Telangana High Court
B.Babu Rao vs Kishore Naidu Durga Manik And Another on 29 June, 2022
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Appeal No.169 OF 2020
Between:
B.Babu Rao ... Appellant
And
1. Kishore Naidu Durga Manik.
2. The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad. ... Respondents.
DATE OF JUDGMENT PRONOUNCED: 29.06.2022
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to Yes/No
see the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their
Ladyship/Lordship wish to see Yes/No
the fair copy of the Judgment?
2
* THE HON'BLE SRI JUSTICE K.SURENDER
+ CRL.A. No.169 of 2020
% Dated 29.06.2022
# B.Babu Rao ... Appellant
And
$ 1. Kishore Naidu Durga Manik
2. The State of Telangana,
rep. by its Public Prosecutor,
High Court for the State of Telangana,
Hyderabad. ..Respondents.
! Counsel for the Appellant: Gopala Krishna Kalanidhi
^ Counsel for the Respondents: 1. Ponnam Mahesh Babu for R1
2. Public Prosecutor for R2
>HEAD NOTE:
? Cases referred
1
2018(4) R.C.R (Criminal)
2
(1974) 2 Supreme Court Cases 533
3 2005 SCC OnLine Ker 366
3
HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.169 of 2020
JUDGMENT:
1. Aggrieved by the acquittal of the respondent herein for the offence under Section 138 of Negotiable Instruments Act, the present appeal is filed by the complainant.
2. The facts of the case are that the appellant/complainant and the respondent/accused are friends since long time. The complaint informed the accused that his son applied for the post of Technical Fitter in Midhani Factory, Hyderabad. The respondent/accused promised to provide said job, but asked the complainant to pay an amount of Rs.3,00,000/- for appointment order. However, even after lapse of one year, the accused failed to provide job as promised and upon insisting, the respondent/accused issued cheque bearing No.656237 dated 16.09.2015 for Rs.3,00,000/-.
3. The said cheque when sent for clearance was returned with an endorsement 'funds insufficient'. The complainant issued legal notice and thereafter filed complaint before the concerned Magistrate Court. The learned Magistrate after 4 completing the examination of the complainant/P.W.1 and marking Exs.P1 to P6, found the accused not guilty for the reason of the understanding between the complainant and the accused regarding giving the amount for securing job as per se illegal according to Section 23 of the Indian Contract Act and the object of such agreement of securing such job is unlawful. The amount was towards bribe and immoral and also a punishable offence. In the said background, when the cheque was issued consequent to an unlawful agreement, presumption under Sections 118 and 139 of Negotiable Instruments Act, cannot be raised, for which reason, the accused was acquitted.
4. Learned counsel for the appellant submits that irrespective of the reason for which cheque is drawn, once the said cheque is dishonoured on presentation, the court has no other option but to raise a presumption under Sections 118 and 139 of the Negotiable Instruments Act. The trial Court committed grave error in getting into the reasons for which the amount was given as it is not necessary to go into the reasons as to why the amount was given. Since the ingredients of 5 Section 138 i.e., drawing of cheque and the amount not being sufficient to honour the cheque, are satisfied, conviction has to be recorded.
5. Learned counsel for the respondent/accused submits that accepting that the amount of Rs.3,00,000/- was taken by the respondent/accused, for the purpose of securing a job, the same is illegal and in the absence of there being anything which suggests that the amount was taken as loan, the requirement of a 'enforceable debt' is lacking, for which reason, the appeal fails. Further, to draw a presumption under Section 139 of Negotiable Instruments Act, there is an initial burden on the complainant to prove that the same is legally enforceable debt. He relied on the judgment of Karnataka High Court in the case of R.Parimala Bai v. Bhaskar Narasimhaiah1, wherein it is held as follows:
"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 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 1 2018(4) R.C.R (Criminal) 6 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 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."
Under similar circumstances, in the above cited judgment the accused took an amount of Rs.10.00 lakhs for providing a job and when he failed to do so, issued a cheque to return the said amount. The same was dishonoured for the reason of 'funds insufficient'. In the said circumstances, the Court held that the said amount was given towards illegal purpose and in the circumstances, it cannot be said that it is 7 a legally recoverable debt to attract an offence under Section 138 of the Negotiable Instruments Act.
6. The other judgment, which the learned counsel for the respondent/accused relied upon is in the case of K.N.Beena v. Muniappan and another [Appeal (Crl.)1066 of 2001, wherein the Hon'ble Supreme Court held that burden of proving that a chqeue has not been issued for debt or liability is on the accused, after the initial burden is discharged.
7. The learned counsel for the appellant alternatively submits that the case has to be remanded to the trial Court for the purpose of providing an opportunity to the complainant/appellant to prove his case.
8. The three Judge Bench judgment of Hon'ble Supreme Court in the case of Kuju Colieries Ltd., v. Jharkhand Mines Limited2, the Hon'ble Supreme Court held that an agreement entered into between the parties for an illegal purpose, the same cannot be recovered.
2 (1974) 2 Supreme Court Cases 533 8
9. The High Court of Kerala in the case of J.Daniel v. State of Kerala[2005 SCC OnLine Ker 366] held as follows:
"8.A reading of the above would show that any agreement opposed to law or forbidden by law is not enforceable. Every debt or liability upon which a cheque is issued is not enforceable. For example, if an officer of defence force receives a cheque for consideration on the basis of an agreement to pass on military secrets, such a cheque is not enforceable under Section 138 of the Act. It can be interpreted that any debt or liability arising out of a contract or promise, which is unlawful or not legally enforceable, would not constitute an offence under Section 138 of the Act."
10. The appellant/complainant himself admits that the cheque was issued for the purpose of securing job in Midhani company which is not by any legal means. In the said circumstances, when the cheque was drawn not for the purpose of securing any debt or liability, but pursuant to an illegal contract of an agreement entered into between the complainant and the accused, it cannot be said that it is a legally enforceable debt and such contracts/agreements are prohibited under law. For the said reason, as the cheque drawn was not in support of any debt or liability, the same cannot be legally enforceable.
11. The argument of the learned counsel for the appellant that the case be remanded for denovo trial cannot be 9 entertained for the reason of the appellant not making out any grounds to remand the matter for fresh trial. There is no illegality either procedural or otherwise committed by the learned Magistrate to remand the matter back for fresh trial as urged by the appellant/complainant.
12. For the foregoing reasons, the appeal is devoid of merits and same is liable to be dismissed and accordingly dismissed. As a sequel thereto, miscellaneous applications, if any, shall stand closed.
________________ K.SURENDER, J Date: 29.6.2022 kvs 10 HONOURABLE SRI JUSTICE K.SURENDER Criminal Appeal No.169 of 2020 Date:29.06.2022 kvs 11