Chattisgarh High Court

Vijay Kumar Chandra vs Ganga Prasad Ratnakar on 23 September, 2022

                                     1

                                                                               NAFR
            HIGH COURT OF CHHATTISGARH, BILASPUR

             Judgment reserved on :               08/07/2022
              Judgment delivered on: 23/09/2022
                        ACQA No. 304 of 2019
   Vijay Kumar Chandra S/o Shri Golan Singh Chandra,
    Aged About 35 Years, R/o Village Tushar, Police
    Station Jaijaipur, District Janjgir Champa,
    Chhattisgarh.
                                                               Appellant
                               Versus
   Ganga Prasad Ratnakar S/o Sukhiram Ratnakar, Aged
    About 40 Years, R/o Primary Health Center, Raipura,
    Police   Station   Baradwar,  District   Janjgir
    Champa, Chhattisgarh.
                                                              Respondent



For Appellant                  :     Mr. Vipin Tiwari, Adv.
For Respondent                 :     Mr. Promod Shrivastava and
                                     Mr. Vikas Pandey, Advocates


            Hon'ble Smt. Justice Rajani Dubey, J.

C A V Order

1. This acquittal appeal has been preferred by the

appellant against the judgment and order dated

02.01.2019 passed by the Judicial Magistrate First

Class, Jaijaipur, District Janjgir Champa (C.G.),

in Criminal Case No. 53/2018 whereby the learned

trial Court acquitted the respondent herein from

the charges punishable under Section 138 of

Negotiable Instrument Act.

2. The case of the prosecution, in short, is that

appellant/complainant filed a complaint against

respondent on the ground that respondent is working

on the post of Pharmacist Grade II in Primary

Health Center Raipura, in the year 2013 he obtained

Rs. 5,00,000/ from the appellant in the name of

providing him job but he failed to do so.

Thereafter, respondent has given a cheque of his

joint account with his father dated 21.11.2017 of

Rs.5,00,000/ to the appellant. When appellant

produced the same cheque before the bank the same

was bounced due to the insufficient balance. The

appellant sent notice to the respondent and

despiting receiving of notice, he did not pay the

cheque amount to the complainant/appellant,

therefore, he filed complaint case against the

respondent which was registered as 53/2018.

3. Before trial Court complainant examined himself and

exhibited documents P1 to P5. Statement of accused

was also recorded under Section 313 of Cr.P.C.

4. After appreciating the oral and documentary

evidence on record, learned trial Court by impugned

judgment, acquitted the respondent/accused from the

aforementioned charge on the ground that the cheque

was not given in legal liability by the respondent.

Hence, this appeal filed by the appellant.

5. Learned counsel for the appellant would submit that

learned Special Judge has absolutely unjustified in

acquitting the respondent herein from the aforesaid

charges by recording a finding which is perverse to

the record and deserves to be setaside. It is

clear from the facts of the case that there are two

parts of agreement. First, the respondent has

promised to provide the job to the appellant and

for the same he has received Rs. 5,00,000/ from

him which is no doubt illegal and second, the

respondent has issued the cheque of Rs. 5,00,000/

to correct himself and he was agreed to return the

money which he had received from the appellant for

illegal propose and issued cheque in favour of the

appellant who is victim of first agreement, then it

cannot be said that the second part of agreement is

illegal and the appellant is not entitled to take

recourse available under the law for wrong

committed by the respondent. He further submits

that the trial Court has not properly considered

the fact that when the cheque was filled, signed

and given to the appellant, it is the duty of the

respondent to controvert the presumption under

Section 139 of N.I. Act. In support of his argument

learned counsel for the appellant placed reliance

on the decision of Hon'ble Apex Court in the matter

of Alka Khandu Avhad Vs. Amar Syamprasad Mishra and

Another reported in (2021) AIR (SC) 1616 and in

this Court's order dated 30.03.2012 in R.L.Sahu Vs.

Mohd. Tahir Shekh passed in Cr.M.P. No. 848/2011.

6. Per Contra, learned counsel for the respondent

supported the impugned judgment and submitted that

both parts of the agreement were illegal and

against the public policy. Initial agreement for

providing job was illegal consideration received

for illegal purpose and its recovery are subsequent

agreement relating to the recovery of such illegal

consideration is also illegal and against the

public policy. In support of his argument he placed

reliance on R. Parimala Bai Vs. Bhaskar

Narasimhaiah 2018 LawSuit (Kar) 1728.

7. Heard learned counsel for the parties, considered

their rival submissions and perused the material

available on record.

