IMPORTANT POINT
Court will refuse to enforce an illegal agreement at instance of a person who is itself party to an illegality or fraud.

JUDGMENT (ORAL)

Heard.

2. Admit. The application is heard finally with the consent of the learned Advocates for the parties at the admission stage.

3. In this criminal revision application, challenge is to the judgment and order dated 6.02.2017 passed by the learned Additional Sessions Judge, Chandrapur, whereby the learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the N.I. Act” for short). The learned Chief Judicial Magistrate, Chandrapur, on conviction, had sentenced the applicant/accused to undergo simple imprisonment for six months and to pay compensation of Rs.1,45,000/- and in default of payment of compensation to further suffer simple imprisonment for six months.

4. The facts are as follows:

In this judgment, the parties would be referred by their nomenclature in the complaint. The applicant is the accused and the non-applicant No.1 is the complainant. The complainant and accused are family friends. It is the case of the complainant that the accused had promised a job to his son in railway department. The complainant, as agreed between them, paid Rs.1,20,000/- to the accused. The accused did not provide the job to the son of the complainant. He did not fulfill his promise. The complainant, therefore, demanded his money back from the accused. The accused initially avoided to meet the demand. However, after great persuasion, he issued five cheques of Rs.18,000/- each, drawn on his account maintained with Central Bank of India, Paldi Branch, Ahmedabad. The complainant presented the said cheques for encashment through his bank. The bank of the complainant informed in writing to the complainant that the cheques were dishonoured on account of insufficient funds in the account of the accused to honour the cheques. The complainant, therefore, issued a notice to the accused and made the demand. The accused did not pay the amount. The complainant, therefore, filed a complaint. The learned Magistrate took congnizance of the offence and issued the process against the accused. The complainant examined himself as a sole witness. The accused has also examined himself. He examined one independent witness to substantiate his defence. The learned Magistrate, on appreciation of the evidence, held the accused guilty and sentenced him as above. The appeal filed by the accused against his conviction and sentence came to be dismissed. The accused is, therefore, before this Court.

5. I have heard Mr. A.R. Patil, learned advocate for the accused and Ms. Sonali Saware-Gadhwe, learned advocate (Amicus Curiae) for the complainant. Perused the record and proceedings.

6. Learned Advocate for the accused submitted that the complaint filed under Section 138 of the N.I. Act was not maintainable. Learned Advocate submitted that the facts stated in the complaint would show that the contract between him and the complainant was void ab initio. The said amount, according to the complainant, was paid to the accused as per their agreement to secure a job to his son in railway department. Learned Advocate submitted that this admitted fact stated in the complaint by the complainant has not been properly appreciated by the Courts below. Learned Advocate submitted that the agreement between the parties was not enforceable by law. Learned Advocate submitted that the agreement which is not enforceable by law is void agreement. Learned Advocate submitted that the consideration and object of the agreement was unlawful. Learned Advocate heavily relied upon Section 23 of the Indian Contract Act, 1872 (hereinafter referred to as ‘the Contract Act’). Learned Advocate further submitted that the illegality of the agreement was known to the parties when they entered into the agreement. Learned Advocate further submitted that in this case Section 65 of the Contract Act would not be applicable