DWIJENDRA NATH MULLICK Vs. GOPIRAM GOVINDARAM

JUDGEMENT

(1.) This appeal is preferred by the defendants and the question that it raises is whether the agreement on which the suit is based was opposed to public policy

(2.) The first defendant Dwijendra was employed by the plaintiff firm, and on 3 March 1919, he was sent to the Bank to cash a cheque for Rs. 30,000. He cashed the cheque and then went to the Police with the story that the money had been stolen from him. This story was found to be untrue and he was arrested. Friends of the family went to a Solicitor Mr. Akhoy Kumar Bose, and through his efforts it was arranged that the plaintiff firm would agree to the prosecution being given up, if they received Rs. 15,000 in cash and a mortgage for a sum of Rs. 5,000. This mortgage was executed by Dwijendra and his brother Rajendra and it is the document upon which the suit is based. The plaintiffs on their side carried out the terms of the arrangement: they signed a petition to the Commissioner of Police asking that the prosecution should not be continued, and the Commissioner gave his consent. The Presidency Magistrate afterwards wrote "file" on the petition: whether he passed a formal order of discharge or not, we do not know, but I do not think it is of any importance.

(3.) None of these facts has been challenged before us, and the arguments have been confined to legal points. It is urged that the consideration of the agreement was unlawful as offending against the principle laid down in Section 23 of the Contract Act. A second argument was that the plaintiffs cannot fall back upon the debt, but that argument need not be considered because Sir Benode Chandra Mitter for the respondents said he had no intention of doing so. A third argument is that at any rate the second defendant cannot be held liable. The first argument, shortly stated, is that the agreement was one for stifling a prosecution. If that is a correct description of it, then it cannot be enforced, but the learned Judge has found to the contrary and has given his reasons for his conclusions.