D.Rajasekar vs Victor Jesudas
2021 Latest Caselaw 18317 Mad

                                                                                      Crl.A.No.408 of 2021


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 07.09.2021

                                                           CORAM

                                   THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                                    CRL.A.No.408 of 2021

                     D.Rajasekar                                                   ... Appellant
                                                           Versus

                     Victor Jesudas                                                .. Respondent

                                  Criminal Appeal Case filed under Sections 378 of Criminal
                     Procedure          Code,   against   the   Judgment   dated    10.03.2021,        in
                     S.T.C.No.104 of 2018, passed by the learned Judicial Magistrate (Fast
                     Track Court), Vellore.

                                        For Appellant      : Mr.Arun Anbumani


                                                          JUDGMENT

This Criminal Appeal has been filed against the Judgment of

acquittal dated 10.03.2021, in S.T.C.No.104 of 2018, passed by the

learned Judicial Magistrate (Fast Track Court), Vellore.

2.The appellant is the complainant. The respondent is the accused. https://www.mhc.tn.gov.in/judis Page No.1/11 Crl.A.No.408 of 2021

The appellant filed a private complaint under Section 200 of Cr.P.C., as

against the respondent for the offence under Section 138 of Negotiable

Instruments Act, 1881, before the learned Judicial Magistrate (Fast Track

Court), Vellore. The learned Magistrate has taken cognizance of the

offence and taken the case on file in S.T.C.No.104 of 2018. After due

enquiry, the court below dismissed the complaint and acquitted the

respondent/accused, from the said offence.

3.Challenging the said Judgment of acquittal of the respondent/

accused, the complainant has filed the present appeal before this Court.

4.The learned counsel for the appellant would submit that the

respondent had admitted the signature and execution of the cheque,

therefore, the Trial Court ought to have raised a presumption under

Section 139 of NI Act, in favour of the appellant. However, the learned

Magistrate held that the cheque given by the respondent does not fall

under the Explanation “legally enforceable debt or other liability” under

the Act. The court below also erroneously held that the appellant/

complainant has not proved his case as required under Section 138 of

Negotiable Instruments Act, without properly appreciating the oral and https://www.mhc.tn.gov.in/judis Page No.2/11 Crl.A.No.408 of 2021

documentary evidence. It is settled law that once the execution of cheque

was admitted, the Courts has to draw the presumption under Section 139

of Negotiable Instruments Act, and it is for the accused to rebut the

presumption. The appellant has given the sum of Rs.1,10,000/- to the

respondent on the promise made by the respondent to secure a job and

such amount was paid as a donation to the trust believing the

representation made by the respondent that by disclosing such donation

to the management, he would obtain a job for the appellant from the

C.M.C. Hospital, Vellore. Further, the trial court erred in relying upon

Section 23 of the Indian Contract Act, 1872, illustration (f) thereto to

conclude that the cases filed for recovering the money given as bribe is

opposed public to policy. In fact it was not the case of the appellant or

the respondent that money was given as a bribe for obtaining an

employment in public service. Therefore, the illustration (f) of the

Section 23 of the Indian Contract Act, 1872 is not applicable to the facts

of the present case. First thing is that the amount was not given by the

appellant as a bribe to the respondent or for obtaining any employment in

any Public Service. Secondly, in this case, the said money was to be

construed as a bribe is an assumption but not conceded, since, the C.M.C

Hospital at Vellore, is not a Government or Public Institution and it is https://www.mhc.tn.gov.in/judis Page No.3/11 Crl.A.No.408 of 2021

only a private institution. Therefore, the learned Judicial Magistrate has

failed to interpret the correct provision and wrongly come to the

conclusion that the consideration of the cheque was only issued as a

bribe, therefore, it is not legally enforceable debt. Accordingly, the

Judgment of the Trial Court is perverse and it is liable to be set aside and

the appeal has to be allowed, by convicting the respondent/accused for

the offence under Section 138 of Negotiable Instruments Act, and

sentenced him to pay compensation, which has to be twice the cheque

amount.

5.I have heard the learned counsel appearing for the appellant and

carefully perused the materials placed on record.

6.The case of the appellant/complainant is that on 01.11.2017, the

appellant/complainant gave a sum of Rs.1,00,000/- to the respondent

and further on, 13.11.2017, he gave a sum of Rs.10,000/- to the

respondent, as a donation, by believing the promise made by the

respondent/accused to secure a job at C.M.C, Hospital to the appellant.

But it is alleged that the respondent failed to secure employment as

promised by him. Later the appellant asked the respondent to repay the https://www.mhc.tn.gov.in/judis Page No.4/11 Crl.A.No.408 of 2021

said amount, therefore, the respondent issued a cheque towards repaying

the above said amount. When it was presented to the bank for collection,

the same was returned as “Insufficient funds”, therefore, the appellant

sent a legal notice on 14.05.2018 and the respondent has also replied for

the same on 31.05.2018, by denying all the averments made in the legal

notice. Thereafter, a private complaint was filed before the Judicial

Magistrate (FTC), Vellore, for the offence under Section 138 of the

Negotiable Instruments Act, 1881, against the respondent. The learned

Judicial Magistrate, taken the case on file in STC.No.104 of 2018 and

after considering the arguments on both sides, dismissed the case and

acquitted the accused/respondent herein. Hence, the present appeal is

filed before this Court.

