Md. Faizal Khan @ Faizal Khan vs State of Jharkhand and Another

R.R. Prasad, J.—This application has been filed for quashing of the order dated 18.9.2008 passed by the then Judicial Magistrate, 1st Class, Dhanbad in C.P. case No. 769 of 2008 whereby and whereunder the Court has taken cognizance of the offence punishable u/s 138 of the Negotiable Instrument Act against the petitioner. The facts giving rise to this application are that the complainant, Surendra Prasad @ Surendra Prasad Sinha lodged a complaint case bearing No. 769 of 2008 alleging therein that one Pramod Pandey, who used to taught his son came with one Faizal Khan (petitioner) who introduced himself to be an officer of the I.B. and also told that he can arrange a job for his son provided a sum of Rs. 1,00,000/- is paid. Since Faizal Khan had come with Pramod Pandey, known to him, he by believing the version of Faizal Khan agreed to make payment. After some days, a sum of Rs. 64,000/-was paid to Faizal Khan. On receiving such amount, one letter relating to training at J.A. Housing Development Pvt. Ltd. was handed over to his son. Thereupon amounts were paid on different dates. Again another letter relating to training was given but the petitioner was neither imparted with the training nor was offered job and therefore, the complainant became suspicious and insisted upon Faizal Khan to return the money, upon which a cheque of Rs. 35,000/- was given which on its deposit got bounced, information of which when was given to the complainant, he became quite furious and even extended threat of dire consequences. Thereupon, when notice was given but payment was not made, the complaint was lodged. On holding enquiry, cognizance was taken by the impugned order which is under challenge.

The sole point which has been raised in this application is that cheque has never been drawn in respect of debt or liability, rather it was given upon a breach of a contract which had been illegally made and as such, it is never enforceable and when the contract under which cheque was given is never enforceable, complaint case u/s 138 of the Negotiable Instrument Act cannot be maintained.

Learned counsel in support of his submission has referred to a decision rendered in a case of A.V. Murthy Vs. B.S. Nagabasavanna, .

No doubt it is true that u/s 10 of the Contract Act, an agreement is enforceable only if it is made for a lawful consideration and with lawful object. The provision as contained in Section 23 does stipulate that what kind of considerations and objects are not lawful. Illustrations have been given to show when consideration or object can be said to be unlawful. One of such illustrations has been given in Clause (i) which reads as follows :

A promises to obtain for B an employment in the public service and B promises to pay Rs. 100/ to A, the agreement is void as the consideration for it is unlawful.

That illustration is with respect to employment in the public service whereas in the instant case, facts are not as such which can be gathered at this stage to say that as to whether promise was made to give employment in public service or in private service. In absence of such factual fact, it would not be proper and appropriate at this stage to hold that the contract is enforceable or not. The view which has been expressed by the Hon''ble Court in a case referred to above is the same that if the contract is not enforceable, application u/s 138 of the Negotiable Instrument Act cannot be maintained. Thus, impugned order never warrants to be interfered with at this stage. However, the petitioner would be at liberty to raise all these points which have been raised in this application at an appropriate stage, Thus, this application is dismissed.