JUDGMENT : (Rakesh Kainthla, J.) Since both these revision petitions emanate out of a common order dated 11.01.2012, passed by learned Special Judge, Sirmour at Nahan, (Learned Trial Court) hence, the same are taken up together for consideration and disposal by way of a common judgment. 2. The present revision petitions are directed against the order dated 11.01.2012, passed by learned Special Judge, Sirmour at Nahan, Himachal Pradesh, vide which an amount of Rs.14,50,000/- along with interest was ordered to be paid to Ashutosh Gupta (Petitioner in Cr. Revision No. 108 of 2012) (applicant before the learned Trial Court) subject to furnishing indemnity and surety bonds with an undertaking to pay the amount to the person held entitled to it by the Civil Court, High Court or Hon’ble Supreme Court and the applications filed by Vinoj Kumar Sharma and Vijay Laxmi (petitioners in Cr. Revision No. 18 of 2012) (applicants before learned Trial Court) were dismissed. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 3. Briefly stated the facts giving rise to the present revision petitions are that an F.I.R. No. 233 of 2006 dated 09.11.2006 was registered at Police Station Nahan against Vinoj Kumar Sharma for the commission of an offence punishable under Section 13 (1) (e) of the Prevention of Corruption Act, 1988 (for short P.C. Act). The police investigated the matter. Vinoj Kumar issued a cheque in the name of Atin Bansal, who transferred the amount mentioned in the cheque to the account of M/s Shubham Finance & Insurance at the instance of Ashutosh Gupta. The police checked the accounts and found that no cognizable offence was committed. Accordingly, the police filed a final report seeking the cancellation of the F.I.R. 4. Ashutosh Gupta and Vinoj Kumar Sharma filed separate applications claiming the amount of Rs.14,50,000/- deposited in the bank. Ashutosh Gupta asserted that his account was seized by the police. He had no connection with Vinoj Kumar Sharma. He had collected the money for his business and was unable to withdraw it due to the freezing of his account; therefore, he prayed that he be permitted to utilize the money by de-freezing his account. 5. Ashutosh Gupta asserted that his account was seized by the police. He had no connection with Vinoj Kumar Sharma. He had collected the money for his business and was unable to withdraw it due to the freezing of his account; therefore, he prayed that he be permitted to utilize the money by de-freezing his account. 5. Vinoj Kumar Sharma also applied for the release of the amount, asserting that Vijay Laxmi had issued a cheque of Rs.14,50,000/- in favour of Atin Bansal with instructions to deposit the amount mentioned in the cheque in the account of Ashutosh Gupta. This amount was handed over to Ashutosh Gupta as a trustee. Atin Bansal deposited the amount in his account and transferred the money to the account of M/s Shubham Finance & Insurance. The applicant, Vinoj Kumar Sharma, and his wife were the owners of the money and Ashutosh Gupta was the custodian of the amount on their behalf. The police seized the bank account but subsequently filed a cancellation report. The report was accepted by the Court. Ashutosh Gupta had earlier applied for releasing the amount, but his application was dismissed on 09.07.2018. Ashutosh Gupta had also filed a Civil Suit titled Ashutosh Gupta vs. Punjab National Bank, which was pending disposal before learned Civil Judge (Jr. Division) Nahan, H.P. He also filed a writ petition before the High Court, which was pending disposal. The applicants Vinoj and Vijay Laxmi were the legal owners of the amount, therefore, it was prayed that the amount be released in their favour. 6. Learned Trial Court held that the police had submitted a cancellation report, which was accepted by the Court. The order passed in the interim application will not prevent the Court from passing an appropriate order regarding the disposal of the money after the conclusion of the trial. The investigating officer had categorically stated that the money was not tainted. There was no entrustment. Vinoj Kumar Sharma was a stranger to the amount deposited in the account of Ashutosh Gupta. Therefore, money was ordered to be released in favour of Ashutosh Gupta, subject to the furnishing of the bonds. 7. Being aggrieved by the orders passed by learned Trial Court, both Ashutosh Gupta and Vinoj Kumar Sharma & Vijay Laxmi have filed separate revisions. Vinoj Kumar Sharma was a stranger to the amount deposited in the account of Ashutosh Gupta. Therefore, money was ordered to be released in favour of Ashutosh Gupta, subject to the furnishing of the bonds. 7. Being aggrieved by the orders passed by learned Trial Court, both Ashutosh Gupta and Vinoj Kumar Sharma & Vijay Laxmi have filed separate revisions. It was asserted in the revision petition filed by Ashutosh Gupta that the learned Trial Court erred in imposing a condition. The police had specifically stated that the money was not tainted and Ashutosh Gupta was entitled to use it. No offence was committed regarding the money, and no condition could have been imposed. Therefore, the conditions imposed by the learned Trial Court should be set aside, and the amount should be ordered to be paid to petitioner Ashutosh Gupta without any condition. 