IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 15TH JULY 2008 / 24TH ASHADHA 1930 Crl.Rev.Pet.No. 1084 of 2003() ------------------------------ CRA.32/2000 of ADDL. SESSIONS COURT, VADAKARA CC.11/1998 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER: APPELLANT/ACCUSED: ------------------------------------ E.K.SASEENDRA VARMA RAJ, S/O. KRISHNAN NAMBOODIRI, TEACHER, K.R.HIGH SCHOOL PURAMERI, VARANAKKAD ILLAM, P.O. MANDOOR, PALATHARA, KANNUR DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI SRI.P.GOPINATH RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.M.KUNHIRAMAN, S/O. KELAPPAN, PUTHUKKUDI MEETHAL HOUSE, P.O. PALAYATTUNADA, IRINGAL, PALAYAD AMSOM. ADDL. R3 IMPLEADED P.M. DHARMARAJ, S/O. K.M. KUNCHIRAMAN, AGED 30 YEARS, RESIDING AT PUTHUKKUDIMUTHAL HOUSE, POST PALAYAD NADA, KOZHIKODE DISTRICT - AS PER ORDER DATED 1-09-2003 IN CM.APPLICATION NO. 8868 OF 2003. BY ADV. SRI.GHOSH YOHANNAN FOR ADDL.R SMT.THUSHARA.V FOR ADDL.R PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON 15/07/2008 PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 1084 of 2003 * * * * * * * * * * * * * * * * * * Dated: 16-07-2008 ORDER In this Revision filed under Sec. 397 read with Sec. 401 Cr.P.C. the petitioner who was the accused in C.C. 11 of 1998 on the file of the J.F.C.M. Vadakara for an offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 challenges he conviction entered and the sentence passed concurrently against him by the courts below. 2. The case of the 2 nd respondent/complainant in the private complaint filed by him can be summarised as follows: The complainant's son is a B.Ed trained hand. When the complainant enquired with the accused whether his son could get a teacher's post in any of the high schools in the area, the accused made him believe that his family has got the right to Crl.R.P. No. 1084 of 2003 -:2:- appoint qualified hands to teacher's post in the K.R. High School, Purameri and demanded Rs. 1,75,000/- as donation to the management of the school. He also insisted that a sum of Rs. 75,000/- has to be given as advance . Accordingly, during the month of October 1995 the complainant advanced a sum of Rs. 50,000/-. Thereafter during the month of Nov. 1995 he paid another sum of Rs. 25,000/-. The payments were made through one Jayadevan who is a common acquaintance of both the complainant as well as the accused. Since the accused could not arrange the teacher's post as promised the complainant demanded the money back. Thereupon, the accused issued two cheques, one dated 4-7-1997 for a sum of Rs. 50,000/- and another cheque dated 4-8-1997 for a sum of Rs. 25,000/- drawn on the Pappinisseri Co-operative Bank Limited. When the cheques were presented for collection they were dishonoured for the reason that there was no sufficient funds in the account of the accused. Eventhough the accused received the statutory notice Crl.R.P. No. 1084 of 2003 -:3:- issued by the complainant, he did not pay the amount nor did he sent a reply to the notice. Hence, the complaint. 3. The courts below have concurrently found that Exts. P1 and P2 cheques when presented before the drawee bank within the period of their validity were dishonoured by the bank for want of sufficient funds in the account of the accused and the statutory notice issued within time was duly received by the accused who neither paid the amount nor sent a reply. The above findings are not assailed before me. 4. The learned counsel appearing for the revision petitioner/accused made the following submissions before me in support of the Revision:- Even according to the complainant a sum of Rs. 75,000/- was given to the accused for securing employment to the post of a teacher in an aided High School at Purameri in Vadakara. The said amount can only be termed as bribery for procuring employment in an aided school. Such an agreement is void ab Crl.R.P. No. 1084 of 2003 -:4:- initio since the consideration for the same is opposed public policy within the meaning of Sec. 23 of the Contract Act, 1872. If so, Exts. P1 and P2 cheques are not supported by consideration since the promise for the same is illegal. Both the complainant as well as the accused are in pari delicto. The complainant was thus not entitled to recover the amounts covered by Exts.P1 and P2 cheques both of which are tainted with the same illegality as the original agreement. It cannot be contended that Sec. 65 of the Contract Act comes to the rescue of the complainant. Sec. 65 of the Contract Act cannot have any application to a situation as the present where the agreement itself is void ab initio. Sec. 65 will be attracted only if the agreement is discovered to be void subsequently or where the contract subsequently becomes void. Even at the time of entering into the agreement it was void abinito since the consideration for demanding the money was for an illegal purpose and opposed to public policy. Hence, there is no question of the agreement subsequently being discovered as Crl.R.P. No. 1084 of 2003 -:5:- void. Since the agreement was void ab initio there was no question of any contract coming into existence so as to become void within the meaning of Sec. 65 of the Contract Act. (See Veerender Singh v. Laxmi Narain – 2007 Crl. L.J. 2262 [Delhi]). In J. Daniel v. State of Kerala and another - (2006) 132 Comp. Cases 510 a learned single judge of this Court has taken the view that a cheque issued under an agreement to compound a non- compoundable offence cannot be the subject matter of a prosecution under Sec. 138 of the N.I. Act since the transaction itself is void and therefore, the amount covered by the cheque cannot be said to be a legally enforceable debt. In Spring Fields Financial Services Ltd. v. State of A.P. - 2006 Crl. L.J. 2090 the Andhra Pradesh High Court has taken a similar view. The conviction entered and the sentence passed overlooking the above vital aspects of the matter cannot be sustained. 