P L D 1961 Dacca 518 (PLP)

CHOWDHRY, J.

‑This appeal is by the plaintiff in a suit for recovery of Rs. 3,760 on the basis of a mortgage bond dated 10‑10‑52.

2. Plaintiff's case is that the defendants took loan of Rs. 4,200 from him on the basis of four hand‑notes. But in the absence of the plaintiff the defendants fraudulently took away these four hand‑notes from the plaintiff's wife. When the plaintiff demanded return of these hand‑notes, they returned them after inserting false endorsement on the back‑of these hand‑notes, Thereafter Salis‑Darbar were held about the incident and by means of amicable settlement the plaintiff gave up Rs. 1,200 out of the principal money and the defendants executed the disputed mortgage bond for a sum of Rs. 3,000 in favour of the plaintiff with a stipulation to pay interest at the rate of Rs. 1‑9 per cent per mensem. The plaintiff filed the suit claiming Rs. 3,000 as principal and Rs. 760 as interest at the rate of Rs. 8 per cent Per annum. Lt is also the case of the plaintiff that after execution of the mortgage bond he delivered the hand‑notes to the defendants.

3. The suit was contested by defendants' Nos. 1 and 3 and 2 and 4 by filing separate written statements. Defendants Nos. 1 3 and 4 denied the entire story of the plaintiff, of taking of any loan and contended, inter alia that they came to know of the defendant No. 2's taking of some loan from the plaintiff that at the instance of the plaintiff his wife lodged a criminal case against them and others under non‑compoundable sections of the Penal Code on the allegation that the accused took away the hand‑notes fraudulently from her ; that during the pendency of the criminal case at the inquiry stage the defendants Nos. 1, 3 and 4 under the threat of the criminal case and further oppression, probable imprisonment was obliged to execute the alleged mort gage bond without any consideration ; and that thereafter the criminal case was compromised and' the plaintiff delivered these hand‑notes to defendant No. 2 who is in possession‑ of them now. So they contend that the mortgage bond was void and inoperative.

4. Defendant No. 2 admitted that the plaintiff used to advance money occasionally to this defendant for carrying on his business in fish and he used to pay profit to the plaintiff ; that the said advance used to be made by hand‑notes and refund of the loan used to be endorsed occasionally on the hand‑notes ; and that the plaintiff on the plea of his ignorance of Bengali used to get the endorsement written by others. His further case is that he also refunded money without endorsement and contended that he paid up the entire debts due on account of the hand‑notes before the alleged hand‑notes were delivered yet the plaintiff through his wife lodged the alleged criminal case on false allega tions against him and his relatives and oppressed them through the help of the police and threatened them with further oppressions and imprisonment in the criminal case ; and the plaintiff under the threat of this criminal case secured the alleged mortgage bond fraudulently. This defendant denied that any amount was due to the plaintiff from him on account of hand notes and asserted that the disputed mortgage bond is void and inoperative. He also denied that he ever took any hand‑note fraudulently from the plaintiff's wife.

5. Both the Courts below found that the four hand‑notes are genuine so far as defendant No. 2 is concerned and the endorse ments on the back of this pro‑note were false and fraudulent; that, defendant No. 2 got it written by D. W. 7 Badyanath in one sitting and that the other defendants Nos. 1, 3 and 4 never took money on those pro‑notes from the plaintiff, but that the plaintiff finding that defendant No. 2 is not a man of substance and there is no possibility of the entire money being realised from him, impleaded them in the criminal case and got the mortgage bond executed by them, i.e., defendants 1, 3 and 4, along with defendant No.

2. So far as defendant No. 2 is concerned both the Courts below found that though Rs. 4,200 were due to the plaintiff from defendant No. 2 on the basis of those pro‑notes, he was made to execute the mortgage bond under the threat of the criminal case filed by the plaintiff's wife against the defendants. Both the Courts below further held that execution of the mortgage bond is hit by section 23 of the Contract Act. The trial Court at page 10 of the paper book observed "From the facts and circumstances it is quite evident, there fore, that stifling of criminal prosecution is a part of the consideration in Exh.

