How to ascertain rate of interest in case of refund of amount withdrawn at interim stage?

Interlocutory Application No.4 of 2015 was
thereafter preferred by the appellant contending that the
decretal amount was withdrawn by the respondent in December
2012 whereas the appeal was allowed in favour of the appellant
on 24.4.2015 and that the respondent had reaped the benefits of
decretal amount for more than three years. It was submitted
that the Arbitral Tribunal had awarded interest @ 12% per annum
against the appellant and that the respondent be directed to pay
interest @ 12% per annum on the amount of Rs.70,65,039/- from
the date of withdrawal till the date of actual payment.
In the fitness of things, the appellant is
certainly entitled to interest at the same rate on the amount
which was enjoyed by the respondent. The entitlement of the
respondent to this amount stood negated by judgment and order
dated 24.04.2015 and as such the respondent must pay back the
amount with interest at the same rate.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. Nos. 4 & 5
IN
CIVIL APPEAL NO. 6158 OF 2013
NATIONAL HIGHWAYS AUTHORITY OF INDIA.
V
M/S NCC- KNR (JV).
Dated:January 19, 2016.
Citation:(2016) 13 SCC329

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Whether prosecution for dishonour of cheque is maintainable if cheque was issued for refund of money taken for securing Job in private company?

There is no dispute regarding the fact that the respondent No. 1-accused was working in the said Company. The case of the complainant is that accused informed that there was a post of Branch Manager in the company and he could manage the same for the complainant with the help of Company Manager, for which complainant would have to incur expenses. The complainant had given consent and paid amount of Rs. 1,00,000/- to the accused in presence of the witnesses as mentioned.

Similarly another Rs.25,000/- was paid. According to the complainant, accused told him that the amount has been paid to Mr. Kulkarnisaheb of the Company at Mumbai and to Vikrant Darak Officer at Pune and assured the complainant that he will get order within few days. According to the complainant, accused asked for further amounts, which were paid and thus total amount of Rs. 1,45,000/- was given to the accused. Subsequently, accused denied that he will secure the job. Thus complainant demanded money back. Then, cheque was issued by accused which, however bounced and then prosecution under section 138 of the Negotiable Instruments Act was filed.

6. The trial court invoked Section 23 of the Contract Act and relied on illustration (f) and has acquitted respondent No. 1-accused.

7. I have gone through the judgment in the matter Fancis Mathew Vs. State of Kerla (supra), relied on by the learned counsel for the appellant. In similar set of facts, the Kerla High Court has observed that accused cannot be permitted to be benefited by retaining the amount which was received unlawfully and illegally. However, I am  unable to agree that in a transaction in which parties are indulging in unlawful and illegal activity the machinery of the court can be used for recovery of such money, which is clearly against public policy.

8. Illustration (f) of section 23 of the Contract Act refers to "public service". It is only an illustration which is required to be referred for guidance to interpret the main Section.

Section 23 reads as under:

"23. What considerations 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 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."

(Emphasis supplied) . Illustration (f) reads as under:-

"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."

9. It cannot be said that when such act is unlawful in public service it would be lawful in private sector. Such acts are not in interest of society. No employer would appoint a person whom he will give salary if he is not competent. His Subordinates cannot indulge in such acts at the costs of the Employer. It is trite to suggest that a Manager who without letting Company know makes money while making appointments does not indulge in unlawful act. This cannot be in interest of public life in society. It would be against public policy.

 Bombay High Court

Suhas Bhanudasrao Jadhav vs Sachin Murlidhar Tarkase And ... on 22 January, 2015

Bench: A.I.S. Cheema

Citation; 2015 (3) Crimes 590 Bom

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