Complainant Being Party To Immoral Transaction Can’t Derive Benefit & Prosecute Someone For Offence U/S 138 NI Act: Orissa High Court
The Orissa High Court allowed a Petition seeking quashing of a Criminal Complaint initiated for the alleged commission of the offence under Section 138 NI Act.
The Orissa High Court held that a Complainant being a party to the immoral transaction cannot derive the benefit of the same and prosecute someone for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
The Court held thus in a Petition filed under Section 482 of the Criminal Procedure Code, 1973 (CrPC), seeking quashing of a Criminal Complaint initiated for the alleged commission of the offence under Section 138 NI Act.
A Single Bench of Justice Sibo Sankar Mishra observed, “… the complainant being a party to the immoral transaction cannot derive the benefit of the same and prosecute the petitioner for the offence punishable under Section 138 of the N.I. Act.”
The Bench remarked that no action arises from an immoral or illegal cause and therefore, the Court will not assist a party in recovering money if debt arises from an illegal or immoral activity.
Advocate Dipti Ranjan Mohapatra appeared on behalf of the Petitioner while Additional Standing Counsel (ASC) M.K. Mohanty and Advocate Lalit Sahu appeared on behalf of the Opposite Parties.
Brief Facts
The Opposite Party No. 2 i.e., the Complainant alleged that on the basis of the assurance given by the son of the Petitioner to arrange admission of her son in a Government Medical College, she had given cash to the son of the Petitioner. Allegedly, the son of the Petitioner could not arrange the seat in the said college for the Complainant’s son, as promised by him. Resultantly, a criminal case was initiated against the Petitioner’s son for various offences. The Complainant demanded the money back from the Petitioner’s son.
To discharge the said liability, the Petitioner issued two cheques from her account in favour of the Complainant. On being presented the said cheques, the bankers of the Petitioner dishonoured the cheque. The statutory demand notice was issued by the Complainant to the Petitioner and since there was no response, a case was initiated. Therefore, the Petitioner approached the High Court, seeking quashing of the said case.
Reasoning
The High Court in the above context of the case, said, “The doctrine of in pari delicto is clearly applicable in the present case. The Court should refuse to enforce illegal debt. The complainant, being a party to the illegal transaction out of which the present dispute has arisen, cannot encash from her own guilt. He has been equal partners in the illegal conduct indulged by the son of the petitioner.”
The Court emphasised that ambitious parents indulging in the illegal methods to secure admission of their wards to a good college at the cost of meritocracy and fairness in education, is indeed a crime.
“Such actions not only deprive deserving candidates of their rightful opportunities but also foster an environment of dishonesty and corruption, ultimately harming the future of education and society at large. Parents must evolve beyond a regressive mind-set that imposes career choices upon their children, driven by unfulfilled personal aspirations”, it added.
Furthermore, the Court noted that while it is natural for parents to dream of a successful future for their children, such aspirations must be nurtured through ethical means rather than unlawful shortcuts.
“Parents must act as facilitators in their child’s educational and career journey—offering guidance and motivation while respecting their individuality. They should aid, but not dictate the decision-making process, support their child’s choices, provide them with the freedom to explore their skills and encourage them to develop and achieve through merit and perseverance. Upholding these values will not only ensure fairness in education but also foster a generation that values integrity, hard work, and self-discovery”, it observed.
The Court was of the view that the indulgence of the Complainant, who serves in the police department, in such an act that contradicts the very ethos of society is highly condemnable which not only raises questions about his own conduct but also necessitates a closer examination of the transaction in question.
“Although it is well settled that once a cheque is admitted to have been signed and issued in favour of the holder, there is a statutory presumption operates to the effect that it is issued in discharge of a legally enforceable debt or liability. This presumption being a rebuttable one, the issuer of the cheque is able to discharge the burden that it was issued for some other purpose”, it also noted.
The Court said that it is inevitable for the Petitioner to face the trial and rebut the presumption operating against her because it is admitted case on the part of the Petitioner that she indeed has issued the cheques.
“It is again well settled principle of law that while exercising the inherent jurisdiction under Section 482 Cr. P.C., the High Court should not scuttle the trial in between, particularly when the presumption operates against the accused person. The accused is to undergo a full trial and discharge his burden to prove the case otherwise”, it further reiterated.
However, the Court observed that even if the Petitioner is put to trial, the same would not result in securing conviction and therefore, subjecting her to the rigors of the trial is destined to be a futile exercise and will be the abuse of the process of the Court because the cheques were admittedly issued by her towards a debt created by her son by indulging in criminal act.
“The complainant herself is also a party to the immoral and illegal transaction made with the son of the petitioner. The principle of Ex turpi causa non oritur actio” applies to the fact of this case. … The view expressed by this Court is only regarding the prosecution initiated by the complainant under Section 138 of the N.I. Act and the same shall not be construed as if the expression of opinion regarding the other cases pending relating to the transaction between the son of the petitioner for which he is facing the trial or regarding any other offence made out against the petitioner”, it concluded.
Accordingly, the High Court allowed the Petition and quashed the case against the Petitioner.
Cause Title- Anupama Biswal v. State of Odisha & Another (Case Number: CRLMC No.3881 of 2023)
