R.L. Sahu vs Mohd. Tahir Sheikh

T.P. Sharma, J.—By this petition u/s 482 of the Code of Criminal Procedure, 1973 (for short ''Code''), the petitioner has prayed for quashment of the order dated 20.9.2011 passed by the 1st Additional Sessions Judge, Durg, in Criminal Revision No. 154/2010, affirming the order dated 19.10.2010 passed by the Judicial Magistrate First Class, Durg, in unregistered criminal complaint case in between R.L. Sahu v. Mo. Tahir Sheikh, whereby the trial Court has dismissed the complaint filed by the petitioner against the respondent for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act'') on the ground that cheque issued for repayment of money demanded and received for providing job was not for payment of debt or liability legally recoverable under the law. As per allegation made in the complaint the respondent has demanded money for providing job from the petitioner and finally received Rs. 3,40,000. Respondent failed to provide service/job. Being demanded the respondent gave two cheques for payment of such dues. Cheques issued by the respondent were presented for encashment to the bank, same were dishonored. After serving the notice u/s 138 of the Act the petitioner has filed complaint for the offence punishable u/s 138 of the Act. After examination of the complainant u/s 200 of the Cr.P.C. and hearing the complainant the trial Court has dismissed the complaint on the ground that cheques have not been issued for payment debt or liability legally recoverable. Same was challenged before the revisional Court and the revisional Court has also dismissed the revision.

I have heard learned counsel for the parties, perused the copy of the complaint, copy of the order impugned and other documents filed on behalf of the petitioner.

Learned counsel for the petitioner submits that as per first part of allegation made in the complaint the respondent has demanded money for providing job. Aforesaid agreement was not lawful, the respondent was not entitled to claim money for providing job from the petitioner. The respondent has received money for which he was not entitled to receive or retain. Second part of allegation made in the complaint clearly reveals that the respondent has issued two cheques for payment of money which he has illegally received for which he was not entitled to receive or retain, but the petitioner was legally entitled to receive such amount or to take back such amount, therefore, second part of the agreement i.e. issuance of cheques for discharge of aforesaid liability was not prohibited under the law inter alia, the petitioner was entitled to recover such amount and the respondent was legally under obligation to repay such amount, therefore, by dismissing the complaint and affirming such order both the Courts below have committed illegality.

Learned counsel for the petitioner placed reliance in the matter of Saseendra Verma Raj E.K. v. State of Kerala and another 2008 (2) DCR 519 in which the High Court of Kerala has held that issuance of cheque for return of money taken for securing job, such agreement is neither illegal and nor opposed to public policy, therefore, the person in whose favour cheque is issued is legally entitled to recover the same.

On the other hand, learned counsel for the respondent opposes the petition and submits that both the parts of agreement was illegal and against the public policy. Initial agreement for providing job was illegal, consideration received for illegal purpose and its recovery or subsequent agreement relating to recovery of such illegal consideration is also illegal and against the public policy, therefore, complaint for the offence punishable u/s 138 of the Act was not maintainable under the law and the both the Courts below have rightly dismissed the complaint and revision.

Learned counsel for the respondent placed reliance in the matter of Virender Singh v. Laxmi Narain and others 2007 Crl. LJ 2262 in which the High Court of Delhi has held that agreement between the parties for securing the job on payment of money is void, therefore, consideration therein being unlawful and parties being in pari delicto, therefore aforesaid consideration cannot be recovered and no legally enforceable debt or liability for discharge exists.

In the present case, admittedly as per allegation made in the complaint the respondent has demanded money for providing job from the petitioner. The petitioner has paid money for getting job, but the respondent has failed to provide such job, thereafter being demanded the respondent has issued two cheques for return of money, which he has received for providing job to the petitioner.

Apparently, it appears that first part of agreement relating to demand and receipt of consideration by the respondent for securing job to the petitioner was void. As held by the High Court of Delhi in the matter of Virender Singh (supra), for the purpose of recovery of such consideration parties being in pari delicto, therefore, cheques were not for payment of debt or discharge of liability legally enforceable.

While dealing with the same question the High Court of Kerala in the matter of Saseendra Verma Raj E.K. (supra) has distinguished the case of Virender Singh and has held that second part of agreement was for correction of mistake/illegality committed by the respondent.

While dealing with the question of doctrine of pari delicto the Supreme Court in the matter of Mohd. Salimuddin Vs. Misri Lal and Another, has held that loan advanced by tenant to landlord to secure tenancy under unlawful agreement and 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 under:

... 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 parti delicto is to add insult to injury, and to negate the very purpose of the provision designed for his protection. The doctrine of parti 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...

While dealing with the such question i.e. maxim peri delicto in absence or 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 Vs. Prahlad Rai and Others, 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.

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.

While dismissing the complaint and affirming such order both the Courts below have not considered the aforesaid legal position and thereby committed illegality. Consequently, the petition deserves to be allowed and is hereby allowed and orders dated 20.9.2011 and 19.10.2010 are hereby quashed. Case is remitted back to the Court of Judicial Magistrate First Class, Durg for passing the order afresh in accordance with Chapter XV of the Code.