8. In the revision petition filed by Vinoj Kumar Sharma and Vijay Laxmi, it was asserted that money was held in trust by Ashutosh Gupta. The Court had earlier refused to release the money to Ashutsoh, and it was not competent to review the order passed by a criminal court. The Investigating Officer had reported that the money was not tainted and applicants were entitled to the same. Therefore, it was prayed that the present petition be allowed and the amount be released in favour of Vinoj Kumar Sharma and Vijay Laxmi. 9. I have heard Mr. N.S. Chandel learned Senior Counsel, assisted by Ms. Shwetima Dogra and Mr. Digvijay Singh, learned counsel for the petitioner in Cr. Revision Petition No.18 of 2012 and for respondents Nos . 1 and 2 in Cr. Revision No. 108 of 2012, Mr. Nitin Thakur, learned Counsel for the petitioner in Cr. Revision No. 108 of 2012 and for respondent No.2 in Cr. Revision 18 of 2012 and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State. 10. Mr. N.S. Chandel learned Senior Counsel for the petitioners Vinoj Kumar Sharma and Vijay Laxmi in Cr. Revision Petition No.18 of 2012 and for respondents Nos. 1 and 2 in Cr. Revision No. 108 of 2012 submitted that the Investigating Officer had found that a cheque was issued in the name of Atin Bansal, who had deposited money in two accounts. The money belongs to applicants Vinoj and his wife. It was held in trust by Ashutosh Gupta. 1 and 2 in Cr. Revision No. 108 of 2012 submitted that the Investigating Officer had found that a cheque was issued in the name of Atin Bansal, who had deposited money in two accounts. The money belongs to applicants Vinoj and his wife. It was held in trust by Ashutosh Gupta. The Learned Trial Court erred in releasing the money to Ashutosh Gupta. Therefore, he prayed that the present petition be allowed, the order passed by the learned Trial Court be set aside and the amount be released in favour of Vinoj Kumar Sharma and his wife Vijay Laxmi. 11. Mr Nitin Thakur, learned counsel for the petitioner Ashutosh Gupta in Cr. Revision No. 108 of 2012 and for respondent No.2 in Cr. Revision No. 18 of 2012 submitted that the learned Trial Court had rightly ordered the release of the amount in favour of Ashutosh Gupta, but erred in imposing a condition of furnishing indemnity and surety bonds. The proceedings had concluded before the learned Trial Court and the learned Trial Court had no jurisdiction to ask for the bond. Hence, he prayed that the present petition be allowed and the amount be ordered to be released in favour of Ashutosh without any condition. 12. Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State in both petitions submitted that the money was deposited in the account of Ashutosh Gupta, and he is entitled to its release. 13. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 14. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh , (2022) 8 SCC 204 : (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not an appellate court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207: - “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction like the appellate court, and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 15. This position was reiterated in State of Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294, wherein it was observed: “13. The power and jurisdiction of the Higher Court under Section 397 Cr. P.C., which vests the court with the power to call for and examine records of an inferior court, is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept into such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor v. Ramesh Chandra, (2012) 9 SCC 460 , where the scope of Section 397 has been considered and succinctly explained as under: “ 12 . Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with the law. There has to be a well- founded error, and it may not be appropriate for the court to scrutinise the orders, which, upon the face of it, bear a token of careful consideration and appear to be in accordance with the law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex-facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in the exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much-advanced stage in the proceedings under the CrPC.” 16. The present revision has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 17. Mr. N.S. Chandel, learned Senior Counsel for Vinoj Kumar Sharma and Vijay Laxmi submitted that the learned Trial Court had declined to release the amount in favour of Ashutosh Gupta vide order dated 09.07.2008. The learned Trial Court could not have reviewed its earlier order and released the amount to Ashutosh Gupta while passing the impugned order. This submission is not acceptable. It is apparent from the copy of the order (Annexure P-1) that the same was passed during the pendency of the proceedings till the final disposal of the case. It is undisputed that the police had filed a cancellation report, which was accepted by the Court. Hence, the case was finally disposed of. This submission is not acceptable. It is apparent from the copy of the order (Annexure P-1) that the same was passed during the pendency of the proceedings till the final disposal of the case. It is