2005 ALL MR (Cri) JOURNAL 251
(KERALA HIGH COURT)
M. SASIDHARAN NAMBIAR, J.
Francis Mathew Vs. State Of Kerala
Crl.R.P.No.2009 of 2004
17th February, 2005
Petitioner Counsel: Mr. G. KRISHNA KUMAR
Respondent Counsel: Mr. K. J. GEORGE
Negotiable Instruments Act (1881) S.138 - Dishonour of cheque - Accused promising to arrange job for the brother of complainant - On failure to arrange job respondent demanded back the amount - Accused issued cheque for Rs.80,000/- which bounced - Claim cannot be rejected on ground that it is opposed to public policy - Accused cannot be permitted to be benefited by retaining the amount which he received unlawfully and illegally. (Para 4)
Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly, AIR 1986 SC 1571 [Para PARA3]
A.R.P.L. Palaniappa Chettiar Vs. P.L.A.R. Arunasalam Chettiar, 1962 AC 294 [Para PARA3]
Associated Cement Companies Ltd. Vs. State of Rajasthan, AIR 1981 Raj. 133 [Para PARA3]
-Accused in C.C.No.838/99 on the file of Judicial First Class Magistrate-1, Aluva is the revision petitioner. Second respondent was the complainant. Petitioner was convicted and sentenced to simple imprisonment for six months and compensation of Rs.80,000/- and in default simple imprisonment for six months for the offence under S.138 of N.I. Act. Petitioner challenged conviction and sentence before Additional Sessions Judge, North Paravur in Crl.A.No.590/03. Learned Additional Sessions Judge after analysing and re-appraising the evidence confirmed conviction and sentence and dismissed appeal. Petitioner has preferred this revision from jail. Advocate Krishna Kumar was appointed as State Brief.
2. Case of second respondent was that petitioner promising to secure a job for Rasheed, brother of PW.1, in Premier Tyres Ltd., Kalamassery obtained Rs.80,000/- and when he failed to arrange job second respondent demanded back the amount and then petitioner issued Ext.P2 cheque towards repayment of the amount and when Ext.P2 was presented for encashment, under Exts.P3 and P4 it was dishonoured for want of sufficient funds. Under Ext.P5 second respondent demanded the amount covered by cheque, which was not accepted by petitioner and was returned back under Ext.P6. Petitioner did not pay the amount and thereby committed offence under S.138 of N.I.Act. Petitioner pleaded not guilty. PW.1 was examined and Exts.P1 to P6 were marked. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found that Ext.P2 cheque was issued towards discharge of existing liability and it was dishonoured for want of sufficient funds and second respondent had complied with all statutory formalities provided under the Act and petitioner committed offence under S.138 of N.I.Act. He was accordingly convicted and sentenced. Learned Sessions Judge analysed and reappraised the evidence and confirmed the conviction and sentence.
3. Advocate Mr. Krishna Kumar vehemently argued that Ext.P2 cheque was not issued towards discharge of any legally enforceable debt and according to second respondent it was issued towards payment of amount obtained by petitioner for arranging a job to brother of second respondent which is opposed to public policy and therefore it is not a legally enforceable debt and on that ground petitioner cannot be convicted under S.138 of N.I.Act. Learned counsel relied on the decision reported in Central Inland Water Transport Corporation Ltd. & Anr. Vs. Brojo Nath Ganguly & Anr., AIR 1986 SC 1571, A.R.P.L. Palaniappa Chettiar Vs. P.L.A.R. Arunasalam Chettiar, 1962 AC 294 and Associated Cement Companies Ltd. Vs. State of Rajasthan & Anr., AIR 1981 Raj. 133 and vehemently argued that if second respondent cannot be permitted to realise the amount which was paid by first respondent for arranging a job as it is opposed to public policy and if permitted it would be permitting acceptance of bribe. Contending that it is to be found that Ext.P2 was not issued towards discharge of any legally enforceable debt learned counsel would submit that the conviction is unsustainable.
