Himachal Pradesh High Court
Subhash Chand vs Mohan Singh Thakur on 30 July, 2025
( 2025:HHC:25363 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Appeal Nos 341 of 2018.
.
Reserved on: 15.07.2025.
Date of Decision: 30.07.2025.
Subhash Chand ...Petitioner.
Versus
Mohan Singh Thakur ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner : Mr. Sudhir Thakur, Senior
Advocate, with Mr. Karun Negi,
Advocate.
For the Respondent : M/s. Amrik Singh & Hitesh Kumar,
Advocates.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 20.04.2018, passed by learned Sessions Judge, Kinnaur,
Session Division at Rampur Bushahr Camp at Reckong Peo, H.P.
(learned Appellate Court), vide which the judgment of
conviction and order of sentence dated 24.06.2017 passed by
learned Chief Judicial Magistrate Kinnaur, at Reckongpeo
(learned Trial Court) were set aside and the accused was
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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acquitted of the commission of an offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
.
(Parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience.)
2. Briefly stated, the facts giving rise to the present
appeal are that the complainant filed a complaint before the
learned Trial Court against the accused for the commission of an
offence punishable under Section 138 of the NI Act. It was
asserted that the complainant is an Agriculturalist and a
Registered Government Contractor. Accused promised the
complainant to get the contract work of construction in Tarni
Hydro Pvt. Ltd in the year 2014. Accused demanded a sum of
₹15,00,000/- from the complainant for this purpose. The
complainant paid the amount to the accused in instalments. The
accused failed to obtain the work. He issued two cheques i.e., one
amounting to ₹10,00,000/- and another amounting to
₹5,00,000/- to return the amount. The complainant presented
the cheque of ₹10,00,000/- to his bank; however, the cheque
was returned with the remark “insufficient funds”. The
complainant served a notice upon the accused asking him to
repay the amount within 15 days from the date of receipt of the
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notice. The notice was duly served upon the accused, but the
accused failed to repay the money. Hence, the complaint was
.
filed before the learned Trial Court to take action as per law.
3. The learned Trial Court found sufficient reasons to
summon the accused. When the accused appeared before the
learned Trial Court, a notice of accusation was put to him for the
commission of an offence punishable under Section 138 of the NI
Act, to which he pleaded not guilty and claimed to be tried.
4. The complainant examined himself (CW1) to prove
his case.
5. The accused, in his statement recorded under Section
313 of Cr.P.C., stated that the cheque was issued as security. He
admitted that the notice was served upon him and claimed that
he had sent a reply to the notice. He stated that he was innocent
and was falsely implicated. He was not liable to repay any
amount to the complainant. He did not choose to lead any
defence evidence.
6. Learned Trial Court held that the issuance of the
cheque was not disputed. The accused claimed that the cheque
was issued as a security, but mere issuance of a cheque as
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security will not absolve the accused of the commission of
crime. The accused did not prove that the contract was awarded
.
to the complainant as promised by him. Accused was a Technical
Advisor and had nothing to do with the process of the award of
the tender. He misled the complainant by using his official
position and assured the complainant that the work would be
awarded to him. He obtained ₹15,00,000/- from the
complainant for this purpose. Since the work was not awarded to
the complainant, therefore, the accused was liable to return the
amount of ₹15,00,000/-. The cheque was dishonoured with
endorsement “insufficient funds”. The receipt of the notice was
not disputed. Hence, all the ingredients of the commission of an
offence punishable under Section 138 of the NI Act were
satisfied. Consequently, the accused was convicted of the
commission of an offence punishable under Section 138 of NI Act
and was sentenced to undergo simple imprisonment for six
months and pay a compensation of ₹13,00,000/- to the
complainant.
7. Being aggrieved from the judgment and order passed
by learned Trial Court, the accused filed an appeal, which was
decided by learned Sessions Judge, Kinnaur Sessions Division at
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Rampur Bushahr, Camp at Reckonpeo (learned Appellate Court).
Learned Appellate Court concurred with the findings recorded
.
by learned Trial Court that since the issuance of the cheque was
not disputed, therefore, a presumption would arise that the
cheque was issued in discharge of the legal liability. The
complainant asserted that the cheque was issued in part
payment of the money received by the accused. He admitted that
the cheque was issued as a security. The words as security were
also mentioned on the reverse side of the cheque. The
complainant admitted that the contract was cancelled and there
was no evidence that the work was awarded to some other
person; therefore, the condition for presenting the cheque that
the work was not allotted to the complainant was not satisfied.
The requirements of Section 138 of the NI Act were not satisfied,
and the matter was civil. Consequently, the appeal was allowed
and the judgment and order passed by the learned Trial Court
were set aside.
8. Being aggrieved by the judgment passed by the
learned Appellate Court, the complainant has filed the present
appeal asserting that the learned Appellate Court erred in
appreciating the material placed before it. The accused admitted
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the issuance of the cheque, and the burden is upon him to rebut
the presumption attached to the cheque. There is no evidence
.
that the work was allotted to the complainant; hence, the
accused was liable to return the money taken by him from the
complainant. The cheque was not issued as a security but for the
repayment of the amount. Learned Appellate Court dismissed
the complaint on a hyper-technical ground. The judgment
passed by the learned Appellate Court is not sustainable;
therefore, it was prayed that the present appeal be allowed and
the judgment passed by the learned Appellate Court be set aside.
9. An application for additional evidence was also filed
to place the judgment and decree passed by learned Senior Civil
Judge, Kinnaur at Reckong Peo on record.
