JUDGMENT :

This appeal is filed under section 378(4) of the Code of Criminal Procedure (‘Cr.P.C.’ for short) by the complainant in a proceeding for the offence punishable under section 138 of Negotiable Instruments Act (‘N.I. Act’ for short). The question that arises in this appeal is whether the learned Sessions Judge correctly applied section 23 of the Indian Contract Act for allowing the appeal filed before him under section 374(3) of Cr.P.C. for reversing the judgment of conviction passed by the Magistrate.

2. If the events are briefly traced, the marriage between the complainant and Pradeep Kumar, the son of the accused was held on 21.10.2012. Their marriage was very short lived, they stayed together only for three days. Then on 5.11.2012, the complainant and Pradeep Kumar entered into a Memorandum of Understanding (Mou) as per Ex.P.6 for dissolving their marriage. One of the stipulations of the MoU was that the accused agreed to return the marriage expenses of Rs.5,00,000/- to the complainant and in that regard he issued a cheque (Ex.P.1) bearing No.217264 dated 5.1.2013 for Rs.5,00,000/- to the complainant. It was a post-dated cheque. When it was presented to the bank for encashment, it was not honoured because of stop payment instruction given by the accused as evidenced by Ex.P.2 and this resulted in accused being prosecuted for the offence under section 138 of N.I. Act.

3. The learned Magistrate convicted the accused assigning the reasons that the accused admitted his signature on the cheque marked Ex.P.1. The cheque was dishonoured because the accused gave stop payment instructions to the bank and it is not his case that there was sufficient funds in the bank account. Once the accused admitted his signature, presumption can be raised and the onus was on the accused to rebut the presumption. His defence that cheque was obtained by putting threat on him cannot be believed because it has come in evidence that when he came to attend the panchayat, he himself had brought the cheque. When he brought the cheque for attending panchayat, certainly a doubt would arise in his defence and the inference that can be drawn is that he himself issued the cheuqe voluntarily consequent to settlement as per Ex.P.6. The documents that the accused produced as per Ex.D.1 to D.7 were all subsequent documents and they indicated that the accused wanted to escape from the liability of making payment as per this settlement. It is further held that if the accused had spent any amount for the marriage, he could have produced the documents. Therefore there is no probability in the defence and the presumption available in favour of the complainant is not rebutted.

4. The learned Sessions Judge while reversing the judgment of the Magistrate recorded the reasons that there was no privity of contract between the complainant and the accused as Ex.P.6 was between the accused and Pradeep Kumar, that no law provides for returning the marriage expenses, that there is no iota of evidence showing that Rs.5,00,000/- given by complainant’s father to the accused was in the form of a debt which could be recovered. The other reason recorded by the Sessions Judge is that the MoU between the complainant and the accused is hit by section 23 of the Indian Contract Act, because the complainant by agreeing to receive Rs.5,00,000/- gave up her right to take legal action against her husband and father-in-law. This kind of agreement was void.

5. Assailing the findings of the learned Sessions Judge, Sri. N. Vinayak Kamath, learned counsel for the appellant argued that the Sessions Judge has wrongly applied section 23 of the Indian Contract Act for reversing the judgment of the learned Magistrate. The accused admits to have issued the cheque. It is not in dispute that the cheque was dishonoured. Legal notice was also issued to the accused demanding payment of the cheque amount. There was no compliance. In this view, presumption as available under section 139 of N.I. Act was rig