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TMI Blog2018 (7) TMI 2145X X X X Extracts X X X X X X X X Extracts X X X X ..... s not attracted. 4. In this regard, the learned counsel for the petitioner has drawn my attention to the entire paragraphs in the complaint averments to demonstrate that there was no legally recoverable debt even according to the complaint averments. When such being the case, there cannot be any presumption under Negotiable Instruments Act particularly u/s.139 of the Act. When presumption u/s.139 of Negotiable Instruments Act cannot be raised in favour of the complainant and if it is not shown exfacie on the face of the complaint averments, that there exists any legally recoverable debt, then ingredients of Section 138 of the Negotiable Instruments Act are not attracted. Therefore, on that ground, the complaint itself is liable to be quashed. 5. Per contra, learned counsel for the respondent submitted that, on meaningful reading and understanding of the complaint averments, there creates some doubt whether the accused has only acted as a commission agent for the purpose of getting job for the son of the complainant and in such an eventuality, presumption u/s.139 of the Act has to be raised and it is a matter of fact whether there exists any legally recoverable debt or not. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the person or property of another; or the Court regards it as immoral, or opposed to public policy. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void." The illustration given at Item (f) in fact, is almost similar to the factual aspects of this case, which says that "A promises to obtain for B an employment in the public service and B promises to pay 1,000/- rupees to A. The agreement is void, as the consideration for it is unlawful." 9. The learned counsel for the petitioner in this regard also relied upon the decision reported in AIR 1979 Madras 42, between N.V.P. Pandian, and M.M. Roy, wherein, the Madras High Court has held thus "Section 23 - Public Policy - Amount paid for the purpose of securing seat in Medical College and not as loan Agreement, if against public policy Amount, if refundable." The Madras High Court also stress on the maxim in pari delicto potior est condition possidentis is founded on the principles of public policy, which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as a defence before the trial Court." Therefore, quashment is not proper. 15. In another ruling reported in 2012 (2) DCR 93 of Calcutta High Court between Bejoy Prayers and State of West Bengal & Others, Calcutta High Court has held that - The complaint for dishonor of cheque - Sought quashing of, Legality Held whether there is any legally recoverable debt or not, that is a pure question of facts and non existence of legally enforceable debt or not, that is a pure question of facts and essentially the defence of the accused which cannot be gone into while exercising the revisional jurisdiction. Therefore, the petition was dismissed. 16. The learned counsel also relied upon another ruling reported in 2014(9) SCALE 3 between S. Natarajan and Sama Dharman, wherein the Hon'ble Apex Court has also laid down certain principles where issuance of cheque itself is a promise to pay time barred debt and referred to Sections 4 and 6 of the NI Act For the purpose of invoking Section 138 read with 142 of the Negotiable Instruments Act, the cheque in question must be issued in respect of legally enforceable debt or other liability Court observed that the presumption mandated by Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at the bud to avoid un-necessarily accused facing the trial. 19. Now, coming to the factual aspects of this case. 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 Rs. 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 amount to him. In total, lot of amount has been paid to the accused for the purpose of securing job to the son of the complainant. As the accused was not able to secure the job in HAL to the complainant's son, the complainant demanded for repayment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is barred by limitation. If the debt is barred by limitation but if it cannot be outrightly said that it is an illegal transaction or it is an illegal consideration, then even if the debt is time barred, if the accused is willing to pay that amount, there is no bar for the complainant to receive that amount. Therefore, the illegal consideration or time barred debt stands on a different footing and illegal consideration is only barred from recovery. Therefore, the said ruling cited by the learned counsel is not presently helpful to the complainant herein. 24. So far as Section 139 of the Negotiable Instruments Act is concerned, of course there is a presumption under law. Initially the court has to draw presumption in favour of the complainant if on plain reading of the complaint, the court is of the opinion that the complainant has pleaded that there existed a legally recoverable debt and in support of that contention. The presumption has to be raised in favour of the complainant regarding existence of legally recoverable debt. But, if an illegal consideration is relied upon by the complainant himself, then such presumption u/s.139 of the Negotiable Instruments Act, cannot be ra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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