10. I have heard Mr. Sudhir Thakur, learned Senior
Counsel, assisted by Mr. Karun Negi, learned counsel for the
appellant/complainant and M/s. Amrik Singh & Hitesh Kumar,
learned counsel, for the respondent/accused.
11. Mr. Sudhir Thakur, learned Senior Counsel for the
appellant/complainant, submitted that the learned Appellate
Court erred in dismissing the complaint. The accused had
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admitted the issuance of the cheque, and a presumption arose in
favour of the complainant that the accused had issued the
.
cheque in discharge of his legal liability. There is no evidence
that the accused had fulfilled the promise made by him to the
complainant regarding the allotment of work. The accused had
taken ₹15,00,000/- for getting the work allotted to the
complainant. When the work was not allotted to the
complainant, the accused was liable to return the money; hence,
even if the cheque was issued as a security, the condition for
presenting the cheque was duly satisfied. All the ingredients of
Section 138 of NI Act were duly satisfied; hence, he prayed that
the present appeal be allowed and the judgment passed by
learned Appellate Court be set aside. He relied upon the
judgment of Hon’ble Supreme Court in Sripati Singh (since
deceased) through His Son Gaurav Singh Vs. State of Jharkhand &
Anr., Criminal Appeal Nos 1269-1270 of 2021, decided on 28 th
October, 2021, in support of his submission.
12. Mr. Amrik Singh, learned counsel for the
respondent/accused, submitted that the learned Appellate Court
had taken a reasonable view while acquitting the accused, and
this Court should not interfere with the reasonable view of the
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learned Appellate Court. As per the complainant, the money was
paid as a bribe, and issuance of the cheque for the return of the
.
bribe does not constitute a legally enforceable debt. No liability
arises in such a case; hence, he prayed that the appeal be
dismissed. He relied upon the judgment in M.S. Narayan Menon
@ Mani Vs. State of Kerala & Anr. 2006 (6) SCC 39, in support of
his submission.
13. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
14. A heavy reliance was placed upon the judgment
passed by learned Senior Civil Judge to submit that the suit
filed by the complainant/appellant has been decreed and the
appeal should be allowed. This submission is not acceptable.
15. Sections 40 to 44 of the Indian Evidence Act deal with
the admissibility of the judgments of the Court. Section 40
provides that a judgment, order or decree which prevents any
Court from taking cognisance or holding a trial is relevant. It is
not the case of the applicant that the judgment passed by the
learned Senior Civil Judge prevents the Court from taking
cognisance or holding a trial. Thus, it does not fall within the
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purview of Section 40 of the Indian Evidence Act. Section 41 of
the Indian Evidence Act deals with the judgments delivered by
.
probate, matrimonial, admiralty or insolvency jurisdiction.
Learned Senior Civil Judge was not exercising any of these
jurisdictions while delivering the judgment. Hence, the
judgment is not admissible under Section 41 of the Indian
Evidence Act. Section 42 of the Indian Evidence Act deals with
judgments, orders or decrees if they relate to a matter of public
nature relevant to the inquiry. The judgment of learned Senior
Civil Judge does not deal with a matter of public nature, and the
judgment is not admissible under Section 42 of the Indian
Evidence Act. Section 43 provides that judgments, orders or
decrees other than those mentioned in Sections 40, 41 and 42
are irrelevant unless the existence of such judgment, order or
decree is a fact in issue or relevant fact in some other provision
of the Act. It was held in State of Bihar v. Radha Krishna Singh,
(1983) 3 SCC 118, that a judgment which does not fall within
Sections 40 to 42 of the Indian Evidence Act is inadmissible in
evidence. It was observed:
42. Taking the first head, it is well settled that judgments
of courts are admissible in evidence under the provisions
of Sections 40, 41 and 42 of the Evidence Act. Section 43,::: Downloaded on – 30/07/2025 21:25:20 :::CIS
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( 2025:HHC:25363 )which is extracted below, clearly provides that those
judgments which do not fall within the four corners of
Sections 40 to 42 are inadmissible unless the existence of.
such judgment, order or decree is itself a fact in issue or a
relevant fact under some other provisions of the
Evidence Act:
43. Judgments, etc., other than those mentioned in
Sections 40 to 42, when relevant-Judgments, orders or
decrees, other than those mentioned in Sections 40, 41
and 42, are irrelevant unless the existence of such
judgment, order or decree, is a fact in issue, or is relevantunder some other provision of this Act.
Some courts have used Section 13 to prove the
admissibility of a judgment as coming under the
provisions of Section 43, referred to above. We are,
however, of the opinion that where there is a specific
provision covering the admissibility of a document, it is
not open to the court to call into aid other general
provisions in order to make a particular document
admissible. In other words, if a judgment is not
admissible as not falling within the ambit of Sections 40
to 42, it must fulfil the conditions of Section 43;
otherwise, it cannot be relevant under Section 13 of the
Evidence Act. The words “other provisions of this Act”
cannot cover Section 13 because this section does not
deal with judgments at all.
It is also well settled that a judgment in rem, like
judgments passed in probate, insolvency, matrimonial or
guardianship or other similar proceedings, is admissible
in all cases whether such judgments are inter partes or
not. In the instant case, however, all the documents
consisting of judgments filed are not judgments in rem
and therefore, the question of their admissibility on that
basis does not arise. As mentioned earlier, the judgments
filed as Exhibits in the instant case are judgments in
personam and, therefore, they do not fulfil the
conditions mentioned in Section 41 of the Evidence Act.”