4. First of all, petitioner has no case that he had received any amount as bribe from second respondent. Petitioner is admittedly not an employee of Premier Tyres. What was alleged by second respondent was that petitioner promised that he could arrange employment for the brother of first respondent and towards that he had received Rs.80,000/-. That amount was paid by the first respondent. On the failure of petitioner to arrange job, second respondent demanded back the amount. Petitioner then issued Ext-P1 cheque. Question is whether such payment could be termed unlawful and opposed to public policy as canvassed by learned counsel appearing for revision petitioner. On going through the decision relied on by learned counsel appearing for petitioner, if the amount claimed was for realisation of the amount agreed to be paid as bribe, it could have been said that the contract is unenforceable as opposed to public policy. Case is different herein. If the case of second respondent is accepted, petitioner received certain amount, which he is not entitled to receive. Second respondent was persuaded to part with Rs.80,000/- paid to petitioner on the promise that petitioner would arrange employment to his brother. Petitioner did not arrange the employment. Second respondent claimed it back. It was in such circumstances, petitioner issued Ext.P2 cheque. Question is whether it could be made unenforceable as opposed to public policy. On the facts and circumstances of the case, I cannot agree with the argument of learned counsel appearing for petitioner that Ext.P2 cheque is to be made unenforceable as opposed to public policy. Petitioner is not entitled to retain the amount, which he received unlawfully and illegally. Petitioner cannot be permitted to be benefited by retaining the amount which he is not entitled to. Therefore, the claim under Ext.P2 Cheque cannot be rejected on the ground that it is opposed to public policy as canvassed by learned counsel appearing for petitioner.
5. Ext.P1 cheque was admittedly issued in the account maintained by petitioner in his bank. What was contended before the Courts below is clear from the statement of petitioner at the time of questioning him under S.313 of Cr.P.C. His case was that he borrowed Rs.10,000/- and issued blank cheque which was converted into Ext.P2 cheque. Petitioner was not examined. Apart from the statement that blank cheque was issued, there is no evidence to show that any blank cheque was issued. Learned counsel appearing for petitioner vehemently argued that in cross-examination PW.1 admitted that document was obtained by first respondent at the time of giving the amount and Ext.P2 cheque is seen filled up using typewriter and therefore it is to be taken that blank cheque given earlier was used for creating Ext.P2. Evidence of PW.1 does not show that any blank cheque was obtained at any time. What is stated by PW.1 in cross-examination was that petitioner had given a document, namely a cheque at the time of receiving the amount. But PW.1 did not admit that it was a blank cheque. Instead it was categorically stated by PW.1 that when petitioner could not arrange the employment, petitioner was asked to repay the amount and petitioner got a cheque typed and gave it to second respondent and that cheque is dated 30.8.1989. In view of that evidence of PW.1, I cannot agree with the argument of learned counsel appearing for petitioner that there is an admission about receipt of a blank cheque by first respondent. On the other hand evidence would establish that Ext.P2 cheque was issued by petitioner. Definitely presumption under S.139 of N.I. Act is available to second respondent. Both the Courts have rightly appreciated evidence and found that Ext.P2 cheque issued towards repayment of the amount due to second respondent. Evidence would also establish that Ext.P2 cheque was dishonoured for want of sufficient funds. Evidence also establishes that second respondent has complied statutory formalities provided under the Act. Conviction of petitioner for offence under S.138 of N.I. Act is perfectly correct and warrants no interference.
6. Then the only question is with regard to sentence. Petitioner was sentenced to simple imprisonment for six months and also compensation of Rs.80,000/- and in default simple imprisonment for six months. Considering the nature of the offence, interest of justice will be met if sentence is modified.
7. Revision is partly allowed. Maintaining conviction for the offence under S.138 of N.I. Act and in supersession of sentence awarded by learned Magistrate and confirmed by learned Sessions Judge, petitioner is sentenced to imprisonment for 15 days and compensation of Rs.80,000/- and in default simple imprisonment for one month. It is made clear that if petitioner had undergone the period of sentence, he is to be released, if not wanted in any other case.