undisputed that the police had filed a cancellation report, which was accepted by the Court. Hence, the case was finally disposed of. Any interim order effective till the final disposal of the case ceased to exist after the disposal of the case and the Court was competent to release the amount. The Court had earlier made an arrangement for the disposal of the case property during the pendency of the proceedings and would not be bound by such an arrangement after the disposal of the case. 18. It is an admitted case that police had registered the F.I.R. against Vinoj Kumar Sharma. The status report filed by the police before the learned Trial Court also shows that money was transferred to Ashutosh Gupta to prevent it from being seized by the police. Thus, the purpose of the transfer was to defeat the provision of law namely the seizure of the amount by the police. Vinoj Kumar Sharma had transferred the money to Ashutosh Gupta with the understanding that it would be retained by Ashutosh Gupta for the benefit of Vinoj Kumar Sharma, and the money would be saved from the attachment by the police. It was laid down by the Hon'ble Supreme Court in Loop Telecom & Trading Ltd. v. Union of India , (2022) 6 SCC 762 : (2022) 3 SCC (Cri) 733: (2022) 3 SCC (Civ) 563: 2022 SCC OnLine SC 260 that where both the parties were party to an illegal agreement, the restitution cannot be claimed. It was observed: “60. Section 65 of the Contract Act recognises the principle of restitution, particularly when a contract is discovered to be or becomes void. It stipulates thus: “ 65. Obligation of person who has received advantage under void agreement, or contract that becomes void .—When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.” 61. In Pollock & Mulla's seminal treatise on the Contract Act [R. Yashod Vardhan and Chitra Narayan, Pollock & Mulla's Indian Contract and Specific Relief Acts , Vol. I (16th Edn., LexisNexis). It has been noted that Section 65 does not operate in derogation of the maxim in pari delicto potior est conditio possidentis: “Section 65 is not in derogation of the common law maxims ex dolo malo non oritur actio and in pari delicto potior est conditio possidentis; and only those cases as are not covered by these maxims can attract the application of the provision of Section 65 on the footing that when an agreement in its inception was not void and it was not hit by the maxims but is discovered to be void subsequently, right to restitution of the advantage received under such agreement is secured on equitable consideration. The section has been held not to apply where both parties knew of the illegality at the time the agreement was made and were in pari delicto.” Thus, the application of Section 65 of the Contract Act, of 1872 has to be limited to those cases where the party claiming restitution itself was not in pari delicto. 62. In Principles of Law of Restitution [ Graham Virgo, Principles of the Law of Restitution (3rd Edn., OUP) p. 710], it has been noted that all claims for restitution are subject to a defence of illegality. The genesis of this defence is in the legal maxim ex turpi causa non oritur actio (no action can arise from a bad cause). A court will not assist those who aim to perpetuate illegality. This rule was initially recognised by the House of Lords in its decision in Holman v. Johnson [Holman v. Johnson, (1775) 1 Cowp 341 at p. 343: 98 ER 1120 at p. 1121]. Lord Mansfield held: (ER p. 1121) “The objection that a contract is immoral or illegal as between the plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so. The principle of public policy is this: ex dolo malo non oritur actio. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so. The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted.” (emphasis supplied) 63. The Principles of Law of Restitution subsequently notes that in pari delicto potior est conditio possidentis is a way of qualifying the ex turpi causa defence [ Graham Virgo, The Principles of the Law of Restitution (3rd Edn., OUP) p. 711]. “This in pari delicto principle enables the court to analyse the particular circumstances of the case to determine whether the claimant is less responsible for the illegality than the defendant, for then, as between the claimant and the defendant, the just result is that the claimant should not be denied relief, since the parties are not in pari delicto. But where the claimant is more responsible for the illegality or the parties are considered to be equally responsible, the in pari delicto principle applies and restitution will be denied.” (emphasis supplied) 64. Thus, when the party claiming restitution is equally or more responsible for the illegality of a contract, they are considered in pari delicto. 