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16. Thus, the judgment is irrelevant as per Section 43 of
the Indian Evidence Act and cannot be taken on record. Hence,
.
the present application fails, and the same is dismissed.
17. The present appeal has been filed against a judgment
of acquittal. It was laid down by the Hon’ble Supreme Court in
Surendra Singh v. State of Uttarakhand, 2025 SCC OnLine SC 176:
(2025) 5 SCC 433 that the Court can interfere with a judgment of
acquittal if it is patently perverse, is based on misreading of
evidence, omission to consider the material evidence and no
reasonable person would have recorded the acquittal based on
the evidence led before the learned Trial Court. It was observed:
“11. Recently, in the case of Babu Sahebagouda
Rudragoudar v. State of Karnataka 2024 SCC OnLine SC4035, a Bench of this Court to which one of us was a
Member (B.R. Gavai, J.) had an occasion to consider the
legal position with regard to the scope of interference in
an appeal against acquittal. It was observed thus:
“38. First of all, we would like to reiterate the
principles laid down by this Court governing the scope
of interference by the High Court in an appeal filed by
the State for challenging the acquittal of the accused
recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh
Prasad v. State of Bihar, (2022) 3 SCC 471: (2022) 2 SCC
(Cri) 31] encapsulated the legal position covering the
field after considering various earlier judgments and
held as below: (SCC pp. 482-83, para 29)::: Downloaded on – 30/07/2025 21:25:20 :::CIS
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( 2025:HHC:25363 )“29. After referring to a catena of judgments, this
Court culled out the following general principles
regarding the powers of the appellate court while.
dealing with an appeal against an order of acquittal
in the following words: (Chandrappa
case [Chandrappa v. State of Karnataka, (2007) 4 SCC
415: (2007) 2 SCC (Cri) 325], SCC p. 432, para 42)
’42. From the above decisions, in our considered
view, the following general principles regarding
the powers of the appellate court while dealing
with an appeal against an order of acquittal
emerge:
(1) An appellate court has full power to
review, reappreciate, and reconsider the
r evidence upon which the order of acquittal is
founded.
(2) The Criminal Procedure Code, 1973 puts
no limitation, restriction or condition on the
exercise of such power and an appellatecourt, on the evidence before it, may reach its
own conclusion, both on questions of fact and
law.
(3) Various expressions, such as “substantial
and compelling reasons”, “good and
sufficient grounds”, “very strong
circumstances”, “distorted conclusions”,“glaring mistakes”, etc., are not intended to
curtail the extensive powers of an appellate
court in an appeal against acquittal. Such
phraseologies are more in the nature of
“flourishes of language” to emphasise the
reluctance of an appellate court to interfere
with an acquittal than to curtail the power of
the court to review the evidence and to come
to its own conclusion.
(4) An appellate court, however, must bear in
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( 2025:HHC:25363 )double presumption in favour of the
accused. Firstly, the presumption of
innocence is available to him under the.
fundamental principle of criminal
jurisprudence that every person shall be
presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly,the accused, having secured his acquittal, the
presumption of his innocence is further
reinforced, reaffirmed, and strengthened by
the trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the
appellate court should not disturb the finding
of acquittal recorded by the trial court.”
40. Further, in H.D. Sundara v. State of Karnataka [H.D.
Sundara v. State of Karnataka, (2023) 9 SCC 581: (2023) 3
SCC (Cri) 748] this Court summarised the principles
governing the exercise of appellate jurisdiction while
dealing with an appeal against acquittal under Section
378CrPC as follows: (SCC p. 584, para 8)
“8. … 8.1. The acquittal of the accused further
strengthens the presumption of innocence.
8.2. The appellate court, while hearing an appeal
against acquittal, is entitled to reappreciate the oral
and documentary evidence.
8.3. The appellate court, while deciding an appeal
against acquittal, after reappreciating the evidence,
is required to consider whether the view taken by
the trial court is a possible view which could have
been taken on the basis of the evidence on record.
8.4. If the view taken is a possible view, the
appellate court cannot overturn the order of
acquittal on the ground that another view was also
possible; and
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8.5. The appellate court can interfere with the order
of acquittal only if it comes to a finding that the
only conclusion which can be recorded on the basis
.
of the evidence on record was that the guilt of the
accused was proved beyond a reasonable doubt and
no other conclusion was possible.”
41. Thus, it is beyond the pale of doubt that the scope
of interference by an appellate court for reversing the
judgment of acquittal recorded by the trial court in
favour of the accused has to be exercised within the
four corners of the following principles:
41.1. That the judgment of acquittal suffers from
patent perversity.
41.2. That the same is based on a misreading/omission
to consider material evidence on record; and
41.3. That no two reasonable views are possible and
only the view consistent with the guilt of the accused
is possible from the evidence available on record.”
12. It could thus be seen that it is a settled legal position
that the interference with the finding of acquittal
recorded by the learned trial judge would be warranted bythe High Court only if the judgment of acquittal suffers
from patent perversity; that the same is based on amisreading/omission to consider material evidence on
record; and that no two reasonable views are possible and
only the view consistent with the guilt of the accused ispossible from the evidence available on record.”