1. This is in fact a trade in felony and to clearly goes against public policy. The plaintiff may have some real dues from defendant 2 but he cannot have recourse to the above tactics to force defendants 1, 3 and 4 to bind themselves jointly with defendant 2 for the sole liability of defendant

2. The plaintiff, therefore, cannot be allowed to reap his advantage on the force of Exh. 1 . . . . The facts and circumstances, therefore, lead us to believe that the alleged mortgage bond, Exh. 1 is void and inopera tive in view of the provision of section 23 of the Contract Act."

6. This view of the learned Munsif was accepted as correct view by the learned Subordinate Judge in the Court of appeal below. Hence this appeal by the plaintiff.

7. It is contended by Mr. Islam on behalf of the appellant that the Courts below are absolutely wrong in holding that the mortgage bond Exh. 1 is hit by section 23 of the Contract Act and as such it is void and inoperative inspite of the findings of both the Courts below that Rs. 4,200 was due to the plaintiff on account of the pro‑notes which are genuine and that the endorsements on the back of those pro‑notes were false and fraudulent as they were written by defendant No. 2 in collusion with D. W. 7 Badyanath.

8. So far as defendants Nos. 1, 3 and 4 are concerned, this contention of the learned Advocate for the appellants has got no substance in view of the finding that they never took any loan on the basis of those pro‑notes from the plaintiff and no money was due to the plaintiff from these defendants on account of those pro‑notes, but they were made to execute the mortgage bond Exh. 1 and were falsely impleaded in the criminal case brought by the wife of the plaintiff and they were forced to execute the mortgage bond along with their brother and relation, defendant No. 2 and the criminal case as against them was dismissed for non‑prosecution subsequently. So far as these defendants are concerned, there is no doubt that the mortgage bond is hit by the provision of section 23 of the Contract Act and we entirely agree with the Courts below on this point.

9. So far as defendant No. 2 is concerned, the case stands on a different footing inasmuch as both the Courts below found that Rs. 4,800 was due to the plaintiff from defendant No. 2 on the basis of the four pro‑notes and that the endorsements on the back of the pro‑notes were brought about fraudulently by defendant No. 2 in collusion which D. W. 7 Badyanath, it is no doubt true that a criminal case was filed against the defend ant No. 2 also on the allegation that he took away the pro‑notes from the wife of the plaintiff on a false representation but he was not given them back to the plaintiff and caused a false endorsement written on the back of those pro‑notes, showing payment of the loan due on account of these pro‑notes and he was made to execute the mortgage bond to off‑set those false endorsements under threat of the criminal case. Question is how far these circumstances will bring the case within section 23 of the Contract Act.