65. In the decision of the UK Supreme Court in Patel v. Mirza [Patel v. Mirza, (2016) 3 WLR 399 : 2016 UKSC 42 ], Lord Sumption, JSC has succinctly explained the nature of the inquiry to determine whether a party is in pari delicto: (WLR pp. 466-67, paras 241-43) “241. To the principle that a person may not rely on his own illegal act in support of his claim, there are significant exceptions, which are as old as the principle itself and generally inherent in it. These are broadly summed up in the proposition that the illegality principle is available only where the parties were in pari delicto in relation to the illegal act. This principle must not be misunderstood. These are broadly summed up in the proposition that the illegality principle is available only where the parties were in pari delicto in relation to the illegal act. This principle must not be misunderstood. It does not authorise a general inquiry into their relative blameworthiness. The question is whether they were [ Ed. The word between two asterisks has been emphasised in the original as well.] legally [ Ed. The word between two asterisks has been emphasised in the original as well.] on the same footing. The case law discloses two main categories of cases where the law regards the parties as not being in pari delicto, but both are based on the same principle. 242. One comprises cases in which the claimant's participation in the illegal act is treated as involuntary: for example, it may have been brought about by fraud, undue influence or duress on the part of the defendant who seeks to invoke the defence. … 243. The other category comprises cases in which the application of the illegality principle would be inconsistent with the rule of law, which makes the act illegal. The paradigm case is a rule of law intended to protect persons such as the plaintiff against exploitation by the likes of the defendant. Such a rule will commonly require the plaintiff to have a remedy notwithstanding that he participated in its breach.” emphasis supplied) Thus, in determining a claim of restitution, the claiming party's legal footing in relation to the illegal act (and in comparison to the defendant) must be understood. Unless the party claiming restitution participated in the illegal act involuntarily or the rule of law offers them protection against the defendant, they would be held to be in pari delicto and therefore, their claim for restitution will fail. 66. The position in India is similar to that of Kuju Collieries Ltd. v. Jharkhand Mines Ltd. [Kuju Collieries Ltd. v. Jharkhand Mines Ltd., (1974) 2 SCC 533 ] , where a Bench of three learned Judges of this Court relied on a judgment [Budhulal v. Deccan Banking Co., 1954 SCC OnLine Hyd 187: AIR 1955 Hyd 69: ILR 1955 Hyd 101] of a five-Judge Bench of the then Hyderabad High Court. While construing the provisions of Section 65, this Court held: ( Kuju Collieries case [Kuju Collieries Ltd. v. Jharkhand Mines Ltd., (1974) 2 SCC 533 ], SCC pp. While construing the provisions of Section 65, this Court held: ( Kuju Collieries case [Kuju Collieries Ltd. v. Jharkhand Mines Ltd., (1974) 2 SCC 533 ], SCC pp. 536-37, para 8) “8. A Full Bench of five Judges of the Hyderabad High Court in Budhulal v. Deccan Banking Co. [Budhulal v. Deccan Banking Co., 1954 SCC OnLine Hyd 187: AIR 1955 Hyd 69: ILR 1955 Hyd 101] speaking through our Brother, Jaganmohan Reddy, J. as he then was, referred with approval to these observations [Harnath Kuar v. Indar Bahadur Singh, 1922 SCC OnLine PC 64] of the Privy Council. They then went on to refer to the observations of Pollock and Mulla in their treatise on Indian Contract and Specific Relief Acts, 7th Edn. to the effect that Section 65 of the Contract Act, 1872 does not apply to agreements which are void under Section 24 by reason of an unlawful consideration or object and there being no other provision in the Act under which money paid for an unlawful purpose may be recovered back, an analogy of English law will be the best guide. They then referred to the reasoning of the learned authors that if the view of the Privy Council is right, namely, that “agreements discovered to be void” apply to all agreements which are ab initio void including agreements based on unlawful consideration, it follows that the person who has paid money or transferred property to another for an illegal purpose can recover it back from the transferee under this section even if the illegal purpose is carried into execution and both the transferor and transferee are in pari delicto. The Bench then proceeded to observe: ( Budhulal case [Budhulal v. Deccan Banking Co., 1954 SCC OnLine Hyd 187: AIR 1955 Hyd 69: ILR 1955 Hyd 101 ], SCC OnLine Hyd paras 33-36) ‘33. In our opinion, the view of the learned authors is neither supported by any of the subsequent Privy Council decisions nor is it consistent with the natural meaning to be given to the provisions of Section 65. The section using the words “when an agreement is discovered to be void” means nothing more nor less than when the plaintiff comes to know or finds out that the agreement is void. The section using the words “when an agreement is discovered to be void” means nothing more nor less than when the plaintiff comes to know or finds out that the agreement is void. The word “discovery” would imply the pre- existence of something which is subsequently found out and it may be observed that Section 66, Hyderabad Contract Act makes the knowledge (Ilm) of the agreement being void as one of the pre-requisites for restitution and is used in the sense of an agreement being discovered to be void. If knowledge is an essential requisite, even an agreement ab initio void can be discovered to be void subsequently. There may be cases where parties enter into an agreement honestly thinking that it is a perfectly legal agreement, and where one of them sues the other or wants the other to act on it, it is then that he may discover it to be void. There is nothing specific in Section 65 of the Contract Act, 1872 or its corresponding section of the Hyderabad Contract Act to make it inapplicable to such cases. 