An agreement to commit an offence under the Penal Code is void, and the concept of cheating does not apply when the act itself was an offence.

1. Heard learned counsel for the petitioners, the State of Bihar and for the Opposite Party No. 2.

2. The petitioners are aggrieved by the order of cognizance dated 3.2.2004 passed by the Judicial Magistrate, 1st Class at Jehanabad and their entire prosecution in Complaint Case No. 272 of 2002 under Section 406 of the Indian Penal Code (hereinafter referred to as the I.P.C.).

3. Opposite Party No. 2/complainant, in the complaint case stated that his son Kaushlendra Kumar @ Bablu was married to the sister of the petitioners in 1993. His son was unemployed. Petitioner No. 1 was employed in the Police Force at Jamshedpur. Petitioner No. 2 was his elder brother also employed in the Police Force. The complainant developed confidence in the petitioners due to the matrimonial relationship. Petitioner No. 1 offered to obtain employment for Kaushlendra Kumar in the Police Force if the complainant was willing to incur expenses. Since his son was unemployed, the complainant agreed to incur expenses. Petitioner No. 1 assured the complainant that recruitment was soon to be made in the Police Force at Jamshedpur and that he would influence the appointing officer by payment of money. This would cost approximately 65,000/- rupees. The complainant arranged the amount. The petitioners came to his house on 30.4.1999. They brought with them a copy of an affidavit for appointment in Police Force at Jamshedpur and promised that the money would be returned if appointment was not secured. The complainant believed them when the petitioners further assured that they had talked to the officials and an application had been submitted in the office of the Superintendent of Police at Jamshedpur, the acknowledgement of which was available with the petitioners. They also obtained the necessary residence certificate by fraud in the name of Kaushlendra Kumar that he was a resident of Jamshedpur from the Sub-Divisional Officer. When employment was not forthcoming after reasonable time and the petitioners were dilly dallying, the complainant asked for return of his money. Unfortunately, at this time the daughter-in-law alongwith her two children, wife of Kaushlendra Kumar, died in an accident due to bursting of the gas cylinder pipe. Petitioner No. 1 filed a false and frivolous case to save himself from making payment to the complainant registered as Ghoshi (Hulashganj) P.S. Case No. 278 of 2001 in which the complainant was presently in custody. The delay in filing of the complaint was on account of the death of the daughter-in-law and false implication of the complainant in the police case.

4. Learned counsel for the petitioners submits that Ghoshi (Hulashganj) P.S. Case No. 278 of 2001 was registered under Sections 304B, 201, 34 of the I.P.C. on 24.11.2001 against Kaushlendra Kumar, the complainant and his wife. The allegations were found true, charge-sheet was submitted and the complainant and other accused are facing trial. The present complaint filed thereafter on 7.5.2002 was false, frivolous and a measure of vexatious vendetta to divert the attention of the petitioners and prevent them from effectively pursuing the police case under Section 304B of the I.P.C. The prosecution was therefore mala fide. It was next submitted that on the face of the allegations no offence was made out under Section 405 I.P.C. for punishment under Section 406 I.P.C. There had been no entrustment of money at all even if the allegations were accepted on the face of it. Reliance in support of the propositions was placed on A.I.R. 1953 SC 478, 1992 Criminal Law Journal 526 and 2004(1) PLJR 422. The last submission was that the agreement to procure appointment in the Police Force by payment of bribe money was opposed to public policy and was a void and illegal contract under Section 23 of the Indian Contract Act. No cause of action could therefore be founded on a cause of action whose origin lay in illegality.

5. Opposing the prayer learned counsel for the Opposite Party No.