18. A similar view was taken in Bhupatbhai Bachubhai
Chavda v. State of Gujarat, 2024 SCC OnLine SC 523, wherein it was
observed: –
“6. It is true that while deciding an appeal against
acquittal, the Appellate Court has to reappreciate the
evidence. After re-appreciating the evidence, the first
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( 2025:HHC:25363 )is whether the view taken by the Trial Court was a
plausible view that could have been taken based on the
evidence on record. Perusal of the impugned judgment of.
the High Court shows that this question has not been
adverted to. The Appellate Court can interfere with the
order of acquittal only if it is satisfied after reappreciating
the evidence that the only possible conclusion was thatthe guilt of the accused had been established beyond a
reasonable doubt. The Appellate Court cannot overturn
the order of acquittal only on the ground that another
view is possible. In other words, the judgment of acquittalmust be found to be perverse. Unless the Appellate Court
records such a finding, no interference can be made with
the order of acquittal. The High Court has ignored the
well-settled principle that an order of acquittal furtherstrengthens the presumption of innocence of the accused.
After having perused the judgment, we find that the High
Court has not addressed itself to the main question.”
19. The present appeal has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
20. It was specifically mentioned in the complaint that
the accused promised the complainant to get the work of
construction allotted to him from Tarni Hydro Pvt. Ltd. and
demanded ₹15,00,000/- from the complainant, which was paid
by him. The accused issued the cheque to repay the amount so
taken by him after making the assurance of getting the work
allotted to the complainant. He admitted that the accused is the
Technical Advisor of Tarni Hydro Pvt. Ltd. He also admitted that
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the cheque was issued as a security, and the word as security was
mentioned on the reverse of the cheque.
.
21. The complainant has not explained how the accused
could have legitimately got the work allotted to
him(complainant). Learned Trial Court had rightly pointed out
that the work was to be allotted by the tender to the lowest
tenderer. The accused was merely a Technical Advisor, which
shows that the money was paid to him to influence him to get
the work allotted in the complainant’s favour. Thus, the money
was paid as consideration for getting the work allotted to the
complainant otherwise than on merit, and it was rightly
submitted on behalf of the accused that the amount was towards
the bribe for getting the work allotted.
22. In Virender Singh v. Laxmi Narain, 2006 SCC OnLine
Del 1328, a cheque was issued for arranging a job in Haryana
Police. It was held by Delhi High Court that the cheque was not
issued for a legally enforceable debt. It was observed:
“Now, the explanation in Section 138 of the said Act
makes it clear that the expression “debt or other liability”
has reference only to a legally enforceable debt or liabil-
ity. Conversely, if a cheque is issued in respect of a debt or
liability which is not legally enforceable then. Section 138
of the said Act would not apply. Section 23 of the Indian
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Contract Act, 1872, inter alia, stipulates that every agree-
ment of which the object or consideration is unlawful is
void. The said Section 23 reads as under:–
.
“23. The consideration or object of an agreement is
lawful, unless it is forbidden by law: or
is of such a nature that, if permitted, it would defeat
the provisions of any law: or
is fraudulent: or
involves or implies injury 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.”
An agreement which is void is not enforceable by law
[see: Sections 2(g) and 10 of the Indian Contract Act,
1872]. The question, therefore, is – Was the agreement
between the petitioner and the complainant for securing
a job for the complainant’s nephew in the Haryana Police,
legally enforceable? Fortunately, the answer is provided
straightaway by illustration (F) to Section 23 of the Indian
Contract Act. 1872. The said illustration (f) reads as under:
“(1) 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.”
Clearly, the facts of the present case fit into this illustra-
tion. Therefore, it can be safely stated that the agreement
between the petitioner and the complainant was void as
the consideration of Rs. 80.000/- was in the nature of an
illegal gratification and was unlawful. The next question,
taking illustration (f) further, is – B having paid A the
promised sum of 1.000 rupees but, A not fulfilling his
promise of obtaining for B an employment in public ser-
vice, does B have a remedy in law to seek restitution and
return of the 1000 rupees that he has paid to A? What is
the obligation of a person who has received an advantage
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under a void agreement? Is A bound to return the sum of
1,000/- rupees to B?
xxxx
.
In Kuju Collieries Ltd. v. Jharkhand Mines Ltd. (1974) 2 SCC
533, a sum of Rs. 80,000/- (coincidentally) had been paid
by one party as salami for a mining lease. The stipulation
for payment of salami was illegal, and the lease on the ba-
sis of that was also illegal. The question of the return of
the said sum of Rs. 80.000/- arose in the context of the
provisions of the said Section 65. The Supreme Court held
that since the parties were aware of the illegality of the
agreement at the time it was entered into, it was not a
case of an agreement which was “discovered to be void”
subsequent to its execution. Consequently, Section 65 was
found not to be applicable and the return of the sum of Rs.
80,000/- could not be enforced. “The Supreme Court ob-
served as under: —
“12. The further question is whether it could be said
that this contract was either discovered to be void or
became void. The facts enumerated above would showthat the contract was void at its inception, and this is
not a case where it became void subsequently. Nor
could it be said that the agreement was discovered tobe void after it was entered into. As pointed out by the
trial Court, the plaintiff was already in the business ofmining and had the advantage of consulting its
lawyers and solicitors. So there was no occasion for theplaintiff to have been under any kind of ignorance of
law under the Act and the Rules. Clearly, therefore,
this is not a case to which Section 65 of the Contract
Act applies. Nor is it a case to which Section 70 or Sec-
tion 72 of the Contract Act applies. The payment of the
money was not made lawfully, nor was it done under a
mistake or under coercion.
13. We agree with the trial Court that the plaintiff
should have been aware of the illegality of the agree-
ment even when it entered into it, and therefore Sec-
tion 65 of the Contract Act cannot help it.”
