- 1 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 21ST DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL PETITION NO. 101086 OF 2024 BETWEEN: ALLAMPRABHU S/O. VEERABHADRAPPA SARWAD, AGE: 45 YEARS, OCC: BUSINESS, R/O: OPP. SANMAN HOTEL, SARDAR GROUND ROAD, VETERINARY BUILDING, BELAGAVI – 590 001. …PETITIONER (BY SRI. JOSHI SHRIPRASAD JAYATEERTH & SRI. RAVIRAJ C. PATIL, ADVOCATES) AND: HALACHANDRA S/O. RAMAPPA PARASANNAVAR, AGE: 23 YEARS, OCC: STUDENT, R/O: DEVAGOUDANAHATTI POST: KHANAGAON, TQ: GOKAK, DIST: BELAGAVI – 590 016. …RESPONDENT (SOLE RESPONDENT IS SERVED BUT UNREPRESENTED) THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C., SEEKING TO CALL FOR RECORDS IN C.C.221/2024 PENDING BEFORE THE PRINCIPAL CIVIL JUDGE AND JMFC, GOKAK AND QUASH THE ENTIRE PROCEEDINGS IN C.C.221/2024 FOR THE OFFENCES PUNISHABLE UNDER SECTION 138 OF N.I. ACT, SO FAR AS THE PETITIONER/ACCUSED NO.1 IS CONCERNED. PASS ANY SUCH ORDER THAT THIS HON’BLE COURT DEEMS FIT IN THE INTEREST OF JUSTICE AND EQUITY. THIS CRIMINAL PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR ORAL ORDER This petition is filed by petitioner/accused No.1 under Section 482 of Cr.P.C., praying to quash the entire proceedings in C.C.No.221/2024, registered for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘N.I. Act’, for short) pending on the file of Principal Civil Judge and JMFC, Gokak. 2. Respondent/complainant initiated proceedings against the petitioner and another for offence punishable under Section 138 of N.I. Act in P.C.No.332/2023. The learned Principal Civil Judge and JMFC, Gokak has taken cognizance only against petitioner/accused No.1 for offence punishable under Section 138 of N.I. Act and registered in C.C.No.221/2024. The proceedings of the said criminal case are sought to be quashed. 3. It is the case of the respondent/complainant in his complaint that he had given Rs.4,50,000/- to the - 3 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 petitioner/accused for securing Government job to him and inspite of two to three years, the petitioner/accused did not secure him the Government job and when request made by the respondent/complainant to the petitioner/accused for return of said amount, he had issued a cheque for Rs.4,50,000/- and it came to be dishonoured. 4. Heard learned counsel for the petitioner. Inspite of service of notice, respondent/complainant remained absent and unrepresented. 5. Learned counsel for petitioner would contend that the agreement between the petitioner and respondent is void in view of Section 23 of the Indian Contract Act, 1872. He submits that illustration ‘f’ of Section 23 itself indicates that any promise to obtain an employment in public service is a void agreement as the consideration for it is unlawful. He contend that in the present case, the agreement between petitioner and respondent for consideration of Rs.4,50,000/- is to secure a Government - 4 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 job. On that point, he places reliance on the decision of co-ordinate Bench of this Court in the case of R. Parimalabai V/s Bhaskar Narasimhaiah in Crl.P.No.1387/2011 decided on 06.07.2018. He submits that there is no legally recoverable debt as cheque is issued for payment of money received under a void agreement. 6. Learned counsel for petitioner further submits that as the said agreement between the petitioner and respondent was to secure a Government job for a consideration of Rs.4,50,000/- is a void agreement and cheque issued for repayment of the amount received at the time of agreement cannot be said to be issued towards legally enforceable liability. With this, he prayed to quash the proceedings. 7. Having heard learned counsel, the Court has perused the materials placed on record. - 5 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 8. Paragraph Nos.3 and 4 of private complaint No.332/2023 filed by the respondent against the petitioner and another indicate that the petitioner in order to secure a Government job to the respondent/complainant has assured him and received Rs.4,50,000/- and as he did not secure a Government job, he had issued a cheque for Rs.4,50,000/- in favour of respondent for repayment of the said amount. Therefore, the agreement between the petitioner and respondent is to secure a Government job by the petitioner for consideration of Rs.4,50,000/-. 