5. I am afraid that I cannot agree with the above submissions. This is not a case where the original agreement Crl.R.P. No. 1084 of 2003 -:6:- entered into between the complainant and the accused is sought to be enforced. For example, “A” promises to arrange employment to “B” in a public service on payment of a stipulated amount which is claimed to be intended to be utilised for paying illegal gratification to the person empowered to select candidates. After “A” performing his part of the promise by securing employment . A makes an attempt to enforce the undertaking by “B” to pay the stipulated amount upon breach of such undertaking by “B”. The attempt of “A” to enforce the agreement which is void ab initio could be successfully defended by “B”. But here the accused after taking a sum of Rs. 75,000/- was unable to secure the employment to the complainant as promised by him in an aided high school where the teachers are not Government Servants and where the service is not public service. Thereupon the complainant demanded the money back and the accused agreed to return the money. This agreement to return the money was not in any way tainted by any illegality. The accused was really Crl.R.P. No. 1084 of 2003 -:7:- agreeing to disgorge his ill - gotten gains. It is only an act of undoing an illegality by another agreement the consideration for which was not illegal or opposed to public policy. The cheques executed by the revision petitioner/accused in pursuance of the agreement to return the money received by him, were thus drawn for the discharge of a legally enforceable debt or liability. I am fortified in this conclusion by the decision of a learned single judge in Francis Mathew v. State of Kerala – 2005 (3) KLT 288. . 6. The decisions relied on by the revision petitioner are already distinguishable. In the case before the Delhi High Court (2007 Crl.L.J. 2262 ) money was paid by way of illegal gratification for the purpose of arranging a job in the Haryana Police. In Daniel's case before the learned Single Judge the amount claimed constituted the amount paid for compounding a non-compoundable offence. Similarly, in the case before the Andhra Pradesh High Court (2006 Crl.L.J. 2090) agreement to buy back shares which were issued to the complainant by way of Crl.R.P. No. 1084 of 2003 -:8:- additional security was held to be void since the shares had not been locked in by SEBI and the agreement was held to be void under Sec. 23 of the Contract Act. As against this, in Francis Mathew v. State of Kerala - 2005 (3) KLT 288 an identical question came up for consideration before a learned Single Judge who took the view that the amount agreed to be returned and covered by the cheque consequent on the failure on the part of the accused to arrange employment to the brother of the complainant was a legally enforceable debt and was not opposed to public policy unlike a bribe paid. Both the courts below have recorded the conviction against the revision petitioner after a careful evaluation of the oral and documentary evidence in the case. This Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 7. Now, what remains to be considered is the question regarding the adequacy or otherwise of the sentence imposed on the revision petitioner. The trial Court sentenced the revision Crl.R.P. No. 1084 of 2003 -:9:- petitioner to simple imprisonment for 6 months without imposing any fine or directing any compensation to the complainant. The lower appellate court also dismissed the appeal preferred by the revision petitioner confirming the conviction entered and the sentence passed presumably, taking note of the fact that a suit filed by the legal representatives of the complainant (who had expired in the meanwhile) as O.S. 17 of 2000 on the file of the Sub court, Vadakara, was decreed. It is not proved that the accused has discharged his liability under the decree passed by the civil court. Hence the accused has to compensate the complainant for the loss sustained by him. However, I am of the view that the revision petitioner/accused does not deserve penal servitude by way of incarceration for the conviction recorded against him. Accordingly, the sentence imposed on the revision petitioner is set aside and instead he is sentenced to a fine of Rs. 75,000/- (Rupees seventy five thousand only) which shall be deposited before the trial court within four months from today Crl.R.P. No. 1084 of 2003 -:10:- for disbursement to the heirs of the deceased complainant. In the event of default to deposit the fine, the revision petitioner shall undergo simple imprisonment for three months. In the result, this revision is disposed of confirming the conviction entered but modifying the sentence passed against the revision petitioner. Sd/- V. RAMKUMAR, (JUDGE) ani. Crl.R.P. No. 1084 of 2003 -:11:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 1084 of 2003 * * * * * * * * * * * * * * * * * * Dated: 16-07-2008 ORDER