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Clearly, a review of the legal position with regard to the
scope and ambit of the said Section 65 indicates that it
would not apply to cases falling under Section 23. In other
.
words, agreements which are void ab initio and whose il-
legality is known to the parties at the time of execution
would not fall within the purview of Section 65. An agree-
ment of the kind mentioned in illustration (f) to Section
23 and the one at hand being void ab initio and to the
knowledge of the parties would also not benefit from the
equitable principle of restitution embedded in Section 65.
So, neither the sum of 1.000 rupees mentioned in the said
illustration (f) nor the sum of Rs. 80.000/- paid in the
present case is recoverable in law.
10. In view of the clear position based on statutory provi-
sions, it is not open to set up the position in English law
as crystallised in the maxim in pari delicto portior est con-
ditio possidentis (defendants) and then to urge that the
present case falls in the category of exceptions to that
rule and therefore the money it legally paid can be recov-
ered under law. But, as the learned counsel for the re-
spondent laid stress on this submission and placed re-
liance on two decisions of the Supreme Court in Situ
Ram v. Radha Bai (supra), and Mohd. Salimuddin v. Misri
Lal (supra), a discussion on these aspects is necessary.
11. The doctrine or rule of pari delicto is the embodiment
of the principle that the courts will refuse to enforce an
illegal agreement at the instance of a person who is him-
self a party to an illegality or fraud. As per Black’s Law Dic-
tionary (fifth edition), the maxim – pari delicto portior est
conditio possidentis (defendant is)- means: —
“In a case of equal or mutual fault [between two par-
ties], the condition of the party in possession [or de-
fending] is the better one. Where each party is equally
in fault, the law favours him who is actually in posses-
sion. Where the fault is mutual, the law will leave the
case as it finds it.”
In Herbert Broom’s “A Selection of Legal Maxims” (10th
edition), the maxim is explained as follows:
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“The maxim, in pari delicto porlior est conditio possi-
dentis, is as thoroughly settled as any proposition of
law can be. It is a maxim of law established, hot for the.
benefit of plaintiffs or defendants, but 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 con-
tract, to recover it back; ‘for the Courts will not assist
an illegal transaction in any respect’. The maxim is
therefore, intimately connected with the more com-
prehensive rule of our law, ex turpi causa no oritur actio,on account of which no court will “allow itself to be
made the instrument of enforcing obligations alleged
to arise out of a contract or transaction which is ille-
gal”; and the maxim may be said to be a branch of thatcomprehensive rule: for the well-established test, for
determining whether the money or property which has
been parted with in connection with an illegal transac-
tion can be recovered in a Court of justice, is to ascer-
tain whether the plaintiff, in support of his case, or aspart of his cause of action, necessarily relies upon the
illegal transaction: if he “requires aid from the illegal
transaction to establish his case, – the Court will notentertain his claim.”
12. So, if the maxim in pari delicto etc., were to apply, the
complainant/respondent No. 1 could not have a claim for
recovering the Rs. 80.000/- paid by way of illegal gratifi-
cation for securing a job for his nephew in the Haryana
Police. It is here that the learned counsel for the respon-
dent No. 1 pressed into service the observations of the
Supreme Court in paragraph 11 of the decision of Sita
Ram v. Radha Bai (supra), to submit that there are three
exceptional circumstances to which the maxim does not
apply and that the present case falls in one of those. The
three classes of cases being:–
(a) Where the illegal purpose has not yet been sub-
stantially carried into effect before it is sought to
recover money paid or goods delivered in further-
ance of it;
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21
( 2025:HHC:25363 )
(b) Where the plaintiff is not in pari delicto with the
defendant;
(c) Where the plaintiff does not have to rely on the
.
illegality to make out his claim.
If the facts of the present case are examined, it would be
immediately clear that it does not fall in any of these
three classes of cases. The first class of cases deals with
situations or agreements where the object is unlawful. In
the present case – securing a job in the Haryana Police for
the nephew – is not an unlawful object. What is unlawful
is the consideration paid for it. The consideration having
already been paid, the illegality stood completed on the
part of the respondent No. 1. And since the respondent No.
1 would have to rely upon this illegality to make out his
claim or enforce the same, this case also does not fall
within the third class of cases mentioned above. This
leaves us with the second class of cases where the parties
are not in pari delicto. In Sita Ram v. Radha Bai (supra), the
Supreme Court was dealing with a case where the parties
were not “in pari delicto” or, to put it differently, “in
equal fault”. And in that backdrop, the Supreme Court
observed that it is settled law that where the parties are
not in pari delicto, the less guilty party may be able to re-
cover money paid or property transferred, under the con-
tract. It was further held that such a possibility could
arise in three situations: —
(1) The contract may be of a kind which has been
made illegal by statute in the interest of a particular
class of persons of whom the plaintiff is one:
(2) The plaintiff must have been induced to enter
into the contract by fraud by strong pressure:
(3) The defendant is under a fiduciary duty to the
plaintiff and it is in connection with this fiduciary
relationship that moneys have come into his hands
as proceeds of a transaction albeit illegal.
None of these three situations arise in the present case. In
any event, the parties in the present were pari delicto so,
no investigation into whether the any of these three situ-
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22
( 2025:HHC:25363 )
ations arose is called for. The Supreme Court decision
in Sita Ram v. Radha Bai (supra) is on a different footing.
There, the parties were not in pari delicto and the case fell
.
under the third situation of the fiduciary relationship re-
ferred to above.
In the present case, neither party is a victim of exploita-
tion. Both had voluntarily and by their free will joined
hands to flout the law. Therefore, in terms of the Supreme
Court decisions in Sita Ram v. Radha Bai (supra)
and Mohd. Salimuddin (supra) themselves, the parties be-
ing in pari delicto, the doctrine would apply and the sum
of Rs. 80.000/- could not be recovered in a court of law.
