1. I have heard counsel for the petitioner and learned counsel for the respondent.
2. The argument of the learned counsel for the petitioner is that in view of the Explanation in section 138 of the Negotiable Instrument Act only a debt or liability which is legally enforceable can form a subject matter of the dishonour of a cheque. He submits that in this case, the money for which cheque was issued was alleged to have been paid for procuring a job in the police department and therefore, this money which had been paid to the accused was not legally recoverable. The argument in more precise terms means that the agreement under which money was paid was void because its object was not lawful’vide section 10 and 23 of The Indian Contract Act, 1872.
3. The argument overlooks that under section 65 of the Indian Contract Act, when an agreement is discovered to be void or a contract becomes void, any person which has received any advantage under the such an agreement or contract is bound to restore it or to make compensation for it to the person from who he received it. Thus, while the agreement being void may not have been enforceable, but the money which had been paid to the accused under the agreement was legally recoverable.
4. There is yet another factor which goes against the accused-applicant. The inherent powers of this Court, saved under section 482 Cr.P.C., are discretionary. In my opinion such discretion should not be exercised in favourof such a defence set up by an accused who as indulged in this kind of activity.
5. Therefore, this petition is dismissed.