A cheque issued to discharge an immoral debt does not constitute a legally enforceable debt under Section 138 of the N.I. Act, making the complaint non-maintainable.

JUDGMENT :

S.S. Mishra, J.

The petitioner has invoked the inherent jurisdiction of this Court under Section 482 Cr.P.C. seeking quashing of the criminal complaint being ICC Case No.208 of 2021 initiated by the opposite party No.2 for the alleged commission of the offence punishable under Section 138 of the N.I. Act.

2. The brief fact in the complaint is that the opposite party No.2, being the complainant has alleged that, on the basis of the assurance given by the son of the present petitioner to arrange admission of her son in a Government Medical College, she had given cash to the son of the petitioner. The son of the petitioner could not arrange the seat in the Government Medical College for the son of the complainant, as promised by him. The criminal case was initiated against the son of the petitioner for various offences, which is pending trial.

3. When the matter stood thus, the complainant demanded the money back from the son of the petitioner. To discharge the said liability, the petitioner issued two cheques from her account in favour of the complainant. On being presented the said cheques, the bankers of the petitioner dishonoured the cheque. The statutory demand notice was issued by the complainant to the petitioner. Since the demand notice was not responded, the complainant case being ICC Case No.208 of 2021 was initiated. The petitioner is seeking quashing of the said criminal complaint case on various grounds.

4. Heard Mr. D.R. Mohapatra, learned counsel petitioner, Mr. M. K. Mohanty, learned Additional Standing Counsel for the opposite party No.1 (State) and Mr. Lalit Sahu, learned counsel for the opposite party No.2.

5. Mr. Mohapatra, learned counsel for the petitioner primarily focused on the ground that the cheque issued by his client is not against the legally recoverable debt. Therefore, the criminal complaint under Section 138 of the N.I. Act is not maintainable. He has relied upon the judgment of Hon’ble Madras High Court in N.V.P Pandian v. M.M. Roy , reported in AIR 1979 MAD 42 . He has drawn the attention of this Court to Paragraphs 5 and 11 of the said judgement which reads as under:

“5. But, the question for consideration is whether the respondent would be entitled to maintain the action for the recovery of the plaint claim. It should be noted that the suit is based on the original loan and not merely on Ex. A-1, agreement. The specific case of the respondent is that in consideration of the promise made by the appellant to obtain a seat for her son in the Madras Medical College she paid Rs. 15,000/- to him. No doubt, she would say that she gave the money as loan to the appellant on the latter's assurance that he would obtain a seat for her son in the Madras Medical College. But, a reading of the entire paragraph 3 of the plaint would make it clear that it was because the appellant failed to get a seat for her son in the Madras Medical College that the respondent filed the suit for the refund of the sum of Rs. 15,000/-. A readding of Ex. A-6 notice dated 26th November 1972, sent by the respondent's counsel would make it clear that the amount was paid for the purpose of securing a seat in the Medical College and not as a loan as is now sought to be made out in the plaint. On the fact of it, it is clear that the agreement was against public policy. It is well known that selection to the Medical Colleges in the State is made on the basis of merit in accordance with the norms prescribed from time to time by the Government. The public has an interest to see that in th