Meaning thereby that there did not exist any legally en-
forceable debt or liability for the discharge of which it
could be said that the cheque in question was issued. Con-
sequently, Section 138 of the said Act would not be at-
tracted. This legal-position was not appreciated by the
courts below and it is for this reason that they fell into er-
ror. That being the case, the conviction of the petitioner is
set aside. It is, however, made clear by the learned coun-
sel for the petitioner that the sum of Rs. 1 lac. which had
been deposited pursuant to the orders by the court below,
has already been withdrawn by the respondent No. 1 and
that he would not be pressing for its return. The learned
counsel for the petitioner also submits that to maintain
his bona fides, he would be paying a further sum of Rs.
20.000/- within two months to the complainant/respon-
dent No. 1. He submits that the said sum will be deposited
in the trial court, which the complainant/respondent No.
1 may withdraw immediately thereafter.
23. It was held in Khaja Obedullah Vs. State of Andhra
Pradesh & Anr. 2018(3) ALT (Crl.) 192, that no Court will aid a
person who found his cause of action upon an immoral or illegal
act. It was observed:-
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23
( 2025:HHC:25363 )
8. In G.Pnakajakshi Amma and Ashok Kumar Aggarwal
cases (1 and 2 supra) cited by the petitioner, the Apex
Court reiterated the principle ex dolo malo non oritur.
action, i.e. “no Court will lend its aid to a man who founds
his cause of action upon an immoral or illegal act”.
Hence, the question is whether the complainant and her
husband paid the amount to the father of the accused for
an illegal purpose, i.e. to bribe the imposters treating
them as IT officers or whether they paid the amount for a
genuine purpose to settle their income tax dues and to
avoid imminent house search. If their motive is to bribe
the duped officials, certainly the Court will not lend its
helping hand to the complainant for recovery of such
amounts since the object of such payment is an illegal one
as laid in the aforesaid principle. In this regard, a perusal
of the FIR No.423 of 2015 lodged by Shavakath Hyder
Qureshi, the husband of the complainant, would show
that they paid the amounts from time to time to the
father of the accused for clearance of income tax dues, but
not as bribes to the officials. He never stated that he paid
the amounts as a bribe. On the other hand, his allegation
in the FIR is that on 05.09.2014, when he and Khaja
Kalimulla-father of the accused, while taking lunch, three
persons proclaiming themselves as IT officers entered
their house and told them that there were income tax
dues and they wanted to search the house and asked to
give the keys. On that, Kalimulla took them aside and
talked with them and came to Hyder Qureshi and
informed him that as per office records, he fell due of Rs.
12 lakhs towards income tax. On that, Qureshi informed
that he did not have more than Rs. 5 lakhs. Again,
Kalimulla took those persons aside and pretended to have
talked with them and came to Qureshi and told him to pay
Rs. 5 lakhs and pay the remaining amount in two days.
Accordingly, the complainant and her husband, Qureshi,
paid Rs. 5 lakhs on that day and the remaining amount of
Rs. 7 lakhs after 2 days to Kalimulla to discharge the tax
claim. Thereafter, again on 22.07.2015, the imposters
telephoned him and told him that still income tax was
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24
( 2025:HHC:25363 )
pending. Then, he informed the said fact to Kalimulla,
who, in turn, pretended to have talked with IT officers
and told Qureshi to pay Rs. 6 lakhs towards the balance of
.
income tax due and Rs. 24,000/-towards fine to close the
case. Believing his words, they paid the amount, and the
total amount paid was more than Rs. 18 lakhs. They
ultimately realised that Kalimulla and three others
cheated them in the guise of IT officers.”
24. In Dipesh Thakorbhai Tandel Vs. Hiren Kishorbhai
Bhatt 2020 (3) DCR 345, a cheque was issued to return the
amount taken for securing the Government Job. It was held that
it does not fall within the definition of legally enforceable debt.
It was observed:-
“7. Even if it is presumed that the cheque is issued by
the accused, it was not of the transaction falling withinthe definition of legally enforceable debt, which the
complainant has miserably failed to prove so and,
therefore, the trial Court has, after assigning goodreasons, acquitted the respondent-accused.
8. I am in full agreement with the reasons assigned by
the learned Judge and, therefore, no case is made out to
grant Special Leave to Appeal under sub-section (4) ofSection 378 of the Code.”
25. This position was reiterated in B. Babu Rao Vs. Kishore
Naidu Durga Manik 2022 STPL 13464 Telangana, wherein it was
observed:-
5. Learned counsel for the respondent/accused
submits that accepting that the amount of
Rs.3,00,000/- was taken by the respondent/ accused,
for the purpose of securing a job, the same is illegal::: Downloaded on – 30/07/2025 21:25:20 :::CIS
25
( 2025:HHC:25363 )and in the absence of there being anything which
suggests that the amount was taken as loan, the
requirement of a ‘enforceable debt’ is lacking, for.
which reason, the appeal fails. Further, to draw a
presumption under Section 139 of the Negotiable
Instruments Act, there is an initial burden on the
complainant to prove that the same is a legally
enforceable debt. He relied on the judgment of
Karnataka High Court in the case of R.Parimala Bai v.
