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2014 DIGILAW 103 (JHR)

Sunil Kumar Jha v. State of Jharkhand

2014-01-16

R.R.PRASAD

body2014
ORDER By the Court.-This application has been filed for quashing of the order dated 8.8.2012 passed by the Sessions Judge, Bokaro in Cr. Rev. No. 86 of 2012 affirming the order dated 29.6.2011 passed by the Sub-divisional Judicial Magistrate, Bokaro in C.P. Case No. 597 of 2009 whereby and whereunder cognizance of the offence has been taken under Section 138 of the Negotiable Instrument Act. 2. Before adverting to the submissions advanced on behalf of the parties, case of the complainant needs to be taken notice of. 3. It is the case of the complainant opposite party No. 2 that he had cordial relation with the petitioner, who the other day conveyed the complainant that he had good relation with top officials of the Bokaro Steel Plant and as such, he may secure a job for him in Bokaro Steel Plant provided a sum of Rs. 3,50,000/- is paid to him. At the same time, he also assured that if he will fail to do so, he will be returning the money and in order to have faith on him, he gave a cheque of Rs. 3,50,000/- in favour of the complainant. When the petitioner failed to keep his promise, the petitioner asked the complainant to encash the cheque. When the cheque was presented before the Bank, it got dishonoured. Thereupon after giving statutory notice, a complaint case was lodged which was registered as Complaint Case No. 597 of 2009. When the cognizance under Section 138 of the Negotiable Instrument Act was taken, vide order dated 29.6.2011, it was challenged before the revisional Court. The revisional Court rejected the revision application. 4. Being aggrieved with those orders, this application has been filed. 5. The point which has been raised in this application is that admittedly the petitioner and the complainant entered into a contract whereby a sum of Rs. 3,50,000/- was paid by the complainant to the petitioner but the purpose for which it was given, it was never lawful and therefore, it can never be said that the cheque given by the petitioner which got dishonoured, was given towards legally enforceable debt and thereby the complaint cannot be maintained. 6. Learned counsel in support of his case has referred two decisions rendered in a case of Md. 6. Learned counsel in support of his case has referred two decisions rendered in a case of Md. Faizal Khan @ Faizal Khan v. State of Jharkhand and another, 2012 (3) JCR 15 (Jhr) and also in a case of Virendra Singh v. Laxmi Narain and another, 2007 (1) Crime 300. 7. As against this, Mrs. Vandana Singh, learned counsel appearing for the opposite party No. 2 submits that in view of the provision as contained in Section 139 of the Negotiable Instrument Act, presumption gets drawn that the holder of the cheque received the cheque of the nature referred to in Section 138 for discharge of any debt or other liability unless contrary is proved. In such event, this would not be the stage to go into the matter as to whether cheque has been given in discharge of debt legally enforceable or not as the issue needs to be agitated before the trial Court where burden would be upon the petitioner to prove that it has never been given in discharge of legally payable debt. 8. In support of her case, she has referred to a decision rendered in cases of Maruti Udyog Limited v. Narender and another, (1991) 1 SCC 113 ; Krishna Janardhan Bhat v. Dattatraya G. Hegde, 2008 (2) East Cr C 39 (SC) : (2008) 4 SCC 54 ; M.M.T.C. Ltd. and another v. Medchl Chemicals and Pharma (P) Ltd. and another, 2002 (1) East Cr C 49 (SC) : (2002) 1 SCC 234 and in a case of A.V. Murthy v. B.S. Nagabasavanna, 2002 (1) East Cr C 459 (SC) : (2002) 2 SCC 642 . 9. In the context of the submission, one needs to take notice of the provision as contained in Section 138 of the Negotiable Instrument Act which reads as under: "138. 9. In the context of the submission, one needs to take notice of the provision as contained in Section 138 of the Negotiable Instrument Act which reads as under: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or part, of any debt or other liability, 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 by an agreement made with that bank such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purpose of this section, 'debt or other liability' means a legally enforceable debt or other liability." 10. Explanation.-For the purpose of this section, 'debt or other liability' means a legally enforceable debt or other liability." 10. On perusal of the said provision, it does appear that Section 138 of the Act has following three ingredients : that there is legally enforceable debt that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which pre-suppose legally enforceable debt. And that the cheque so issued had been returned due to insufficiency of the fund. 11. The proviso appended to the said section provides for compliance with legal requirement before a complaint petition can be acted upon by a Court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability. 