34. A person who, however, gives money for an unlawful purpose knowing it to be so, or in such circumstances that knowledge of illegality or unlawfulness can as a finding of fact be imputed to him, the agreement under which the payment is made cannot on his part be said to be discovered to be void. The criticism is that if the aforesaid view is right then a person who has paid money or transferred property to another for an illegal purpose can recover it back from the transferee under this section even if the illegal purpose is carried into execution, notwithstanding the fact that both the transferor and transferee are in pari delicto, in our view, overlooks the fact that the courts do not assist a person who comes with unclean hands. In such cases, the defendant possesses an advantage over the plaintiff — in pari delicto potior est conditio defendentio. 35. Section 84 of the Trusts Act, 1882, however, has made an exception in a case: “ 84. Transfer for illegal purposes . In such cases, the defendant possesses an advantage over the plaintiff — in pari delicto potior est conditio defendentio. 35. Section 84 of the Trusts Act, 1882, however, has made an exception in a case: “ 84. Transfer for illegal purposes . — Where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.” 36. This specific provision made by the legislature cannot be taken advantage of in derogation of the principle that Section 65, Contract Act, is inapplicable where the object of the agreement was illegal to the knowledge of both parties at the time it was made. In such a case, the agreement would be void ab initio and there would be no room for the subsequent discovery of that fact.’ We consider that this criticism, as well as the view taken by the Bench, is justified. It has rightly pointed out that if both the transferor and transferee are in pari delicto, the courts do not assist them.” (emphasis supplied) While upholding the view of the Hyderabad High Court, this Court held “it [the Full Bench [ Budhulal v. Deccan Banking Co., 1954 SCC OnLine Hyd 187: AIR 1955 Hyd 69: ILR 1955 Hyd 101 ] of the Hyderabad High Court] has rightly pointed out that if both the transferor and transferee are in pari delicto the courts do not assist them”. 67. In an earlier decision of this Court in Immani Appa Rao v. Gollapalli Ramalingamurthi [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739 : AIR 1962 SC 370] (“Immani Appa Rao”) , a three-Judge Bench held that where both the parties before the Court are confederates in the fraud, the Court must lean in favour of the approach which would be less injurious to public interest. P.B. Gajendragadkar, J. (as he then was), speaking for the Court, held: (AIR p. 375, para 12) “12. Reported decisions bearing on this question show that consideration of this problem often gives rise to what may be described as a battle of legal maxims. P.B. Gajendragadkar, J. (as he then was), speaking for the Court, held: (AIR p. 375, para 12) “12. Reported decisions bearing on this question show that consideration of this problem often gives rise to what may be described as a battle of legal maxims. The appellants emphasised that the doctrine which is pre-eminently applicable to the present case is ex dolo malo non oritur actio or ex turpi causa non oritur actio. In other words, they contended that the right of action cannot arise out of fraud or out of transgression of law; and according to them it is necessary in such a case that possession should rest where it lies in pari delicto potior est conditio possidentis; where each party is equally in fraud the law favours him who is actually in possession, or where both parties are equally guilty the estate will lie where it falls. On the other hand, Respondent 1 argues that the proper maxim to apply is nemo allegans suam turpitudinum audiendum est, whoever has first to plead turpitudinum should fail; that party fails who first has to allege fraud in which he participated. In other words, the principle invoked by Respondent 1 is that a man cannot plead his own fraud. In deciding the question as to which maxim should govern the present case, it is necessary to recall what Lord Wright, M.R., observed about these maxims in Berg v. Sadler [Berg v. Sadler, (1937) 2 KB 158 (CA)] , KB at p. 162. Referring to the maxim ex turpi causa non oritur actio, Lord Wright observed that : (KB p. 162) ‘… This [maxim], though veiled in the dignity of learned language, is a statement of a principle of great importance; but like most maxims, it is much too vague and much too general to admit of application without a careful consideration of the circumstances and of the various definite rules which have been laid down by the authorities.’ Therefore, in deciding the question raised in the present appeal, it would be necessary for us to consider carefully the true scope and effect of the maxims pressed into service by the rival parties, and to enquire which of the maxims would be relevant and applicable in the circumstances of the case. It is common ground that the approach of the Court in determining the present dispute must be conditioned solely by considerations of public policy. Which principle would be more conducive to, and more consistent with, public interest? that is the crux of the matter. To put it differently, having regard to the fact that both parties before the Court are confederates in the fraud, which approach would be less injurious to the public interest? Whichever approach is adopted, one party would succeed and the other would fail, and so it is necessary to enquire as to which party's success would be less injurious to the public interest.” (emphasis supplied) 68. The principle which was enunciated in the judgment in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739 : AIR 1962 SC 370] has been more recently applied in a decision of a three-Judge Bench of this Court in Narayanamma v. Govindappa [Narayanamma v. Govin dappa, (2019) 19 SCC 42 : (2020) 4 SCC (Civ) 363]. The Court held: ( Narayanamma case [ Narayanamma v. Govindappa , (2019) 19 SCC 42 : (2020) 4 SCC (Civ) 363 ], SCC p. 59, para 28) “28. Now, let us apply the other test laid down in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739: AIR 1962 SC 370 ]. At the cost of repetition, both parties are common participators in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739: AIR 1962 SC 370 ] , if the decree is granted in favour of the plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the defendants, no doubt that they would stand to benefit even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering assistance, which is purely of a passive character. As against this, if the balance is tilted towards the defendants, no doubt that they would stand to benefit even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering assistance, which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739: AIR 1962 SC 370 ], the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to the public interest than the former.” 69. Hence, in adjudicating a claim of restitution under Section 65 of the Contract Act, the court must determine the illegality which caused the contract to become void and the role the party claiming restitution has played in it. If the party claiming restitution was equally or more responsible for the illegality (in comparison to the defendant), there shall be no cause for restitution. This has to be determined by the facts of each case. 19. Similar is the judgment G.T. Girish v. Y. Subba Raju (2022) 12 SCC 321 , wherein it was observed:- In pari delicto potiorestconditiodefendentis 67. The principle of in pari delicto potiorestconditiodefendentis is a maxim which we must bear in mind. We need only notice the following discussion by this Court. The decision of this Court in Kedar Nath Motani [Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861 ] comes to mind: (AIR p. 216, para 9) “9. … Where both 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.” 68. This Court in Kedar Nath Motani [Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861] also referred to the following statement by Lord Mansfield in Holman v. Johnson [Holman v. Johnson, (1775) 1 Cowp 341: 98 ER 1120 ], wherein it was held as follows : ( Kedar Nath Motani case [Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861 ], AIR pp. 217-18, para 12) “12. 217-18, para 12) “12. The law was stated as far back as 1775 by Lord Mansfield in Holman v. Johnson [Holman v. Johnson, (1775) 1 Cowp341: 98 ER 1120] , Cowp at p. 343, ER at p. 1121 in the following words : (ER p. 1121) ‘… The principle of public policy is this: ex dolomalo non orituractio. No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potiorestconditiodefendentis.’ There are, however, some exceptions or “supposed exceptions” to the rule of turpi causa. In Salmond and William on Contracts, four such exceptions have been mentioned, and the fourth of these exceptions is based on the right of restitutio in integrum, where the relationship of trustee and beneficiary is involved. Salmond stated the law in these words at p. 352 of his book (2nd Edn.): ‘So if A employs B to commit a robbery, A cannot sue B for the proceeds. The position would be the same if A were to vest the property in B upon trust to carry out some fraudulent scheme: A could not sue B for an account of the profits. But if B, who is A's agent or trustee, receives on A's account money paid by C pursuant to an illegal contract between A and C the position is otherwise and A can recover the property from B, although he could not have claimed it from C. In such cases, public policy requires that the rule of turpis causa shall be excluded by the more important and imperative rule that agents and trustees must faithfully perform the duties of their office.’ Williston in his Book on Contracts (Revised Edn.), Vol. VI has discussed this matter at p. 5069, Para 1785 and in paras 1771 to 1774, he has noted certain exceptional cases, and has observed as follows: ‘If recovery is to be allowed by either partner or principal in any case, it must be where the illegality is of so light or venial a character that it is deemed more opposed to public policy to allow the defendant to violate his fiduciary relation with the plaintiff than to allow the plaintiff to gain the benefit of an illegal transaction.’ Even in India, certain exceptions to the rule of turpi causa have been accepted. Examples of those cases are found in Palaniyappa Chettiar v. Chockalingam Chettiar [Palaniyappa Chettiar v. Chockalingam Chettiar, 1920 SCC OnLine Mad 152 : ILR (1921) 44 Mad 334] and Bhola Nath v. Mul Chand [Bhola Nath v. Mul Chand, 1903 SCC OnLine All 21: ILR (1903) 25 All 639 ] .” (emphasis supplied) 69. We may also notice the following statement by this Court in Kedar Nath Motani [Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861] : (AIR pp. 218-19, para 15) “15. The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by misstating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.” 71. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.” 71. In Narayanamma [ Narayanamma v. Govindappa , (2019) 19 SCC 42 : (2020) 4 SCC (Civ) 363] , this Court was considering a suit for specific performance, which was resisted on the ground that the agreement to sell was contrary to the provisions of the statute. Section 61 of the Karnataka Land Reforms Act, 1961 provided that no land for which occupancy was granted, shall within 15 years of the order of the Tribunal, be transferred by sale, inter alia. A partition was permitted. Equally, a mortgage could be effected to secure a loan. Drawing support from the judgment of this Court in Kedar Nath [Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861 ] , this Court, inter alia, as follows : ( Narayanamma case [ Narayanamma v. Govindappa , (2019) 19 SCC 42 : (2020) 4 SCC (Civ) 363] , SCC pp. 52-53, paras 15-16) “15. The three-Judge Bench [ Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861] of this Court, after referring to the aforesaid judgments, speaking through M. Hidayatullah, J. (as his Lordship then was), observes thus : ( Kedar Nath Motani case [Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861 ] , AIR pp. 218-19, para 15) ‘15. The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. If the illegality be trivial or venial, as stated by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by misstating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.’ 16. It could thus be seen, that this Court has held that the correct position of law is that, what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. This Court further held, that if the illegality is trivial or venial and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. It has further been held, that a strict view must be taken of the plaintiff's conduct and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by misstating the facts. However, if the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose is achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.” (emphasis supplied) 72. In Narayanamma [ Narayanamma v. Govindappa ( 2019) 19 SCC 42 : (2020) 4 SCC (Civ) 363] , this Court further held as follows : (SCC pp. 58-59, paras 24-26) “24. The transaction between the late Bale Venkataramanappa and the plaintiff is not disputed. Initially, the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the plaintiff. In Narayanamma [ Narayanamma v. Govindappa ( 2019) 19 SCC 42 : (2020) 4 SCC (Civ) 363] , this Court further held as follows : (SCC pp. 58-59, paras 24-26) “24. The transaction between the late Bale Venkataramanappa and the plaintiff is not disputed. Initially, the said Bale Venkataramanappa had executed a registered mortgage deed in favour of the plaintiff. Within a month, he entered into an agreement to sell wherein, the entire consideration for the transfer as well as handing over of the possession was acknowledged. It could thus be seen, that the transaction was nothing short of a transfer of property. Under Section 61 of the Reforms Act, there is a complete prohibition on such mortgage or transfer for 15 years from the date of grant. Sub-section (1) of Section 61 of the Reforms Act begins with a non-obstante clause. It is thus clear that the unambiguous legislative intent is that no such mortgage, transfer, sale, etc. would be permitted for 15 years from the date of grant. Undisputedly, even according to the plaintiff, the grant is of the year 1983, as such, the transfer in question in the year 1990 is beyond any doubt within the prohibited period of 15 years. Sub- section (3) of Section 61 of the Reforms Act makes the legislative intent very clear. It provides, that any transfer in violation of sub-section (1) shall be invalid and it also provides for the consequence for such invalid transaction. 