Bhaskar Narasimhaiah, 2018(4) R.C.R (Criminal) 26:
(2018 ACD 982 (KAR) wherein it is held as follows:
“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, theaccused 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 thecomplainant 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. Inthis context, it is stated that, on various
occasions, the complainant has paid someamounts to him. As the accused could not get the
job to the son of the complainant, thecomplainant 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 of the
money. In that context, it is said that on 1.5.2009,
the accused issued a cheque bearing No.262871 for::: Downloaded on – 30/07/2025 21:25:20 :::CIS
26
( 2025:HHC:25363 )a sum of Rs. 10 lakhs and on presentation of the
said cheque it came to be dishonoured on the
ground of ‘funds insufficient’. After complying.
the other provisions of Section 138 of the
Negotiable Instruments, it appears the complaint
came to be lodged.
20. It is seen that, there are absolutely no
allegations whatsoever that the accused has taken
this money as a loan or a debt or as a liability at
any point of time. It is clear cut case of the
complainant that, he has paid money for thepurpose 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 bythe 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 asagainst the public policy for illegal purpose.”
Under similar circumstances, in the above cited
judgment the accused took an amount of Rs. 10.00
lakhs for providing a job and when he failed to do
so, issued a cheque to return the said amount. The
same was dishonoured for the reason of ‘funds
insufficient’. In the said circumstances, the Court
held that the said amount was given towards
illegal purpose and in the circumstances, it cannot
be said that it is a legally recoverable debt to
attract an offence under Section 138 of the
Negotiable Instruments Act.
6. The other judgment, which the learned counsel for
the respondent/accused relied upon is in the case of
K.N.Beena v. Muniappan and another (Appeal (Crl.)
1066 of 2001,(2001 CRI L J 4745)(SC) wherein the
Hon’ble Supreme Court held that burden of proving
that a chqeue has not been issued for debt or liability
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27
( 2025:HHC:25363 )
is on the accused, after the initial burden is
discharged.
7. The learned counsel for the appellant alternatively
.
submits that the case has to be remanded to the trial
Court for the purpose of providing an opportunity to
the complainant/ appellant to prove his case.
8. The three Judge Bench judgment of Hon’ble
Supreme Court in the case of Kuju Colieries Ltd., v.
Jharkhand Mines Limited (1974) 2 Supreme Court Cases
533 :(AIR 1974 SC 1892), the Hon’ble Supreme Court
held that an agreement entered into between the
parties for an illegal purpose, the same cannot be
recovered.
9. The High Court of Kerala in the case of J.Daniel v.
State of Kerala (2005 SCC OnLine Ker 366) :(2005 CRI L
J 4095) (Ker) held as follows:
“8. A reading of the above would show that any
agreement opposed to law or forbidden by law is
not enforceable. Every debt or liability upon
which a cheque is issued is not enforceable. Forexample, if an officer of defence force receives a
cheque for consideration on the basis of an
agreement to pass on military secrets, such acheque is not enforceable under Section 138 of the
Act. It can be interpreted that any debt or liabilityarising out of a contract or promise, which is
unlawful or not legally enforceable, would not
constitute an offence under Section 138 of theAct.”
10. The appellant/complainant himself admits that
the cheque was issued for the purpose of securing job
in Midhani company which is not by any legal means.
In the said circumstances, when the cheque was
drawn not for the purpose of securing any debt or
liability, but pursuant to an illegal contract of an
agreement entered into between the complainant
and the accused, it cannot be said that it is a legally
enforceable debt and such contracts/agreements are
prohibited under law. For the said reason, as the
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28
( 2025:HHC:25363 )
cheque drawn was not in support of any debt or
liability, the same cannot be legally enforceable.
11. The argument of the learned counsel for the
.
appellant that the case be remanded for denovo trial
cannot be entertained for the reason of the appellant
not making out any grounds to remand the matter
for fresh trial. There is no illegality either procedural
or otherwise committed by the learned Magistrate to
remand the matter back for fresh trial as urged by
the appellant/complainant.
26. It was held by this Court in Naresh Kumar Vs. Joginder
Singh 2023 STPL 13328 HP, that where the money was advanced
for securing a job in the Indian Railway, and the cheque was
issued to return this amount, the cheque was not issued in
discharge of the legal liability. It was observed:-
“19. Legislature, in its wisdom, has elaborated the term
‘debt or other liability’, in the explanation to Section 138 of
the NI Act, reproduced above, as ‘a legally enforceable debtor other liability’.
20. As per the stand taken, in the complaint, there was
alleged agreement between the complainant and accused to
get the son of the complainant recruited in the Railway, forwhich, the complainant had agreed and paid Rs. 4,50,000/.
21. In this factual background, the first and foremost
question, which arises for determination before this Court,
is with regard to the fact that whether the issuance of the
cheque, amounting to Rs.4,50,000/, which was allegedly
received by the petitioner, for getting the son of the
complainant, recruited in the Railway, falls in the definition
of the legally enforceable debt or other liability. In this
regard, the provisions of Sections 23 and 24 of the Contract
Act, assume significance and those provisions are
reproduced as under:
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29
( 2025:HHC:25363 )
23. What considerations and objects are lawful, and what
not.–
The consideration or object of an agreement is lawful,
.
unless– “it is forbidden by law; or is of such a nature
that, if permitted, it would defeat the provisions of any
law; or is fraudulent; or involves or implies, injury 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.
24. Agreements void, if considerations and objects
unlawful in part.–If any part of a single consideration for
one or more objects, or any one or any part of any one of
several considerations for a single object, is unlawful, the
agreement is void.
22. If the facts and circumstances of the present case are
seen in the light of the bare provisions of Sections 23 and 24
of the Indian Contract Act, then the alleged agreement, with
regard to getting the son of the complainant recruited in the
Indian Railway, falls within the definition of void agreement.
