Surabhi Krishna v. Rileesh and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 17TH DAY OF NOVEMBER 2017/26TH KARTHIKA, 1939** **Crl.Rev.Pet.No. 1365 of 2017 () --------------------------------** **CC.671/2014 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PERAMBRA CRA.324/2016 of ADDL. DISTRICT & SESSIONS COURT - IV, KOZHIKODE** ## **REVISION PETITIONER/APPELLANT/ACCUSED: -------------------------------------** **SURABHI KRISHNA, D/O. KRISHNANKUTTY, AGED 28 YEARS, IDIYAPPATH HOUSE, KUTTIKKATTOOR P.O., KOZHIKODE.** **BY ADVS.SRI.K.S.ARUN KUMAR SRI.JUSTINE JACOB SMT.RESMI THOMAS SRI.P.A.VIBIN** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT: ------------------------------------** **1. RILESH, S/O. VASU, AGED 33 YEARS, KANICHATTIL HOUSE, UNNIKULAM POST, KOZHIKODE-673574.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERANKULAM - 31.** ## **BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **EL** ## ALEXANDER THOMAS, J. ----------------------------- Crl.R.P.No.1365 Of 2017 --------------------------------- Dated this the 17th day of November, 2017. ## O R D E R The petitioner is the accused for the offence under Sec.138 of the Negotiable Instruments Act, in C.C.No.671/2014 on the file of the Judicial First Class Magistrate Court-II, Perambra, instituted on the basis of a complaint filed by R-1 herein. Ext.P-1 dishonoured cheque dated 27.12.2013 is for Rs.2 lakhs. The trial court as per the impugned judgment rendered on 18.7.2016 had convicted the petitioner for the above said offence and sentenced her to undergo simple imprisonment for a period of five months and to pay a compensation of Rs.2 lakhs to the complainant under Sec.357(3) of the Cr.P.C., and in default thereof the accused was sentenced to undergo simple imprisonment for a further period of one month. Aggrieved thereby, the petitioner has preferred Crl.A.No.324/2016 before the Sessions Court, Kozhikode. The appellate court concerned (Court of Additional Sessions Judge-IV, Kozhikode), as per the impugned judgment dated 10.8.2017 had upheld the conviction and the substantive sentence of simple imprisonment for 5 months was modified and reduced to simple imprisonment till the rising of the court ::2:: Crl.R.P.No.1365 Of 2017 and sustained the compensation amount and default clause sentence and thus partly allowed the appeal. It is aggrieved by these verdicts, that the petitioner has preferred the instant Crl.R.P by taking recourse to the remedy under Sec.397 r/w Sec.401 of the Cr.P.C. 2. Heard Sri.K.S.Arunkumar, learned counsel appearing for the revision petitioner-accused and Sri.Jestin Mathew, learned Prosecutor appearing for R-2 State. In the nature of the orders proposed to be passed in this petition, notice to R-1 will stand dispensed with. 3. The brief of the case of the complainant is to the effect that the complainant and the accused’s husband are known to each other and in the last week of July, 2013, the accused and her husband approached the complainant who had promised that accused could secure a job for the complainant at Central Plantation Crop Research Institute, if the complainant pays a sum of Rs.4 lakhs in that regard and that the said amount if paid, the job will be secured to the complainant within 4 months and that if the job is not so secured within 4 months then the amount of Rs.4 lakhs will be returned back to the complainant and that later the accused had came to the house of the complainant and received Rs.4 lakhs for that purpose and at that time the accused ::3:: Crl.R.P.No.1365 Of 2017 had issued 3 cheques dated 19.12.2013, 27.12.2013 & 4.1.2014 respectively, drawn from the Federal Bank account of the accused and payable in favour of the complainant and one such cheque was for Rs.2 lakhs and other 2 cheques were for Rs.1 lakh each. The accused has failed to secure the job to the complainant and the complainant presented the cheques dated 4.1.2014 and 22.12.2013 respectively for Rs.1 lakh each for encashment through his banker, namely, South Indian Bank, Poonoor Branch and both cheques were dishonoured on the ground of 'payment stopped by drawer' and insufficiency of funds on 21.1.2014. Exts.P-3 and P-4 are the bank memos dated 21.1.2014 & 21.1.2014 respectively regarding the return of cheques. Ext.P-5 is the statutory demand notice and Exts.P-6 & P-7 are the postal receipt and postal acknowledgement card evidencing issuance of said registered notice, etc. During the trial, the complainant has examined himself as PW-1 and marked Exts.P-1 to P-7 documents. The accused has given oral evidence as DW-1 and marked Exts.D-1 to D-4 documents. PW-1 has broadly deposed in tune with the contents of the complaint in his evidence. The main defence taken up by the accused was to the effect that there was no transaction in any manner as alleged in the complaint and that the accused had borrowed an amount of of Rs.13,000/- from ::4:: Crl.R.P.No.1365 Of 2017 the Swashraya Sangam conducted by the complainant and that she had repaid the borrowed amount and there was a case against her and taking undue advantage of the situation, the complainant has forcibly made her to execute the cheque and instituted the present complaint falsely, etc. The trial court found that the evidence of PW-1 is broadly believable and credible and that the defence plea taken up by the accused is not in any manner probabilised or established. Accordingly, it was held that the accused is liable to be convicted for the offence punishable