7.Since, this Court is a final Court of fact finding, it can re-

appreciate the entire evidence for giving independent findings.

Accordingly, this Court re-appreciates the entire evidence and

given the following findings.

9.Admittedly, the respondent/accused had issued a cheque in

favour of the appellant/complainant. When the cheque was

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presented for collection in the bank, the same was returned with a

memo that “there is no sufficient funds in the accounts of the

respondent/accused” to honour the cheque. Therefore the

appellant/ complainant sent a notice on 14.05.2018 and

respondent/accused sent a reply notice on 31.05.2018 by denying

all the contents stated in the said notice. Therefore, the

appellant/complainant has filed a private complaint against the

respondent, before the Trial Court.

10.In order to substantiate his averments made in the

complaint, the appellant examined himself as P.W.1 and six

documents were marked as Ex.P1 to P6. On the side of the

respondent/accused, one V.Venkata Subramaniyam was examined

as R.W.1 and no document was produced.

11.The learned Trial Judge, after considering the oral and

documentary evidence placed before him, dismissed the complaint

on the ground that the consideration in this case is against the

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public policy, and it is not legally enforceable debt, as per Section

23 and illustration (f) of the Indian Contract Act, 1872.

11.Though the learned counsel for the appellant has

vehemently contented that consideration is not against public policy

and it is not barred under Section 23 of the Indian Contract Act, and

it is legally enforceable debt, the learned Trial Judge has referred to

illustration (f) to Section 23 of the Indian Contract Act and

concluded that one who made promise to obtain employment in any

of the Public Services, such promise or agreement to do so is void

and the payment of consideration thereof is unlawful. In this case,

the employment sought for by the appellant is not in any public

service, it is only from the C.M.C Hospital at Vellore, which is a

private institution in which only, for getting employment to the

appellant, the respondent/accused said to have been made promise.

Therefore, as per the illustration (f) of the Section 23 of the Indian

Contract Act, CMC, Hospital is not a public service. Further, the

respondent/accused issued a receipt for the donation paid by the

https://www.mhc.tn.gov.in/judis Page No.7/11 Crl.A.No.408 of 2021

appellant, hence, the amount said to have been paid by the

appellant is only considered as a donation and therefore such

payment will not fall under the category “legally enforceable debt”.

The execution of the cheque was admitted by the

respondent/accused and the signature of the cheque was also

admitted, but, the cheque was not issued for any legally enforceable

debt and liability.

12.On reading of the entire materials it shows that the

complainant accepted even in the grounds of appeal that he paid the

money as a donation, not as a bribe. If once he admitted that he

paid as a donation, it cannot be recovered and it is not a debt or

liability. Even assuming that it is a donation or gift, made by a

person, it could not be recovered, once gifted. Even if it is a gift,

it is also not recoverable and it will not fall under the explanation

to Section 138 of the NI, Act, “legally enforceable debt”.

Therefore, once the complainant admitted that he paid money to the

respondent as a donation for securing a job from C.M.C Hospital at

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Velore, even if it is a not a bribe still, it is not recoverable. Even it

is a gift, a gift not a debt or liability. Even if it is donation, it is

also not a debt or liability.

13.Therefore under those circumstances, admission of cheque

and execution of cheque is not a criteria in this case. It has to be

issued only for discharging debt or liability. The

respondent/accused has rebutted the presumption by

preponderance of probabilities, since the complainant himself

admitted that he has paid the money by way of donation, therefore,

according to this Court, donation will not fall under the debt or

liability, it cannot be treated as legally enforceable debt.

14.Normally, when the appeal is against the Judgment of acquittal

made by the Court below, this Court as an Appellate Court will not

interfere with the order of acquittal, unless the Appellate Court finds that

there is any perversity on the appreciation of the evidence or if there is

any compelling circumstances to interfere with the Judgment of acquittal

passed by the Trial Court. But, in this case, this Court does not find any

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perversity in the appreciation of evidence and also there is no compelling

reasons to reverse the Judgment passed by the learned Judicial Magistrate

(FTC), Vellore and there is no merits in the appeal. Prima facie no

grounds made out to admit the appeal and the appeal is liable to be

dismissed at the admission stage itself.

15.Accordingly, the Criminal Appeal is dismissed by confirming

the Judgment dated 10.03.2021, in S.T.C.No.104 of 2018, passed by the

learned Judicial Magistrate (Fast Track Court), Vellore.

07.09.2021

Index : Yes/No Internet : Yes/No Speaking/Non-Speaking order

pbl/klt

P.VELMURUGAN, J.

klt/pbl

To

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1. The Judicial Magistrate (Fast Track Court), Vellore.

2.The Public Prosecutor, High Court, Madras.

CRL.A.No.408 of 2021

07.09.2021

https://www.mhc.tn.gov.in/judis Page No.11/11