IMPORTANT POINT
A cheque issued under an agreement that is illegal due to the intent to evade statutory obligations is not for a legally recoverable debt, and thus, the holder cannot enforce it under the Negotiable Instruments Act.

JUDGMENT/ORDER

1. Rule. Rule made returnable forthwith. Heard finally with consent of learned counsel for the parties.

2. The challenge in this writ petition, under Article 227 of the Constitution of India, is to the order dtd. 23/12/2019 passed by the Court of Additional Sessions Judge, Niphad allowing Criminal Revision Application No. 83 of 2019. Vide the judgment and order impugned herein, the order of "Issue of Process" passed by the Court of Judicial Magistrate First Class, Chandwad in Summary Criminal Case No. 493 of 2019, came to be set aside. It was a case instituted otherwise on police report (complaint) for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 ('N.I. Act'). As such, the petitioner before this Court is the original complainant, while the Respondent No.1 ('respondent') is an accused therein.

3. It is the case of the petitioner/complainant that he and his relations owned an agricultural land in Gut No.1055 admeasuring 76 R. situated at Chandwad. The respondent/accused and his two brothers purchased the said land from the petitioner/complainant and his brothers on 16/3/2018 for consideration of Rs.62.00 lakhs. As per the ready reckoner, the price of the land was Rs.25.50 lakhs. The respondent and his brothers, only with a view to save expenditure relating to stamp duty, registration fee, if any, etc., got the sale-deed executed mentioning the amount of consideration as Rs.25.50 lakhs. A sum of Rs.24.50 lakhs was paid in cash. As such, a sum of Rs.50.00 lakhs out of consideration of Rs.62.00 lakhs was paid to the petitioner/complainant and his relations. A sum of Rs.12.00 lakhs was outstanding. It was due from the respondent/accused. He therefore, executed a document titled 'Bharna Pavati' in favour of the petitioner/complainant. The respondent/accused also issued a cheque dtd. 28/6/2019 of Rs.12.00lakhs towards payment of balance consideration amount.

4. The petitioner/complainant presented the cheque for encashment on 2/7/2019, which returned unpaid on 3/7/2019 for the reason 'funds insufficient'. The petitioner/complainant, therefore, issued a statutory demand notice on 18/7/2019. The respondent/accused replied the notice with false contention. The petitioner/complainant, therefore, lodged the complaint wherein process came to be issued.

5. The respondent/accused challenged the order of issuance of process by preferring the revision application. Learned Additional Sessions Judge, Niphad allowed the revision application with the following reasons :-

<WXY>"13. ... In the present case also, the parties have agreed for payment of the money, which was concealed from the Govt., to avoid stamp duty. Such an agreement is against the Govt. policy and that cannot be said to be a legal agreement or legal liability.

14. Sec. 10 of the Indian Contract Act, 1872, provides that, all agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. In the present case also, there is free consent of the parties to contract but, it is not for lawful consideration with lawful object. The object hidden behind the contract is to avoid the payment of stamp duty to the Govt. and, therefore, it was also registered with the Notary and not in the Sub Registrar's office. So, even though the agreement was registered before the Notary, but it is not valid agreement and, therefore, notarization of the document will not make the contract legal and valid. The promise made by such contract is also not legal. The consideration agreed between the parties is also not lawful consideration and the object is, apparently, to avoid the stamp duty of the Govt. In case of breach of the promise the contract cannot be said to be a legal consideration and the liability cannot be said to be legally recoverable liability.

18. In the present case, the consideration shown in the agreement between the par