25. Undisputedly, both, the predecessor-in-title of the defendant(s) as well as the plaintiff, are confederates in this illegality. Both, the plaintiff and the predecessor-in-title of the defendant(s) can be said to be equally responsible for the violation of law. 26. However, the ticklish question that arises in such a situation is:‘the decision of this Court would weigh on the side of which party’? As held by Hidayatullah, J. in Kedar Nath Motani [Kedar Nath Motani v. Prahlad Rai, AIR 1960 SC 213 : (1960) 1 SCR 861] , the question that would arise for consideration is as to whether the plaintiff can rest his claim without relying upon the illegal transaction or as to whether the plaintiff can rest his claim on something else without relying on the illegal transaction. Undisputedly, in the present case, the claim of the plaintiff is entirely based upon the agreement to sell dated 15-5-1990, which is clearly hit by Section 61 of the Reforms Act. There is no other foundation for the claim of the plaintiff except the one based on the agreement to sell, which is hit by Section 61 of the Act. In such a case, as observed by Taylor, in his “Law of Evidence” which has been approved by Gajendragadkar, J. inImmani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739 : AIR 1962 SC 370] , although illegality is not pleaded by the defendant nor sought to be relied upon him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it and will dismiss the action ex turpi causa non orituractio i.e. no polluted hand shall touch the pure fountain of justice. Equally, as observed in Story's Equity Jurisprudence , which again is approved in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739 : AIR 1962 SC 370] , where the parties are concerned with illegal agreements or other transactions, courts of equity following the rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the maxim in pari delicto potiorest conditio defendentiset possidentis.” (emphasis supplied) 73. This Court in Narayanamma [ Narayanamma v. Govindappa , (2019) 19 SCC 42 : (2020) 4 SCC (Civ) 363] finally found as follows : (SCC p. 59, para 28) “28. Now, let us apply the other test laid down in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739 : AIR 1962 SC 370] . At the cost of repetition, both the parties are common participator in the illegality. In such a situation, the balance of justice would tilt in whose favour is the question. As held in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739 : AIR 1962 SC 370], if the decree is granted in favour of the plaintiff on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law. As against this, if the balance is tilted towards the defendants, no doubt that they would stand benefited even in spite of their predecessor-in-title committing an illegality. However, what the court would be doing is only rendering assistance which is purely of a passive character. As held by Gajendragadkar, J. in Immani Appa Rao [ Immani Appa Rao v. Gollapalli Ramalingamurthi , (1962) 3 SCR 739 : AIR 1962 SC 370] , the first course would be clearly and patently inconsistent with the public interest whereas, the latter course is lesser injurious to the public interest than the former.” 20. Therefore, when both parties are at fault, the money lies where it is and it cannot be claimed through the intervention of the Court. In the present case, Vinoj Kumar Sharma and Vijay Laxmi transferred the money to Ashutosh to prevent it from its seizure by the police and they (Vinoj Kumar Sharma and Vijay Laxmi) will not be entitled to claim the amount on the ground that they had transferred it in trust to Ashutosh Gupta. The purpose of the transfer was to defeat the law and the law will not assist them in regaining the amount. 21. As per the case of applicants Vinoj Kumar Sharma and Vijay Laxmi, the money is owned by them and is held in the name of Ashutosh Gupta. This is a Benami transaction because the money was held in the name of a person on behalf of another. Section 3 of the Benami Transaction Prohibition Act 1988 (for short ‘Act’) prohibits the Benami transaction and Section 4 of the Act bars the right to recover the property held Benami with the intervention of the Court. Therefore, even if the plea of applicants Vinoj Kumar Sharma and Vijay Laxmi is accepted as correct that they had transferred the money in the name of Ashutosh Gupta to be retained by him for their benefit, they cannot seek the recovery of the money in view of Act (ibid). Hence, their claim cannot be allowed on this ground as well. 22. Learned Trial Court noticed that a civil suit was pending between the parties. Therefore, the dispute had not attained finality and the learned Trial Court was justified in imposing the condition. Hence, their claim cannot be allowed on this ground as well. 22. Learned Trial Court noticed that a civil suit was pending between the parties. Therefore, the dispute had not attained finality and the learned Trial Court was justified in imposing the condition. It was submitted that the civil suit has been withdrawn, however, this will not make any difference because the rights and liabilities of the parties are to be determined as they existed on the date of commencement of lis and any development during the pendency of the proceedings will not make any difference. The rights of the parties were yet to determined and the learned Trial Court was justified in imposing the condition of furnishing of indemnity as well as surety bond. 23. Therefore, there is no infirmity in the order passed by the learned Trial Court and the present petitions fail and the same are dismissed. 24 The present revision petitions are disposed of in aforesaid terms, so also pending application(s), if any. 25. Records of the learned Courts below be sent back forthwith along with a copy of this judgment.