9. Section 23 of the Indian Contract Act, 1872 reads thus: “23. What consideration 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 - 6 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 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.’ 10. Illustration ‘f’ appended to Section 23 of the Indian Contract Act, 1872 reads thus: f) 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 11. In the present case, petitioner promised to obtain a Government job for respondent/complainant and complainant paid Rs.4,50,000/- to the petitioner/accused. Therefore, the said agreement between the petitioner and respondent is void as the consideration for it is unlawful. The co-ordinate Bench of this Court in the case of - 7 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 R. Parimalabai V/s Bhaskar Narasimhaiah (supra) has observed in paragraph Nos.20, 21 and 25 as under: 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 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 - 8 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 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. 25. Section 138 of the Negotiable Instruments Act mandates that, there should be an existence of legally recoverable debt and in order to attract Section 138 of the Negotiable Instruments Act, the party has to plead with regard to the existence of legally recoverable debt. If he pleads with regard to the existence of the legally recoverable debt u/s. 138 of the Act, then only presumption u/s.139 of the Act can be raised in favour 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, - 9 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 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. 12. This Court in a similar case, decided yesterday in the case of Santosh Ponnose S/o. George Thomas V/s Jane Pratima W/o. Chirstipher Sudheer in Crl.A.100101/2017 has observed in paragraph No.9 as under: “9. The transaction as stated by the complainant in his notice-Ex.P-3, complaint and in his examination-in-chief, is that, the complainant has given Rs.2,50,000/- in cash to the accused, as the accused promised to provide a job in a mission started by them and did not provide a job as promised. It is the further case of the complainant that, the complainant had made a complaint to the police and the police secured the accused and there was a compromise and therefore, the accused has issued Ex.P-1-cheque for Rs.2,50,000/- drawn on ICICI Bank, Ballari. Considering the same, it is clear that Ex.P-1- cheque has been issued for making payment of - 10 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 amount stated to have been given by the complainant to the accused for getting a job in the mission. Therefore, a question arises whether, the liability of the respondent/accused is a legally enforceable liability and whether cheque-Ex.P-1 is issued for making payment of legally enforceable liability, as the amount given by the complainant to the accused in a sum of Rs.2,50,000/- is in order to get a job in the mission. The said giving of money to get a job is not a legal transaction and it amounts to giving a bribe to get a job. Therefore, issuance of cheque-Ex.P-1 is not towards legally enforceable liability. High Court of Orissa at Cuttack in the case of Smt. Anupama Biswal v State of Odisha and another1 has held that, the complainant being a party to immoral transaction cannot derive the benefit of the same and prosecute the accused for the offence under Section 138 of NI Act. Even though, the trial Court has not considered the above aspect, but the trial Court has passed the impugned judgment of acquittal acquitting the respondent/accused of the offence under Section 138 of NI Act.” 1 Disposed of on 04.03.2025 - 11 - NC: 2025:KHC-D:5212 CRL.P No. 101086 of 2024 13. This Court by observing as above has confirmed the acquittal judgement for offence under Section 138 of N.I. Act. 14. As the cheque is issued for repayment of amount received under a void contract, it is not issued towards legally enforceable liability. Therefore, the proceeding against the petitioner for dishonour of the said cheque issued towards repayment of amount received under a void agreement is abuse of process of law. 15. In the result, the following: ORDER i. The petition is allowed. ii. The proceedings against the petitioner in C.C.No.221/2024 pending on the file of Principal Civil Judge and JMFC, Gokak are quashed. iii. Pending I.A’s if any stands disposed off. Sd/- (SHIVASHANKAR AMARANNAVAR) JUDGE RKM/CT-ASC, List No.: 1 Sl No.: 12