was allegedly received by the petitioner, for getting the son of the complainant, recruited in the Railway, falls in the definition of the legally enforceable debt or other liability. In this regard, the provisions of Sections 23 and 24 of the Contract Act, assume significance and those provisions are reproduced, as under:
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.
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 13In 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.
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.
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22. If the facts and circumstances of the present case, are seen, in the light of the bare provisions of rt Sections 23 and 24 of the Indian Contract Act, then, the alleged agreement, with regard to getting the son of the complainant recruited, in the Indian Railway, falls within the definition of void agreement.
23. As per Section 138 of the NI Act, it is sine qua non that there should be an existence of legally recoverable debt, whereas, in this case, the amount allegedly has been paid, by the complainant, to the accused, for securing the job, for his son, in the Indian Railway,
24. As per para 2 of the complaint, the accused, who is an Ex. Serviceman, has allegedly allured the complainant and many other persons to get their wards recruited in the Indian Railway.
::: Downloaded on - 13/10/2023 20:37:51 :::CIS 1425. Bare reading of the complaint makes the object of the complainant, to allegedly advance the amount to .
accused, unlawful.
26. Hon'ble Apex Court in G. Pankajakshi Amma & Others versus Mathai Mathew (dead) through LRs & Another, (2004) 12 Supreme Court Cases 83, has held of that the Court cannot come to the aid of the party, in an illegal transaction.
rt Relevant para 10 of the judgment is reproduced, as under: "10. There is any reason also why the impugned judgment cannot be upheld. According to the 1st respondent these transactions were to be unaccounted transactions. According to the 1st respondent, all these amounts are paid in cash. If these are unaccounted transactions then they are illegal transactions. No court can come to the aid of the party in an illegal transaction. It is settled law that in such cases the loss must be allowed to lie where it falls. In this case as these are unaccounted transactions, the Court could not have lent its hands and passed a decree. For these reasons also the suit was required to be dismissed."
(self emphasis supplied)
27. Certainly, the amount allegedly paid by the complainant, was for illegal purpose i.e., for getting the son of the complainant recruited, in the Indian Railway, by ::: Downloaded on - 13/10/2023 20:37:51 :::CIS 15 paying money. Meaning thereby, their contract was illegal, being contrary to the law, as well as, against the public .
Policy.
28. As such, the complainant cannot maintain an action to enforce the violation of the provisions of Section 138 of the NI Act, on the basis of illegal transaction.
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29. Payment of money for the illegal purpose is against the public policy and Hon'ble Apex Court in B. rt Sunitha versus State of Telangana & Another, AIR 2017 (Supreme Court) 5727, has held that, if the object is illegal, then the complaint, under Section 138 of the NI Act, is not maintainable. Relevant paragraphs 18 and 19 of the judgment, are reproduced, as under: "18. Thus, mere issuance of cheque by the client may not debar him from contesting the liability. If liability is disputed, the advocate has to independently prove the contract.
Claim based on percentage of subject matter of litigation cannot be the basis of a complaint under Section 138 of the Act.
19. In view of the above, the claim of the respondent advocate being against public policy and being an act of professional misconduct, proceedings in the complaint filed by him have to be held to be abuse of the process of law and have to be quashed."
(self emphasis supplied) ::: Downloaded on - 13/10/2023 20:37:51 :::CIS 16
30. At the cost of repetition, the complainant could not initiate the complaint, against the complainant, as the .
amount, was allegedly paid, for an illegal purpose. The present admitted proposition of fact is squarely covered by illustration (f) attached to Section 23 of the Contract Act, which reads, as under: of "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 rt the consideration for it is unlawful."
31. In view of the discussion made above, the present petition is allowed. The notice of accusation, as well as, the complaint bearing Case No.175III/2019, titled as Joginder Singh versus Naresh Kumar, filed under Section 138 of the NI Act, against the petitioner, pending before the trial Court, are ordered to be quashed.
( Virender Singh ) Judge October 13, 2023(ps) ::: Downloaded on - 13/10/2023 20:37:51 :::CIS