TMI Blog2018 (7) TMI 2145X X X X Extracts X X X X X X X X Extracts X X X X ..... not constitute any offence or under any penal law for the time being in force, the continuation of such prosecution amounts to abuse of process of law. Therefore, the court has to examine without reference to the defence of the accused on the basis of the complaint itself whether there existed ingredients of Section 138 of the Negotiable Instruments Act. It is clear from the complaint averments that it is the case of the complainant that, the complainant has a son by name B. Sharath, the accused and complainant were known to each other since long. The complainant met the accused and in fact the accused had assured to provide a job to his son in HAL factory. In this context, the accused had requested the complainant to pay an amount of ₹ 10 lakhs and he demanded the same for the purpose of providing a job to the son of the complainant. In this context, it is stated that, on various occasions, the complainant has paid some amounts to him. As the accused could not get the job to the son of the complainant, the complainant approached the accused. Then the accused again demanded for further amount for making payment to the Officers. As per the demand, the complainant paid amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contents of the complaint. It is more than several times made clear that when ever a complaint is filed, the learned Magistrate has to look into the complaint, he should not mechanically take cognizance or refer the matter to the police for investigation. The learned Magistrate has to look into the complaint averments for the purpose of ascertaining whether the court has got jurisdiction to try that matter. Secondly, the contents of the complaint even meaningfully understood allegations made therein constitute any offence. Only for those offences, where the allegations constitute offence the Magistrate is entitled to take cognizance and proceed with the matter. Petition allowed. - Criminal Petition No. 1387 Of 2011 - - - Dated:- 6-7-2018 - Mr. K. N. Phaneendra, J. Sri. Vinay T. R. Adv. For Sri. C. V. Sudhindra, adv. For The Petitioner. Sri. Prashanth U. T. Adv. For The Respondent. JUDGEMENT 1. Heard the learned counsel for the petitioner as well as the learned counsel for the respondent. Perused the records. 2. The petitioner has sought for quashing of the entire proceedings in CC No.22036/2009 registered against her for the offence punishable under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both. The rest of the provision may not be necessary so far as this case is concerned. 7. In this context, Section 139 of the Negotiable Instruments Act also comes into play. Section 139 of the Act says that 139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability.] Therefore, here, the debt or other liability has to be understood as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made available to complainant's nephew, he requested accused to return said amount Dishonour of cheque issued by petitioner towards said amount Agreement between petitioner and complainant for securing job is void, consideration therein being unlawful Parties being in pari delicto, therefore, said sum of ₹ 80,000/- cannot be recovered Thus, there did not exist any legally enforceable debt or liability for discharge of which it could be said that cheque in question was issued Consequently, S. 138 would not be attracted. 11. In another ruling of the Hon'ble Apex Court between Kuju Collieries Ltd., Vs. Jharkhand Mines Ltd., (1974) AIR SC 1892 and others wherein the Hon'ble Apex Court referring to Section 65 of the Indian Contract Act, 1872, held that - Agreement void ab initio Mining lease contrary to mineral regulations and void Parties in pari delicto Section 65 does not apply Nor does Section 70 or 72. 12. Looking to the above said legal aspect, the court has to consider whether in this particular case, on facts, any legally recoverable debt was in existence or not. 13. In this context, the learned counsel for the respondent also equally refuting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence or non existence of a legally recoverable debt is a matter of fact that has to be established during the course of the trial. Therefore, he tried to convince this court that petition is not maintainable and the same is liable to be dismissed. 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 the Negotiable Instruments Act is constituted or not. It is a very well recognized principle of criminal jurispru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that, he has paid money for the purpose of securing job for his son, even without examining whether the accused has got any authority to provide job to his son or not and what is the procedure that is required to be followed by the HAL factory for the purpose of selecting any candidate for the purpose of providing any job. Therefore, without examining anything, the complainant himself has entered into a void contract with the accused and paid money as against the public policy for illegal purpose. 21. As could be seen from the rulings cited by the learned counsel for the petitioner and the provision of Section 23 of the Indian Contract Act, it is crystal clear that if on the basis of a void contract and particularly if the consideration is illegal, and consideration is for immoral or illegal purposes or which is against the public policy, then the whole transaction becomes void, the consideration paid in such contract becomes an illegal consideration and when it is said it is legal or unlawful consideration, it can not be at any stretch of imagination called as a legally recoverable debt. 22. Now, coming to the submission made by the learned counsel for the respondent with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avour of the complainant. If the complainant himself does not plead the existence of legally recoverable debt, then there is no question of raising any initial presumption in favour of the complainant. Therefore, even considering the provisions of Section 139 of the Negotiable Instruments Act, there is no question of accused rebutting the presumption unless the presumption is raised in favour of the complainant. If the court for any reason comes to the conclusion that the ingredients of Section 138 of the Negotiable Instruments Act, are not made out, the court cannot take cognizance of such matter, and for the purpose of calling the accused to appear before the court and contest the proceedings. 26. Under the above said facts and circumstances of the case and also the decisions relied upon by the parties, in my opinion, it is a fit case based on the factual aspects and legal aspects, to quash the complaint. 27. The learned Magistrate in fact at the time of taking cognizance of the private complaint has to examine meticulously the contents of the complaint. It is more than several times made clear that when ever a complaint is filed, the learned Magistrate has to look into the ..... 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