under Sec.138 of the N.I. Act, etc. These factual findings cannot be branded as perverse or unreasonable. This Court is not in a position to interfere with the said factual findings. Learned counsel appearing for the revision petitioner-accused would argue that even if it is accepted that the case of the complainant is true, still no offence is made out as the transactions alleged by the complainant, which led to the advance of the money is for illegally securing a job and for payment of bribe money, etc., and therefore there cannot be said to be any legally enforcible debt or liability in this case, etc. 4. This Court dealt with similar situation in the judgment in Francis Mathew v. State of Kerala , reported in (2005) 3 KLT 288, wherein the accused therein had obtained amount from the complainant ::5:: Crl.R.P.No.1365 Of 2017 promising that he will arrange a job for brother of the complainant and the accused failed to secure job and issued a cheque towards the amount amount obtained by him, wherein this Court repelled the argument that the cheque has not been issued for a legally recoverable debt or liability and hence not opposed to public policy unlike a bribe paid. It was held therein that the case of the complainant therein is accepted that the petitioner-accused received certain amounts which is not entitled to receive and the complainant was persuaded to part with Rs.80,000/- paid to the accused on the promise that the accused would arrange employment to his brother and he did not arrange the employment inasmuch as the accused is entitled to retain the amount which he received unlawfully and illegally and the petitioner cannot be permitted to be benefited by retaining the amount which he is not entitled to, and therefore, the claim covered by that dishonoured cheque in that case cannot be said to be rejected on the ground that it is opposed to public policy. It will be useful to refer to para 4 of the above said decision of this Court in Francis Mathew 's case (supra), which reads as follows: > “4. First of all, petitioner has no case that he had received any amount as bribe from second respondent. Petitioner is admittedly not an employee of Premier Tyres. What was alleged by second respondent was that petitioner promised that he could arrange employment for the brother of first respondent and towards that, he ::6:: Crl.R.P.No.1365 Of 2017 had received Rs.80,000/-. That amount was paid by the first respondent. On the failure of petitioner to arrange job, second respondent demanded back the amount. Petitioner then issued Ext.P1 cheque. Question is whether such payment could be termed unlawful and opposed to public policy as canvassed by learned counsel appearing for revision petitioner. On going through the decision relied on by learned counsel appearing for petitioner, if the amount claimed was for realisation of the amount agreed to be paid as bribe, it could have been said that the contract is unenforceable as opposed to public policy. Case is different herein. If the case of second respondent is accepted, petitioner received certain amount, which he is not entitled to receive. Second respondent was persuaded to part with Rs.80,000/- paid to petitioner on the promise that petitioner would arrange employment to his brother. Petitioner did not arrange the employment. Second respondent claimed it back. It was in such circumstances, petitioner issued Ext.P2 cheque. Question is whether it could be made unenforceable as opposed to public policy. On the facts and circumstances of the case, I cannot agree with the argument of learned counsel appearing for petitioner that Ext.P2 cheque is to be made unenforceable as opposed to public policy. Petitioner is not entitled to retain the amount, which he received unlawfully and illegally. Petitioner cannot be permitted to be benefited by retaining the amount which he is not entitled to. Therefore, the claim under Ext.P2 cheque cannot be rejected on the ground that it is opposed to public policy as canvassed by learned counsel appearing for petitioner.” In the decision in Saseendra Varma v. State of Kerala , reported in 2008 (3) KLT 740, this Court dealt with a situation, wherein the accused after receiving certain amount was unable to secure a job for the complainant's son and later returned the amount by way of cheque which was dishonoured. The question that was raised therein was whether the agreement to secure the job illegally on payment of donation and agreement to return the amount in case of default is valid under Sec.65 of the Contract Act and whether the agreement to return the amount in case of failure to get the appointment be said to be a legally enforcible liability, etc. This Court held that the agreement to ::7:: Crl.R.P.No.1365 Of 2017 return the money was not tainted by illegality and it is only an act of undoing an illegality by another agreement, the consideration for which was not illegal or opposed to public policy and hence the cheque drawn for discharge of a legally enforceable debt or liability and complaint under Sec.138 is maintainable, etc. It will the profitable to refer to para 5 of the Saseendra Varma's case (supra), which reads as follows: '5. I am afraid that I cannot agree with the above submissions. This is not a case where the original agreement entered into between the complainant and the accused is sought to be enforced. For example, “A” promises to arrange employment to “B” in a public service on payment of a