An agreement that involves inducing a public officer for money or valuable consideration, and is contrary to public policy, is void from the beginning and cannot be enforced.

JUDGMENT

Sandeep K. Shinde, J. - Rule.

2 Rule made returnable forthwith. With consent of the learned counsel for the parties, matter is taken up for final hearing forthwith.

3 This application, under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short) seeks to quash the Criminal Case, S.C.C. No. S/18820 of 2019 instituted by the respondent no.1 (hereinafter called Complainant for short) under Section 138 of the Negotiable Instruments Act, 1881 (NIA for short). and summons issued therein, by the 6th Joint Chief Judicial Magistrate, First Class, Thane.

4 Back-ground facts:

The complainant, is a Chartered Accountant. He was, financial creditor, of M/s. Aryavart Chemicals Pvt. Ltd. (Corporate debtor) within the meaning of Insolvency and Bankruptcy Code, 2016. The National Company Law Tribunal (NCLT for short) in a petition filed by M/s. Panama Petrochem Limited (Operational Creditor) appointed Mr. Sandip Mehta as the Resolution Applicant (RA) and appointed three members Committee of Creditors (COC). The complainant was a member of the COC. That, out of three members, resolution plan submitted by the, RA, was approved by two members except the complainant. It appears, complainant was not satisfied with the resolution plan, because he being financial creditor, he would receive just Rs.98,000/- as per the resolution plan, as against Rs.13 Lakhs, then due. It is complainants case that applicant -accused being, Operational Creditor approached and persuaded him for not filing an appeal against the order of the NCLT before the National Company Law Appellate Tribunal (NCLAT for short) and offered him to pay Rs.2,02,000/-. It appears, the complainant had accepted the offer and did not file appeal. In consideration of this omission, accused drew a cheque in favour of the complainant for Rs.2,02,000/- dated 30th May, 2019 drawn on Bank of Baroda, Mahavir Nagar Branch, Kandiwali (West).

5 Cheque in question was returned "Unpaid"; whereafter, complaint, in question was filed on 15th October, 2009.

6 In paragraphs 7 and 8 of the complaint, complainant pleaded that cheque in question drawn by the accused was towards legally enforceable liability. Paragraph 8 of the complaint reads as under;

"8 The Complainant further states that, along with the cheque the Accused gave in writing on his Companys Letter-Head an acknowledgment of the said cheque duly signed by the Accused. Hereto annexed and marked as "Exhibit- B" is the copy of the said written Acknowledgment by Accused dated 01/03/2019."

7 The learned Judicial Magistrate, First Class, Thane issued the summons on 3rd March, 2021 to the applicant, which is assailed in this application.

8 Mr. Panikar, the learned counsel for the applicant, submitted that, cheque amount in question would not constitute legally enforceable liability or debt within the meaning of Explanation to Section 138 of NIA. The learned counsel submitted, that in this case, Object of the agreement between the complainant and the accused was not lawful in-as-much as cheque was drawn in complainants favour, to dissuade him from, preferring an appeal against the order of the NCLT. Therefore, the Object of the agreement and Consideration payable thereunder, was unlawful. Thus, argued, that agreement between the parties, being immoral and opposed to public policy, within the meaning of Section 23 of the Indian Contracts Act, 1872, agreement was void. Therefore, the learned counsel would urge that the complaint and Issue Process, order passed thereunder be quashed and set aside.

9 The learned counsel for the complainant, on the other hand, would support the complaint and the order Issue Process.

10 Under Section 138 of the NIA, expression," of any debt or other liability for the discharge, in whole or in part of any debt or other liability", means, debt or liability arising, from an agreement of which object is lawful, within the meaning of Section 23 of the Indian Contracts Act, 1872. Section 23 reads as under:

"23. What consi