BANU MAL Vs. RATAN DEO

JUDGEMENT

(1.) This is an application for revision under Section 25, Small Cause Courts Act, by the plaintiff whose suit has been dismissed by the lower Court. The plaintiff claimed Rs. 594 on foot of a promissory note executed by the defendant Ratan Deo and his deceased brother Sudama. The defence was that the promissory note had been executed in consideration of the plaintiff stifling a prosecution of the defendant for criminal breach of trust and that for this reason the promissory note is not enforceable. It is common ground that the defendant was in the service of the plaintiff and was alleged to have embezzled a large sum of money for which he was being prosecuted for an offence-under Section 408, I.P.C. While the criminal proceedings were pending the promissory note in suit was executed. The promissory note itself recites the fact of the pending prosecution. It also recites that a sum of Rs. 5,000 had been embezzled by the defendant but that the plaintiff had remitted the entire amount embezzled except Rs. 500 for which the promissory note was executed. The note is dated 14 September 1934. On the same date an application was presented in the criminal Court in which the case under Section 408 was pending, and it was stated in that application that the accused had been pardoned by the complainant, that a sum of Rs. 210 has been paid in cash and promissory note executed for Rs. 500 by the defendant and his brother as surety. It was prayed that the case be consigned to the record room. The application was signed by both the parties, i.e., the complainant and the accused. It does not appear what order the criminal Court passed, but it is not disputed that the criminal proceedings were dropped.

(2.) The suit which has given rise to this revision was instituted on 6 April 1936. As already stated, it is based on the promissory note and no mention is made in the plaint of the defendant having embezzled a certain sum of money part of which formed the consideration of the promissory note. The Court had therefore to decide the only issue which arose in the case, viz. whether part of the consideration for the promissory note being the withdrawal of non-compoundable criminal proceedings, the note is void. The lower Court has answered the issue in the affirmative. It is contended in revision that the consideration of the promissory note was merely the promise by the plaintiff to forego a larger part of his claim against the defendant and to accept Rs. 500 in full discharge of his liability. It is argued on the authority of certain oases that a promise to pay, what is in fact due by the defendant, is not void only because the defendant was guilty of a non- compoundable offence in relation to the money.

(3.) The essential question in a case like this is whether the consideration or object of the promissory note was an agreement to drop a pending prosecution for a non- compoundable offence. The question is one of fact and its answer must depend upon the circumstances in which the promissory note is executed. Learned advocate for the applicant has strongly relied upon the case in Ali Hussain v. Mohammad Nazir Ali in which the facts were somewhat similar; but this Court upheld the decree holding that the consideration of the bond was not the withdrawal of a pending prosecution. I find that this Court did not and could not record its own finding of fact and had to accept the facts found by the lower appellate Court which had held that the withdrawal of the prosecution was not the consideration of the mortgage deed then in suit. The case is no authority for the proposition that in every case where a civil liability coexists with the criminal liability, the bond taken in satisfaction of the civil liability is not affected by the withdrawal of a pending prosecution. It depends entirely upon the circumstances of each case as to whether the execution of the bond in satisfaction of the civil liability was partly in consideration of the withdrawal of the pending prosecution. Jai Kumar V/s. Fauri Nath (1906) 28 All. 718 was a case in which no criminal proceedings had been started and there was room for the finding that the promise not to prosecute was no part of the consideration of the bond. Dwijendra Nath Mullick V/s. Gobindram A.I.R. 1926 Cal. 59 has also been referred to. In that case it was a Police Commissioner who had the prosecution withdrawn. There was consequently no promise by the complainant to withdraw the prosecution which could be considered as part of the consideration for the bond then in suit.