The petitioner is before this Court calling in question

proceedings in C.C.No.1414/2019 pending before the Civil

Judge and JMFC, Siaguppa for offences punishable under

Section 138 of the Negotiable Instruments Act, 1881.

2. Heard Sri.Ravi Hegde, learned counsel for the

petitioner and Sri.K.S.PATIL, learned counsel for the

respondent.

3. Brief facts leading to the filing of the present petition

as borne out from the pleadings are as follows:

Petitioner and respondent-complainant claim to be

acquaintances. The respondent registers a complaint under

Section 200 of the Cr.P.C. alleging offences punishable under

Section 138 of the N.I.Act. The reason that triggered the

complaint is that the petitioner had approached the

respondent and has assured the respondent-complainant

that he would get him a job of Sub-Inspector of Excise by

using his influence and claims to have demanded money for

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the same. The complaint further narrates that an amount of

Rs.5 lakhs was paid totally, Rs.2 lakhs each on two

occasions and a lakh later. In furtherance of the said

payment, the petitioner appears to have issued a cheque for

the said amount which when presented was dishonoured for

want of sufficient funds. This resulted in a legal notice being

caused upon the petitioner and later proceedings initiated for

offences punishable under the Act. Thus, the proceedings

initiated was for an amount that was allegedly paid by the

respondent on the alleged assurance of the petitioner getting

him a job. The learned Magistrate takes cognizance of the

offence and issues process to the petitioner. It is at that

stage, the petitioner knocks the doors of this Court in the

subject petition.

4. The learned counsel appearing for the petitioner

would submit that for invocation of Section 138 of the

N.I.Act, it should be a legally enforceable debt. The breach of

promise that too by a person who was never in the capacity

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of getting a job can never mean it was a legally enforceable

debt.

5. On the other hand, the learned counsel appearing for

the respondent would contend that the petitioner lured the

respondent that he would get him a job of Sub-Inspector of

Excise and cheated him with the money as he failed to fulfil

the promise and in assurance of the receipt of the amount

the petitioner had issued the cheque and therefore, he is

liable to be prosecuted under the provisions of the Act.

6. I have given my anxious consideration to the

submissions made by the learned counsel for the parties and

perused the material on record.

7. The afore-narrated facts are not in dispute. Sections

138 and 139 of the N.I.Act recognizes legally recoverable debt

and imposes such presumption in favour of the holder of the

cheque. Illegal considerations or a contract which is opposed

to public policy entered into between the parties, even if a

cheque is issued in furtherance of such contract, would not

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become

a

legally

recoverable

debt

for

initiation

of

proceedings. The said principle is applicable to the case at

hand.

8. The Co-ordinate bench of this Court in the case of

R.PARIMALA BAI vs. BHASKAR NARASIMHAIAH¹, has held

as follows:

“18. On careful perusal of the above said

decisions, it is crystal clear that in order to attract

Section 138 of the Negotiable Instruments Act, the

ingredients of Section 138 have to be established

primarily by the complainant by pleading in the

complaint with regard to the existence of any legally

recoverable debt or liability on the part of the

accused. Even a semblance of doubt is raised with

regard to the existence or non existence of legally

recoverable debt, then also it should be established

during the course of trial by means of pleading the

facts and leading evidence. It is the defence taken

up by the accused that there was no legally

enforceable debt, and further that, it is not only the

defence, but also the court has to examine whether

on complete reading of the complaint itself whether

any offence u/s.138 of th