Karnataka High Court
Sri Kashmir D Souza vs Sri Dennis Meneges on 21 February, 2024
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CRL.A.No.62 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL No. 62 OF 2014 (A)
BETWEEN:
SRI KASHMIR D'SOUZA
S/O ANTONY D'SOUZA
AGED ABOUT 33 YEARS
R/O KOLYOTTU HOUSE
NO.34, NELLADY VILLAGE
PUTTUR TALUK-574 229
DAKSHINA KANNADA DISTRICT
...APPELLANT
(BY MS. CHAITRA, ADVOCATE FOR
SRI SACHIN B.S., ADVOCATE)
AND
SRI DENNIS MENEGES
S/O NATALIYA MENEGES
AGED ABOUT 49 YEARS
C/O PONNAMMA TANGHACHAN
KONALU ARLA, GOLITHOTTU POST
PUTTUR TALUK-574229
DAKSHINA KANNADA DISTRICT
...RESPONDENT
(BY SRI P.DHANANJAYA, ADVOCATE FOR
SRI VISHWANATHA POOJARY K., ADVOCATE)
THIS CRL.A. FILED U/S.378(4) CR.P.C BY THE ADV. FOR
THE APPELLANT PRAYING TO SET ASIDE THE JUDGMENT AND
ORDER DATED 7.11.2013 PASSED BY THE PRL. C.J. AND
J.M.F.C., PUTTUR IN C.C.NO.53/2011 - ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF
N.I.ACT.
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
12.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CRL.A.No.62 of 2014
JUDGMENT
Appellant/complainant feeling aggrieved by judgment
of Trial Court on the file of Prl.Civil Judge and JMFC, Puttur
in CC.No.53/2011, dated 07.11.2013 preferred this
appeal.
2. Parties to the appeal are referred with their
ranks as assigned in the Trial Court for the sake of
convenience.
3. Heard the arguments of both sides.
4. After hearing arguments of both sides and on
perusal of Trial Court records, so also the impugned
judgment under appeal, the following points arise for
consideration:
1) Whether the impugned judgment under appeal
passed by Trial Court for the offence punishable
under Section 138 of N.I.Act is perverse,
capricious and legally not sustainable?
2) Whether interference of this Court is required?
5. On careful perusal of oral and documentary
evidence placed on record, it would go to show that
accused represented as CBI Commissioner and assured
complainant to get a job in CBI as Inspector. Accused
collected an amount of Rs.1,25,000/- and Rs.94,000/-
from the complainant and issued receipt for Rs.1,25,000/-.
Thereafter, accused started avoiding complainant and
complainant realized that he has been cheated by
accused. When he prays for repayment of the money
given by him accused has issued cheque bearing
No.265112 drawn on Canara bank on 30.08.2010 Ex.P.1.
Complainant presented the said cheque for collection
through his banker and the same was dishonoured as
"funds insufficient" vide bank endorsement Ex.P.2.
Complainant issued demand notice dated 29.10.2010 and
the same is duly served to accused vide postal
acknowledgment card Ex.P.4. Accused in spite of due
service of demand notice neither replied to the same nor
paid the amount covered under cheque Ex.P.1.
Complainant thereafter has filed the complaint on
23.11.2010.
6. It is the defence of accused that there is no
legally enforceable debt. Accused issued blank signed
cheque to complainant in some land dealings and the
same has been misused by complainant to file this false
case. Accused in order to probabilise his defence has
chosen to rely on the material produced by complainant
and not lead any of his evidence.
7. Accused has not made any basic foundation
regarding the defence by replying to the demand notice
though duly served to him. However, that itself cannot be
a ground to hold that there was legally enforceable debt
and cheque in question Ex.P.1 was issued for lawful
discharge of debt. It is open for accused to bring the
material evidence during cross-examination of PW.1 and
the circumstances to prove the non existence of legally
enforceable debt.
8. In the present case even according to the
complainant as per the pleading in the complaint would go
to show that he has alleged to have given money
amounting to Rs.2,19,000/- for securing job in CBI as
Inspector, since accused represented himself to be CBI
Commissioner. The Trial Court has held that giving and
taking bribe is forbidden under law and the debt or
liability is not legally enforceable as the claim is prohibited
under law. In support of such finding Trial Court has relied
on the judgment of Hon'ble Delhi High Court in Virender
Singh Vs. Laxmi Narain and another reported in 2007
Cri.L.J 2262.
9. Learned counsel for complainant in support of
her contention that money given for securing a job and
cheque issued for refund of the said amount is legally
recoverable debt relied on the judgment of Hon'ble
Chattisgarh High Court in R L Sahu Vs. Moh Tahir Shekh
in Cr.M.P.No.848 of 2011 dated 30.03.2012, wherein
it has been observed and held in para 13 as under:
" 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, therefore, petitioner cannot be denied to
access the justice. His position was not of pari
delicto".
