R. Several vs Loganthan

Pratap Singh, J.—The accused in C. C. No. 89 of 1991 on the file of the Chief Judicial Magistrate, Krishnagiri, has filed this petition u/s 482

of the Code of Criminal Procedure, 1973, to call for the records in the said case and to quash the same.

The short facts are : The respondent has filed a complaint u/s 138 of the Negotiable Instruments Act, 1881, which I shall hereafter refer to as

the Act"". The allegations in the complaint are as follows : The complainant paid a sum of Rs. 50,000 by way of demand draft dated June 11,

1990, drawn in favour of the accused. The accused had received the same and encashed it. The complainant again paid a sum of Rs. 20,000 in

cash through one N. Meenakshi Sundaram to the accused. Both the amounts totalling Rs. 70,000 were paid to the accused on the representation

made by the accused to the complainant that the said sum of Rs. 70,000 has to be paid as capitation fee for securing admission of the

complainant''s son to the M. B. A. course in Annamalai University. The complainant bona fide and in good faith believed the said representation

and parted with the amounts. As the accused could not secure admission to the complainant''s son, the accused sent a cheque for Rs. 70,000 in

lieu of the amount received by the accused from the complainant. The said cheque was dated March 30, 1991. When the complainant presented

the same for collection, it was returned on April 15, 1991, as unpaid and with the endorsement ""refer to drawer"". The cheque was dishonoured, as

the accused had no funds to his credit. The complainant issued a registered notice on April 22, 1991, calling upon him to pay the cheque amount.

The accused had received the notice on April 23, 1991. But, he had not chosen to pay the amount. Hence, the complaint. To quash the said

complaint, the petitioner has filed this petition.

Mr. M. Kandasami, learned counsel for the petitioner, would submit that to make out an offence u/s 138 of the Act, the cheque must have been

issued for a legally enforceable debt or liability and in the instant case, it was not so and hence, the complaint is liable to be quashed. I have heard

Ms. N. S. Nappinnai on the abovesaid submission.

I have carefully considered the submissions made by counsel on either side. According to learned counsel for the petitioner, the payment of Rs.

70,000 by the complainant to the accused was against public policy and, therefore, it cannot be enforced against the accused. He would add that

the debt of Rs. 70,000 is not a legally enforceable debt or liability since it is against public policy and it is hit by section 23 of the Indian Contract

Act. To consider the said submission, the relevant allegations in the complaint need be referred to. In paragraph III of the complaint, it is stated as

follows :

The complainant paid a sum of Rs. 50,000 (rupees fifty thousand only) by way of demand draft, dated June 11, 1990, drawn in favour of the

accused, issued by the Thimmapuram Indian Overseas Bank payable at Indian Overseas Bank at Madras and the accused after receipt of the

above demand draft had the same encashed.

In paragraph IV, it is alleged that the complainant again paid a sum of Rs. 20,000 in cash through one N. Meenakshi Sundaram. It is further

stated as follows :

Both the above sums totalling Rs. 70,000 (seventy thousand only) were paid to the accused on the representation made by him to the complainant

that the above sum of Rs. 70,000 has to be paid as capitation fees for securing admission to the complainant''s son in the M. B. A. course at

Annamalai University and the complainant bona fide and in good faith believed the above representations and parted with the above sums.

In paragraph V of the complaint, it is alleged that as the accused could not secure the admission to the complainant''s son as promised by him,

the accused sent a cheque for a sum of Rs. 70,000 dated March 30, 1991, in lieu of the amount received by him.

For the purpose of convenience, section 23 of the Indian Contract Act needs extraction. It reads as follows :

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.

Mr. M. Kandasamy, learned counsel for the petitioner, would draw my attention to illustration (f) u/s 23 of the Indian Contract Act. Illustration

(f) reads as follows :

A promises to obtain for B an employment in the public service, and B promises to pay Rs. 1,000 to A. The agreement is void, as the

consideration for it is unlawful.

Section 23 of the Indian contract Act would come into play, only in cases mentioned in section 23. This is not a case like that. Here, the

accused received the money from the complainant for securing admission to the complainant''s son in M. B. A. course and on the representation

that the sum of Rs. 70,000 has to be paid as ""capitation fee"" for securing admission. The amount was given for the specific purpose, namely, for

payment of capitation fee. While so, I am unable to accept the submission made by learned counsel for the petitioner that the payment is made

against public policy.

Mr. M. Kandasamy, learned counsel, would rely upon the decision in Rattan Chand Hira Chand Vs. Askar Nawaz Jung (Dead) by Lrs and

Others, , wherein it was held that a contract between ""A"" and ""B"" for wielding influence with Government authorities by ""A"" to secure a decision in

favour of ""B"", is opposed to public policy. In the said case, the contract was for wielding influence with the Government authorities by ""A"" to

secure a decision in favour of ""B"" and, therefore, it was held that the contract was against public policy and hence, unlawful and void. The case

before me is totally different. Hence, it is not as if the amount was paid to get a decision by wielding influence with the Government authorities. In

the present case, the amount was paid on the specific representation that it was meant for ""capitation fee"". The above decision is not applicable to

the facts of this case. Since the only submission made by learned counsel for the petitioner cannot be accepted, the inevitable result is that the

petition has to be dismissed.

Accordingly, the petition is dismissed.