stipulated amount which is claimed to be intended to be utilised for paying illegal gratification to the person empowered to select candidates. After “A” performing his part of the promise by securing employment, A makes an attempt to enforce the undertaking by “B” to pay the stipulated amount upon breach of such undertaking by “B”, the attempt of “A” to enforce the agreement which is void ab initio could be successfully defended by “B”. But here the accused after taking a sum of Rs.75,000/- was unable to secure the employment to the complainant as promised by him in an aided high school where the teachers are not Government Servants and where the service is not public service. Thereupon the complainant demanded the money back and the accused agreed to return the money. This agreement to return the money was not in any way tainted by any illegality. The accused was really agreeing to disgorge his ill-gotten gains. It is only an act of undoing an illegality by another agreement the consideration for which was not illegal or opposed to public policy. The cheques executed by the revision petitioner/accused in pursuance of the agreement to return the money received by him, were thus drawn for the discharge of a legally enforceable debt or liability”. I am fortified in this conclusion by the decision of a learned Single Judge in Francis Mathew v. State of Kerala (2005 (3) KLT 288).' The legal principles laid down by this Court in the decisions as in Francis Mathew v. State of Kerala , reported in (2005) 3 KLT 288 and Saseendra Varma v. State of Kerala , reported in 2008 (3) KLT 740 are squarely applicable to the facts of this case. ::8:: Crl.R.P.No.1365 Of 2017 5. The case of the complainant is that the had paid money to the accused on the promise that the accused would obtain job for the complainant in public sector corporation and with the specific condition that in case the job is not secured within the 4 months, then the said amount will be repaid and for that purpose cheques in question have been executed and issued, etc. In a case where the moneys obtained for illegally securing a job and the job is so secured and the person who has personally offered the role illegally acted to secure the job and the amount is not paid by the beneficiary and the former sues latter for the recovery, then the same is unenforceable inasmuch as the very purpose of payment of money for illegally obtaining a job is unconscionable and against public policy. Whereas on the other hand if the job is not so secured and it is agreed by the parties that the former would repay his money to the latter and cheque in that regard is issued, then permitting the former to retain the amount would itself be an illegality and enforcing such an agreement for repayment of the amount will be only for undoing the initial illegality and cheque issued in that regard as in the instant case cannot be said to be an enforceable liability, etc. For these reasons, the above said contentions raised by the accused are bereft of any merit and the same are overruled. ::9:: Crl.R.P.No.1365 Of 2017 6. The substantive sentence imposed by the trial court is simple imprisonment for 5 months and to pay compensation with default sentence for simple imprisonment for one month. The appellate court had modified the substantive sentence to imprisonment till the rising of the court. The compensation amount of Rs.2 lakhs and the default sentence clause of simple imprisonment for one month etc., have been confirmed. Therefore, the modified order passed by the appellate court cannot be said to be excessive or disproportionate. Sri.K.S.Arun Kumar, learned counsel appearing for the revision petitioner-accused would submit that in case this Court is so inclined to confirm the conviction and sentence, then this Court may grant at least 4 months’ time to the accused to pay the compensation amount of Rs.2 lakhs directly to the complainant. The said submission of the petitioner could acceded. 7. Accordingly, it is ordered that the impugned conviction, substantive sentence of imprisonment till the rising of the court, compensation of Rs.2 lakhs and default clause of simple imprisonment for one month, etc., are confirmed. The petitioner is given 4 months’ time to pay the compensation amount of Rs.2 lakhs directly to the complainant. Upon receiving the amount, the complainant shall issue ::10:: Crl.R.P.No.1365 Of 2017 necessary receipt evidencing such payment, in order to enable the accused to produce the same before the trial court about such payment. The petitioner shall appear at 11:00 a.m on 24.3.2018 to suffer imprisonment till the rising of the court and to satisfy the trial court about payment of the compensation amount of Rs.2 lakhs directly to the complainant. On default of the accused to pay the compensation amount of Rs.2 lakhs, he will have to suffer simple imprisonment for a period of one month. Until 24.3.2018, all coercive steps taken against the petitioner in execution of the sentence will stand deferred. On default on the part of the petitioner either to appear before the court below on 24.3.2018 or to make payment as directed herein above, then the trial court will be at liberty to proceed against the petitioneraccused in accordance with law. Registry will forward a copy of this order to the trial court concerned as well as R-1 (complainant). With these observations and directions, the Crl.R.P. stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A. to Judge.