of

conviction

dated

06.09.2016

passed

in

R

:: 2 ::

C.C.No.9839/2013 on the file of the Learned XX

Additional Chief Metropolitan Magistrate, Bengaluru.

This Criminal

Appeal

having been

heard &

reserved

on

28.09.2022,

coming

on

for

pronouncement this day, the Court pronounced the

following:

JUDGMENT

This appeal is filed under section 378(4) of

the Code of Criminal Procedure (‘Cr.P.C.’ for short)

by the complainant in a proceeding for the offence

punishable

under

section

138

of

Negotiable

Instruments Act (‘N.I.Act’ for short). The question

that arises in this appeal is whether the learned

Sessions Judge correctly applied section 23 of the

Indian Contract Act for allowing the appeal filed

before him under section 374(3) of Cr.P.C. for

reversing the judgment of conviction passed by

the Magistrate.

2. If the events are briefly traced, the

marriage between the complainant and Pradeep

Kumar, the son of the accused was held on

:: 3 ::

21.10.2012. Their marriage was very short lived,

they stayed together only for three days. Then on

5.11.2012, the complainant and Pradeep Kumar

entered into a Memorandum of Understanding

(Mou) as per Ex.P.6 for dissolving their marriage.

One of the stipulations of the MoU was that the

accused agreed to return the marriage expenses of

Rs.5,00,000/- to the complainant and in that

regard

he

issued

a

cheque

(Ex.P.1)

bearing

No.217264 dated 5.1.2013 for Rs.5,00,000/- to

the complainant. It was a post- dated cheque.

When

it

was

presented

to

bank

for

encashment, it was not honoured because of stop

payment instruction given by the accused as

evidenced by Ex.P.2 and this resulted in accused

being prosecuted for the offence under section 138

of N.I.Act.

3.

The

learned

Magistrate

convicted

accused assigning the reasons that the accused

:: 4 ::

admitted his signature on the cheque marked

Ex.P.1. The cheque was dishonoured because the

accused gave stop payment instructions to the

bank and it is not his case that there was

sufficient funds in the bank account. Once the

accused admitted his signature, presumption can

be raised and the onus was on the accused to

rebut the presumption. His defence that cheque

was obtained by putting threat on him cannot be

believed because it has come in evidence that

when he came to attend the panchayat, he himself

had brought the cheque. When he brought the

cheque for attending panchayat, certainly a doubt

would arise in his defence and the inference that

can be drawn is that he himself issued the cheuqe

voluntarily

consequent

to

settlement

as

per

Ex.P.6. The documents that the accused produced

as

per

Ex.D.1

to

D.7

were

all

subsequent

documents and they indicated that the accused

wanted to escape from the liability of making

:: 5 ::

payment as per this settlement. It is further held

that if the accused had spent any amount for the

marriage, he could have produced the documents.

Therefore there is no probability in the defence

and the presumption available in favour of the

complainant is not rebutted.

4. The learned Sessions Judge while reversing

the judgment of the Magistrate recorded the

reasons that there was no privity of contract

between the complainant and the accused as

Ex.P.6 was between the accused and Pradeep

Kumar, that no law provides for returning the

marriage expenses, that there is no iota of

evidence showing that Rs.5,00,000/- given by

complainant’s father to the accused was in the

form of a debt which could be recovered. The

other reason recorded by the Sessions Judge is

that the MoU between the complainant and the

accused is hit by section 23 of the Indian Contract

:: 6 ::

Act, because the complainant by agreeing to

receive Rs.5,00,000/- gave up her right to take

legal action against her husband and father-in-law.

This kind of agreement was void.

5. Assailing the findings of the learned

Sessions Judge, Sri. N. Vinayak Kamath, learned

counsel for the appellant argued that the Sessions

Judge has wrongly applied section 23 of the Indian

Contract Act fo