12. The said proposition has been laid down by the Hon'ble Supreme Court in a case of Krishna Janardhan Bhat v. Dattatraya G. Hegde (supra). 13. Having said so, one needs to take relevant provision of the Contract Act to find out as to whether agreement arrived at in between the complainant and the petitioner is enforceable or not ? Section 10 of the Contract Act does stipulates that an agreement is enforceable only if it is made for a lawful consideration and that lawful object. Further the provision as contained in Section 23 does stipulates that what kind of consideration and object are not lawful. Illustrations have been appended to do to show when consideration or object can be said to be unlawful. One of such illustrations has been given in clause (f) which reads as follows : "A promises to obtain for B employment in the public service and B promises to pay Rs. 100/- to A, the said agreement is void as the consideration for it is unlawful." 14. The fact of the case clearly falls within the realm of said illustration as it is the case of the complainant that on being promised that he will secure a job at Bokaro Steel Plant, a Government undertaking organization cheque of Rs. 3,50,000/- was given. 15. The fact of the case clearly falls within the realm of said illustration as it is the case of the complainant that on being promised that he will secure a job at Bokaro Steel Plant, a Government undertaking organization cheque of Rs. 3,50,000/- was given. 15. In such event, I am constrained to hold that the cheque had never been given in discharge of the debt legally payable. When this question has been raised before the revisional Court, the revisional Court by placing reliance on the decision rendered in a case of Md. Faizal Khan @ Faizal Khan v. State of Jharkhand and another (supra) did hold that the question raised need not to be gone into at this stage. It is true that this Court in the cases, referred to above declined to go into the matter on the issue as to whether cheque had been given in discharge of debt legally payable for the reason that facts upon which the case was brought were not clear as to whether promise was made to give employment in public service or in private service. But here it appears to be a specific case that promise was made to give employment in Bokaro Steel "Plant, a Government undertaking organization and thereby the object was certainly unlawful. 16. Here, I would refer to a decision rendered in a case of A.V. Murthy v. B.S. Nagabasavanna (supra) which matter came before the Hon'ble Supreme Court when it had been held that complaint was not maintainable as the cheque had been given against the debt which was barred by limitation. Their Lordships set aside the order after holding that the present case was not one that the cheque was drawn in respect of debt or liability which was completely barred from being enforced under law as there may be chances of a documentary evidence being proved amounting to acknowledgement reviving the period of limitation as it was never the case of the appellant before the Hon'ble Supreme Court that cheque was drawn in respect of debt or liability which was completely barred from being enforced under law. Their Lordships further observed that if cheque was drawn in respect of a debt or liability payable under wager contract, it could have been said that debt or liability is not legally enforceable as it is a claim which is prohibited. 17. Their Lordships further observed that if cheque was drawn in respect of a debt or liability payable under wager contract, it could have been said that debt or liability is not legally enforceable as it is a claim which is prohibited. 17. Likewise the case of M.M.T.C. Ltd. and another v. Medchl Chemicals and Pharma (P) Ltd. and another (supra) referred to on behalf of the petitioner is not helpful to the opposite party No. 2. There one of the points which has been taken by the party is that the cheques were issued as security and not for any debt or liability existing on the date they were issued. Their Lordships taking notice of the provision as contained in Section 139 of the Negotiable Instrument Act did hold that the Court was not correct in going into that issue at this stage prior to trial. 18. Under the circumstances, the complaint cannot be maintained and thereby the order passed by the revisional Court and also by the learned Magistrate taking cognizance of the offence under Section 138 of the Negotiable Instrument Act are hereby quashed. 19. In the result, this application stands allowed. Application allowed.