The Hon'ble Chattisgarh High Court having so
observed has set aside the judgment of both the Courts
below and matter was remanded to Trial Court.
10. Learned counsel for complainant also relied on
the judgment of Hon'ble Kerala High Court in Saseendra
Varma Raj E K Vs. State of Kerala reported in LAWS
(KER) 2008 7 14, wherein it has been observed and held
as under:
"Negotiable Instruments Act, 1881 - Section
138 - Contract Act, 1872 - S. 65 Agreement to
secure job for the son of the complainant by
accepting Rs.75,000/- which was later agreed to be
returned since no job could be secured. The accused
challenge the verdict of conviction on the ground that
the agreement to return the amount obtained for an
illegal purpose is not valid under the Contract Act and
hence the cheque is not supported by valid
consideration. Held: The agreement to return the
money was not tainted with illegality and hence the
cheque is validly issued. Revision dismissed".
This judgment of Hon'ble Kerala High Court has
been relied by Hon'ble Chattisgarh High Court in
R L Sahu's case referred above, it has been held in both
the aforementioned judgments that accused agreeing to
repay the money was not tainted for illegality and hence
the cheque was validly issued.
11. The Hon'ble Delhi High Court had an occasion
to consider the effect of Section 23 of Contract Act in
Virender Singh Vs. Laxmi Narain and Anr. reported in
2007 Cri LJ 2262, wherein it has been observed and held
as under:
"(D) Negotiable Instruments Act (26 of 1881),
S. 138 - Dishonour of cheque - Legally enforceable
debt or liability - Complainant paid sum of
Rs.80,000/- to accused for purpose of securing job for
his nephew - As job was not made available to
complainant's nephew, he requested accused to
return said amount - Dishonour of cheque issued by
petitioner towards said amount - Agreement between
petitioner and complainant for securing job is void,
consideration therein being unlawful - Parties being in
pari delicto, therefore, said sum of Rs.80,000/-
cannot be recovered - Thus, there did not exist any
legally enforceable debt or liability for discharge of
which it could be said that cheque in question was
issued - Consequently, S. 138 would not be
attracted."
In view of the principles enunciated in this judgment
of Hon'ble Delhi High Court where contract was void
ab initio and cheque was issued for discharge of such
liability does not attract penal action in terms of Section
138 of N.I.Act.
12. It is also profitable to refer the Co-ordinate
Bench Judgment of this Court in R.Parimala Bai Vs.
Bhaskar Narasimhaiah reported in (2018)4 KCCR
3464, wherein this Court has found that there are no any
allegations that accused had taken money as a loan, or
debt or as a liability at any point of time. The money was
said to be paid for securing job of his son, even without
examining whether the accused has got any authority to
provide job to his son or not. Therefore, without examining
anything complainant himself entered into a void contract
with accused and paid money as against the public policy
for illegal purpose. Therefore, it is held that in view of
Section 23 of Indian Contract Act, if on the basis of the
void contract and particularly if the consideration is illegal
and consideration is for immoral or illegal purpose or
which is against public policy, then the whole transaction
becomes void, the consideration paid in such contract
becomes illegal consideration and when it is said that it
is illegal or unlawful consideration, it cannot be at any
stretch of imagination called as a legally enforceable debt.
13. In the present case complainant has contended
that he has paid money of Rs.1,25,000/- and Rs.94,000/-
on two different occasions and in the first payment
accused has issued the receipt for having accepted amount
of Rs.1,25,000/-. However, no any such receipt of accused
acknowledging the receipt of money of Rs.1,25,000/- has
been produced by complainant. The payment of the said
money as referred above to the accused is not supported
by any evidence on record. When the alleged payment of
money even according to complainant is for getting job
and alleged payment of such money at any rate cannot be
termed as a legally enforceable debt attracting penal
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action in terms of Section 138 of N.I.Act, since the
contract was void ab initio, no presumption would lie for
dishonour of said cheque.
14. The Trial Court has rightly appreciated the oral
and documentary evidence placed on record and has
arrived to a just and proper conclusion in holding that
complainant has failed to prove that accused has issued
the cheque in question Ex.P.1 for lawful discharge of debt.
The said finding recorded by Trial Court is based on
material evidence placed on record and the same does not
call for interference by this Court. Consequently, proceed
to pass the following:
ORDER
Appeal filed by appellant/complainant is hereby
dismissed as devoid of merits.
Registry to send back the records to Trial Court with
a copy of this order.
SD/-
JUDGE
GSR