10. It is contended on behalf of the respondents that the bond Exh. 1 is void as the consideration or the object of the agreement is opposed to public policy and that in effect it is an agreement to stifle a criminal prosecution. The general heading of public policy covers a wide field of subject and the doctrine must always be applied with caution. At the same time, this doctrine may be legitimately invoked if the real object of the agreement is to interfere with the course of justice. Stifling of prosecution is distinguishable froth the lawful compounding of a compoundable offence. If the offence is not compoundable, com pounding of it must be held to be illegal and opposed to public policy. On the other hand, there is nothing to prevent a creditor from taking a security from his debtor for the payment of a debt due to him, even if the debtor is induced tot give the security by a threat of criminal case, so long as there is no agreement not to prosecute. In the present case, it is nowhere made out in any of the Courts below that non‑prosecution of the criminal case under sections 420, 365 and 120‑B of the Pakistan Penal Code was the consideration or the object of the bond. What is stated in the defence of defendant No. 2 is that he had to execute the mortgage bond under threat of the criminal case. It is provided in the bond, as quoted on the judgment of the trial Court, as follows : the substance of which can be translated thus "We, the executants owe Rs. 4,200 to yon, the recipient of the bond, on the basis of four hand‑notes of the date men tioned therein and there is trouble and litigation on account of that and as such on the advice of the well‑wisher and head men we after getting remission of Rs. 1,200 the balance of Rs. 3,000 is now settled to be your dues." In the evidence also, what has been tried to be established is that defendant No. 2 would not have executed the mortgage bond if he was not put under threat of criminal case. Nowhere we found that non‑prosecution of the criminal case or the compro mise in the criminal case forms either consideration or the object of the execution of the bond though after execution of the bond the criminal case was not proceed ed with. The order‑sheet of the criminal case shows that the plaintiff did not appear on the date fixed for hearing of the case and the case was dismissed under section 203 of the Criminal Procedure Code. It appears that in the criminal case the wife of the plaintiff, though a complainant, was really a witness and she had nothing to do with the case except adducing evidence. Be that as it may either from the recital of the bond or from the evidence led in the case, the defendants never been tried to make out a case that non‑prosecution of stifling of the prosecu tion case was the consideration or object of the bond. The execution of the bond may be a motive for non‑prosecution of the criminal case. It may be true that defendant No: 2 would not, have executed the mortgage bond if the criminal case against him was not proceeded with ; but that, was not the consideration) or object of the agreement. The motive for execution of the) bond may be withdrawal or, non‑prosecution of the criminal case, but there is a good deal of difference between the motive for the said consideration or object of the agreement. It is absolutely necessary to keep this distinction in view and it is all the more necessary in a case where there is civil liability already existing which is discharged or remitted by the agreement. In the case of Dwijendra Nath Mullick and another v. Gopiram Gobindaram (29 C W N 855, 860) where Mukerji, J., observed Even if all the principles of English Common Law relating to agreements for stifling prosecution be held to be applicable to all kinds of non‑compoundable offences in this country ..then if the principle of the doctrine be that you shall not make a trade of felony' per Lord Westburry in, Williams v. Bayley (1866) L R I H L 200, 220 then it is difficult to see how the plaintiffs can be said to have acted improperly in entering into the arrangement to get what they were justly entitled, to or rather much less than what they were so entitled, when they, brought the whole matter to the notice of the authorities responsible for the conduct of the prosecution and left it to them t decide whether they should proceed or not. My learned brother does not find anything culpable o‑r wrong in the conduct on the part of the plaintiffs and what they did does not also offend against my sense of, fairness and propriety. Illustra tion (H) though not exhaustive, but only illustrative of the section, gives only a very gross and extreme instance

11. In view of the facts and circumstances of the present case and in view of the findings arrived at and the evidence led in the case that defendant No. 2 was made to execute the bond for the money really due by him to, the plaintiff under threat of the criminal case, we are unable to hold that non‑prosecution or stifling of the criminal prosecution forms a consideration or object of the bond Exh. I though it forms a motive for execu tion of the bond. In reported case mentioned above the brother of the accused was also made to execute a security bond for Rs. 5,000 and it was held that, that was also a consideration for him to execute the bond. But that principle does not apply to the present case, because the brother of the executant in that case was not an accused in the criminal case, whereas in the present case defendants 1, 3 and 4 were impleaded as accused and they were made to execute the bond and that cannot but be for consideration of the criminal case and it forms an object of the bond. But that consideration does not apply to the case of defendant No. 2 as the case made out by him and the evidence led in the case is that he had to execute the bond under threat of criminal case, and according to both the Courts below, for the money really due from him and we have already expressed that there is nothing to prevent a creditor from taking a security from the debtor for the payment of debt even if the debtor is induced to give security under threat of criminal case, so long as there is no agreement not to prosecute.

12. In the above view of the matter, we dismiss the appeal against defendants Nos. 1, 3 and 4, respondents without any cost, but we allow the appeal against defendant No. 2 respondent with costs and set aside the judgments and decrees of the Courts below so far as defendant No. 2 is concerned and we decree the suit against him with costs. SIDDIKY, J.‑I agree. K. B. A. Appeal partly dismissed.