1. This is an appeal by the defendants and arises out of a suit for sale in enforcement of a mortgage, dated 18th March 1922, executed by Ali Husain, Waris Husain and Muhammad Husain for Rs. 1,500 in favour of Syed Nasir Ali Khan Bahadur Zulqadar.
2. Ali Husain Khan, who was a treasurer and in the employ of the plaintiff, appears to have misappropriated a sum of Rs. 2,209-12-5 belonging to the plaintiff. The latter dispensed with his services and instituted a criminal complaint against him on the charge of breach of trust. During the pendency of the said complaint the bond in suit was executed for a sum of Rupees 1,500 without interest, the plaintiff having forgone his claim as regards Rs. 709-12-5.
3. The suit was contested on the ground that the bond was executed in consideration of an agreement to compound the criminal case and offended against the provisions of Section 23, Contract Act.
4. The Court of first instance gave effect to this plea and dismissed the suit. The lower appellate Court, upon a consideration of the entire evidence, came to the conclusion that:
the withdrawal of the prosecution was not the Consideration for the agreement and therefore the agreement has not been rendered void by virtue of Section 23, Contract Act.
5. Where a person in a position of trust embezzles sums of money belonging to his master he exposes himself to the risk of criminal prosecution, but he also remains under a civil liability to his master. The amount embezzled is a debt which he is responsible to pay. Where a man to whom a civil debt is due takes security for that amount from his debtor, even though the debt arises out of a criminal offence, the agreement to pay the amount is enforceable in law and is not obnoxious to the provisions Section 23, Contract Act: see Kessowji Tulsidas v. Hurjiwan Mulji  11 Bom. 566. We are clearly of opinion that the decree passed by the lower appellate Court is good in law and ought not to be interfere with in second appeal. We dismiss this appeal with costs, including in this Court-fees on the higher scale.