IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 1ST JUNE 2009 / 11TH JYAISHTA 1931 CRL.REV.PET.NO. 256 OF 2001() ------------------------------------------- CRMP.84/2000 OF , JUDICIAL FIRST CLASS MAGISTRATE COURT-II, MANNTHAVADY .................... REVN. PETITIONER(S) - PETITIONER: ----------------------------------------------- V. VARGHESE, S/O. VARKI, PULLOORKUDY HOUSE, P.O. KATTIKKULAKM, MANANTHAVADY TALUK. BY ADV. SRI.V.P.REGHURAJ RESPONDENT(S) - RESPONDENT & STATE: ------------------------------------------------------ 1. P.S. VIJAYAKRISHNAN, S/O.LATE RAMAN NAIR, PUTHAN PURAKKAL KRISHNANJALI, THIRUVATHUKKAL P.O., KOTTAYAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO. 256 of 2001 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of June, 2009 O R D E R -------------- Though respondent No.1 is served with notice in this revision he remains absent. 2. Complainant in a prosecution under Section 138 of the Negotiable Instruments Act (for short, “the Act”) has come up in revision challenging the dismissal of the complaint as not maintainable. 3. Case of the petitioner is that respondent No.1 offered to procure a job for his daughter in a school and as part of that agreement petitioner entrusted Rs.6,00,000/- with respondent No.1 towards fund for construction of the building for the school on the understanding that the amount will be returned without interest after ten years. But respondent No.1 failed to get the job. Nor did he return the money. Later he issued a cheque for the discharge of the liability which was returned as account was closed. Statutory notice was issued to respondent No.1 intimating the dishonour and demanding payment but that notice was returned unclaimed. Petitioner therefore alleged that respondent No.1 has committed the offence punishable under Sec.138 of the Act. Learned magistrate recorded the sworn CRL. R.P. No.256 of 2001 -: 2 :- statement of the petitioner but was of the view that the sum of Rs.6,00,000/- paid to respondent No.1 for procuring a job is against public policy and hence hit by Section 23 of the Contract Act. Accordingly complaint was dismissed. Learned counsel for petitioner contends that dismissal is not legal or proper. 4. I have gone through the complaint and sworn statement of the petitioner. Specific case of the petitioner is that the amount was paid towards the fund for the construction of building for the school which was to be repaid after ten years without interest. It is not his case that it was as an illegal gratification for procuring the job that the amount was paid to respondent No.1. From the averment in the complaint and the version of petitioner, at this stage it is not possible to hold that consideration for the agreement is illegal or opposed to public policy and hit by Sec.23 of the Contract Act. Dismissal of the complaint on that ground is not legal or proper. However, I make it clear that it will be a matter for evidence whether the alleged payment towards building fund was intended as an illegal gratification for getting the job and therefore hit by Sec.23 of the Contract Act. Hence the order under challenge cannot be sustained. Resultantly, revision is allowed. The impugned order is set aside CRL. R.P. No.256 of 2001 -: 3 :- and the case is remitted to the Court of Judicial First Class Magistrate- II, Mananthavady. Learned magistrate is directed to consider the matter afresh and proceed as per law if otherwise the offence under Sec.138 of the Act is made out. Petitioner shall appear in the trial court on 30.6.2009. Criminal Miscellaneous Petition No.1066 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. vsv THOMAS P.JOSEPH, J. =================== CRL. R.P. NO.256 OF 2001 =================== O R D E R 1ST JUNE, 2009