8. Before the trail Court complainant examined himself

as complaint witness No.1 and filed Ex. P/1 the

disputed cheque of Rs. 5,00,000/, Ex. P/2 memo of

bank, Ex. P/3 copy of notice, Ex. P/4 postal

receipt and Ex. P/5 acknowledgment. It is objected

by the respondent that the disputed cheque was

issued by another person namely Sukhiram, Ganga and

complainant did not file complaint against Sukhiram

who is father of the respondent. But it is clear

from the disputed cheque (Ex.P1) that it is a

joint account and Sukhiram is father of the

respondent and Ganga proceeds the name of

respondent and he is not an account holder. This

fact was not proved by the respondent before the

trial Court.

9. The Hon'ble Supreme Court in the matter of Alka

(supra) held in para 7 as under:

"7. On a fair reading of Section 138 of the NI Act,

before a person can be prosecuted, the following

conditions are required to be satisfied:

i) that the cheque is drawn by a person and on an

account maintained by him with a banker;

ii) for the 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; and

iii) the said cheque is returned by the 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.

Therefore, a person who is the signatory to the

cheque and the cheque is drawn by that person on an

account maintained by him and the cheque has been

issued for the discharge, in whole or in part, of

any debt or other liability and the said cheque has

been returned by the bank unpaid, such person can

be said to have committed offence. Section 138 of

the NI Act does not speak about the joint

liability. Even in case of a joint liability, in

case of individual persons, a person other than a

person who has drawn the cheque on an account

maintained by him, cannot be prosecuted for the

offence under Section 138 of the NI Act, a person

might have been jointly liable to pay the debt, but

if such a person who might have been liable to pay

the debt jointly, cannot be prosecuted unless the

bank account is jointly maintained and that he was

a signatory to the cheque.

10. It is also proved by the complainant that Ex. P1

i.e. disputed cheque was given by the respondent

and respondent did not rebut the presumption under

Section 139 of Negotiable Instruments Act.

11. This Court in the matter of R.L. Sahu (supra) held

in paras 11 to 13 as under:

"11. While dealing with the question of doctrine of pari delicto the Supreme Court in the matter of Mohd. Salimuddin V. Misri Lal and Another1 has held that loan advanced by tenant to landlord to secure tenancy under unlawful agreement ad subsequent claim of adjustment of such loan, tenant is entitled for such adjustment because tenant was not in a position to oppose the proposal of landlord. The doctrine of pari delicto is not designed to reward the 'wrongdoer' or to penalize the 'wronged', by denying to the victim of exploitation access to justice. The doctrine is attracted only when none of the parties is a victim of such exploitation and both parties have voluntarily and by their free will joined hands to flout the law for their mutual gain.

Para 4 of the aforesaid judgment reads as 1 AIR 1986 SC 1019

under: "4... To deny access to justice to a tenant who is obliged to yield to the unlawful demands of the landlord in this scenario by invoking the doctrine of pari delicto is not designed to reward 'wrongdoer' or to penalize the 'wronged', by denying to the victim of exploitation access to justice. The doctrine is attracted only when none of the parties is a victim of such exploitation and both parties have voluntarily and by their free will joined hands to flout the law for their mutual gain. Such being the position the said doctrine embodying the rule that a party to a transaction prohibited by law cannot enforce his claim in a Court of law is not attracted in a situation like the present...

12.While dealing with the such question i.e. maxim pari delicto in absence of any substance of conspiracy to defraud a third person, maxim does not apply the Supreme Court in the matter of Kedar Nath Motani and Others. V. Prahlad Rai and Others2 has held that where both the parties do not show that there was any conspiracy to defraud a third person or to commit any other illegal act, the maxim, in pari delicto etc., can hardly be made applicable.

13.In the present case, first part of the agreement was not illegal, but when the respondent with a view to correct himself has agreed to return the money which he has received from the petitioner for illegal purpose and issued cheques in favour of the petitioner who is victim of first agreement, then it cannot be said that second part of agreement is illegal and the petitioner is not entitled to take recourse available under the law for wrong committed by the respondent,

2 AIR 1960 SC 213

therefore, petitioner cannot be denied to access the justice His position was not of pari delicto.

12. Looking to the above legal position and facts of

this case, it is clear that complainant proved the

fact that respondent gave him disputed cheque which

was dishonored by the bank due to insufficient

fund. When respondent himself has agreed to return

the money which he has received from the petitioner

for illegal purpose and issued a cheque in favour

of the petitioner, who is victim of first part of

agreement, then it cannot be said that second part

of agreement is illegal and the petitioner is not