23. As per Section 138 of the NI Act, it is sine qua non that
there should be an existence of legally recoverable debt,
whereas, in this case, the amount allegedly has been paid by
the complainant to the accused for securing the job for his
son in the Indian Railway.
24. As per para 2 of the complaint, the accused, who is an Ex.
Serviceman has allegedly allured the complainant and many
other persons to get their wards recruited in the Indian
Railway.
25. Bare reading of the complaint makes the object of the
complainant, to allegedly advance the amount to accused,
unlawful.
26. Hon’ble Apex Court in G. Pankajakshi Amma & Others
versus Mathai Mathew (dead) through LRs & Another, (2004)
12 Supreme Court Cases 83, has held that the Court cannot
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30
( 2025:HHC:25363 )
come to the aid of the party in an illegal transaction.
Relevant para 10 of the judgment is reproduced, as under:
“10. There is any reason also why the impugned judgment
.
cannot be upheld. According to the 1st respondent, these
transactions were to be unaccounted transactions.
According to the 1st respondent, all these amounts are
paid in cash. If these are unaccounted transactions thenthey are illegal transactions. No court can come to the aid
of the party in an illegal transaction. It is settled law that
in such cases the loss must be allowed to lie where it falls.
In this case, as these are unaccounted transactions, theCourt could not have lent its hands and passed a decree.
For these reasons also the suit was required to be
dismissed.” (self emphasis supplied)
27. Certainly, the amount allegedly paid by the complainant
was for illegal purpose i.e., for getting the son of the
complainant recruited, in the Indian Railway, by paying
money. Meaning thereby, their contract was illegal, being
contrary to the law, as well as, against the public Policy.
28. As such, the complainant cannot maintain an action to
enforce the violation of the provisions of Section 138 of the
NI Act, on the basis of illegal transaction.
29. Payment of money for an illegal purpose is against
public policy, and Hon’ble Apex Court in B. Sunitha versus
State of Telangana & Another, AIR 2017 (Supreme Court)5727, has held that if the object is illegal, then the
complaint, under Section 138 of the NI Act, is notmaintainable. Relevant paragraphs 18 and 19 of the
judgment are reproduced as under:
“18. Thus, mere issuance of a cheque by the client may
not debar him from contesting the liability. If liability is
disputed, the advocate has to independently prove the
contract. Claim based on percentage of subject matter of
litigation cannot be the basis of a complaint under
Section 138 of the Act.
19. In view of the above, the claim of the respondent
advocate being against public policy and being an act of
professional misconduct, proceedings in the complaint::: Downloaded on – 30/07/2025 21:25:20 :::CIS
31
( 2025:HHC:25363 )filed by him have to be held to be abuse of the process of
law and have to be quashed.” (self emphasis supplied)
30. At the cost of repetition, the complainant could not
.
initiate the complaint against the complainant, as the
amount was allegedly paid for an illegal purpose. The
present admitted proposition of fact is squarely covered by
illustration (f) attached to Section 23 of the Contract Act,which reads as under:
” 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 isunlawful.”
27. Punjab & Haryana High Court also held in Surinder
Singh Vs. Ram Dev 2024 SCC OnLine P&H 12999, that where the
amount was paid as a bribe for securing Government
employment in the Punjab Police, and the cheque was issued to
return the amount; the cheque was not issued in discharge of the
legally enforceable debt or liability. It was observed:-
“6. Upon careful examination of the evidence and the
submissions made by the parties, it is pertinent to note
that the appellant himself unequivocally admitted during
his cross-examination before the trial Court that thecheque amount was paid as a bribe to the respondent for
securing Government employment in the Punjab Police by
certain job aspirants. Given this admission, it is
imperative to clarify that the cheque amount cannot,
under any circumstances, be deemed to have been issued
in discharge of a legally enforceable debt or liability.
7. Under Section 138 of the NI Act, the mere issuance of a
cheque does not constitute an offence unless it is proven
that the cheque was issued for the discharge of a debt or
liability that is legally enforceable. It is well-settled law::: Downloaded on – 30/07/2025 21:25:20 :::CIS
32
( 2025:HHC:25363 )that any debt or liability arising from a contract or
promise that is unlawful, immoral, or not legally
enforceable does not attract the provisions of Section 138.
of the Act. A payment made as a bribe, being an illegal and
immoral transaction, does not constitute a legally
enforceable liability. Thus, the learned trial Court
correctly concluded that no legally enforceable debtexisted in this case, and the cheque issued in furtherance
of an unlawful act cannot give rise to criminal liability
under the Negotiable Instruments Act.”
28. Therefore, it is apparent that money advanced to the
accused for getting the contract cannot be recovered. Any
cheque issued to return the amount will not be in the discharge
of a legal liability.
29. In the present case, the amount was paid for securing
the work in a Company where the accused was employed; thus,
it was in the nature of a bribe to get the contract in the
complainant’s favour, and a cheque was issued to return the
amount. The cheque was not issued in discharge of the legal
liability, and no complaint could have been filed based upon
such a cheque; therefore, the learned Appellate Court had rightly
held that the accused cannot be convicted based on the
allegations made by the complainant. This was a reasonable
view taken by the learned Appellate Court, and no interference is
required with it while deciding an appeal against the acquittal.
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33
( 2025:HHC:25363 )
30. In view of the above, the present appeal fails, and
the same is dismissed.
.
31. A copy of the judgment and the record of the learned
Courts below be sent back forthwith.
(Rakesh Kainthla)
Judge
30th July, 2025
(Shamsh Tabrez)
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