Dave, J. - (1.) THIS is a second appeal by the defendant against the judgment and decree of the learned District Judge, Jaipur District, dated the 18th November, 1952.
(2.) THE facts giving rise to it are that on the 15th of July, 1949, plaintiff-respondent Vinay Sing filed a claim for Rs. 600/- in the court of the Civil Judge Sambher. It was averred by him that on the night between 14th and 15th June, 1949, his camel was stolen away. Later on, he came to know that it was seen in possession of the defendant. THE plaintiff asked the defendant to return the camel. For some time he kept on making false excuses and led the plaintiff to believe that he would return the camel in a few days, since it was taken away by his brother Ranjeeta. Ultimately, on Mah Sud 4th, S. 2005 (correspo-ding to 2nd Feb. , 1949) the defendant executed a document in the plaintiff's favour to the effect that either he would return the camel to him or pay him Rs. 600/- for its price. THE plaintiff proceeded to say that the defendant had failed to keep his promise in terms of the said agreement. He neither returned the camel, nor paid its price. It was, therefore, prayed that a decree for Rs. 600/- with costs be given against the defendant. The defendant contested the suit and denied the execution of the document on which the suit was founded. It was mentioned in the additional pleas that the plaintiff had told the defendant that his camel was lost and that he should help him in finding it out. At the plaintiff's request, the defendant tried to help him. He went in search of the camel and found that the trace of its foot-steps ended at the Dhani of one Bakhtawar Singh. The defendant informed the plaintiff about this fact but the plaintiff told him that he will have to return the camel to him. Thereafter,the plaintiff got a criminal complaint instituted against the defendant through a Mahajan, although the defendant was in no way responsible for the theft of that animal. The defendant denied his liability to pay anything to the plaintiff. The trial court framed two issues as follows - (1) Whether the defendant had executed Ex. P. 1 on the 2nd of February, 1949 in favour of the plaintiff? (2) Relief? After recording evidence of both the parties the trial court decided both the issues in the Plaintiff's, favour and decreed the claim in full for Rs. 600/- on 31st October 1949 Aggrieved by this decision the defendant preferred an appeal which was heard by the District Judge, Jaipur. During the course of arguments in that appeal it was urged by the plaintiff that the suit was not maintainable on the basis of Ex. 1, since the contract between the parties, if any, was to stifle the prosecution and, therefore, it was void under sec. 23 of the Indian Contract Act. He also presented an application for amending the written statement. The appellate court allowed the amendment to be made on pay-ment of Rs. 50/- as costs to the plaintiff and the case was remanded to the trial court Thereafter, the trial court framed two more issues which are as follows - (3) Whether the document in dispute (Ex. 1) may be said to be an agreement to stifle the prosecution and a suit is, therefore, not maintainable on the basis of such agreement? (4) Whether Ex. 11 in dispute is void for want of consideration? The defendant proceeded to argue the case in the trial court without adducing any evidence on these issues. The trial court did not allow the plaintiff to produce any evidence After hearing both the parties, the trial court decided both the new issues against the plaintiff and dismissed the suit on the 30th of April,1951. Against this decision the plaintiff went in appeal to the court of the District Judge, Jaipur Distt. The learned Judge remanded the case directing the trial court to give an opportunity to the plaintiff to produce his evidence on fresh issues and then send the case back with its report The plaintiff accordingly produced oral evidence. It may be mentioned here that this time the presiding officer of the that court had changed. He gave his findings against the defendant and sent the report to the District Judge. The learned Judge agreed with the opinion of the trial court and decreed the suit as mentioned above. Learned counsel for the appellant has urged that the appellate court has given no finding on issue No. 4 and that it has decreed the suit only on the basis of issue No 3 It is further urged that even in deciding issue No. 3 the appellate court has taken erroneous view of law and that it has not appreciated that the agreement between the parties had no other object in view except to stifle the prosecution, that the agreement was thus clearly unlawful. It is therefore, prayed that the decree of the appellate court should be set aside and that of the trial court dated 30. 4. 51 should be restored. Learned counsel for the respondent has urged with equal vehemence that the appellate court has not committed any error, that the appellant was under a civil liability either to return the carnal to the respondent or to pay him the price thereof according to his contract, that there is nothing in Ex. P. 1 to indicate that it was executed in order to stifle the prosecution and therefore the appeal should be dismissed. I have given careful consideration to the arguments advanced by learned counsel for both the parties and before I proceed to examine these arguments,it may be observed that both the parties in this case have suppressed the true facts at one stage or the other. In the plaint, the plaintiff-respondent had made a clear allegation that his camel was stolen away. In the statement which he had given in trial court for the first time he had again mentioned that his camel was stolen away on Posh Sudi Poonam and that he had come to know that it was seen in the possession of the defendant. When the case was remanded after frammg issues No. 3 and 4 when he was examined for the second time he changed his stand which he had taken earlier and stated that he did not know whether his camel was stolen away or not. It is obvious that the plaintiff has thus changed his statement in order to show that no criminal offence was committed in respect of the animal, that he never intended to lodge criminal proceedings against the defendant and therefore the question of stifling the prosecution could not arise. Similarly, the defendant wrongly denied the execution of Ex. P. 1 and in his anxiety to stick to that statement he went on to say that no undue influence was brought on him while executing that document. Thus, although the parties have not come out honestly with the true version of the story, it clearly appears from their pleadings and statements that the plaintiff's camel had been stolen away, that he was under the impression that the defendant was either responsible for the theft of that he was the receiver of that stolen property, since according to his information the property was seen in the possession of the defendant and when he could not recover that property from defendant he somehow managed to Ex. P. 1 executed by him. The question which arises for determination is whether consideration of the agreement between the parties is lawful. According to learned counsel for the appellant, Ex. P. 1 was got executed for stifling the prosecution of the defendant and in this connection he has referred to the statement of P. W. 5 Dalu Singh. Dalu Singh who appeared as plaintiff's witness has stated that before executing the document Ex. P. 1 the defendant had stated that he would bring the animal which was taken away by his brother within 4 days and that no report about this occurrence should be made. In view of this statement and the surrounding circumstances I agree with appellant's learned counsel that the defendant had executed Ex. P. 1 on an assurance from the plaintiff that no criminal proceedings would be launched against him and for that reason the defendant agreed on his part either to restore the animal or its value. Sec. 23 of the defendant Act lays down that the consideration or object of an agreement is law full, unless it is forbidden by law; or is of such a nature that, if permitted it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. An unlawful object of an agreement is explained in illustration (h) to the said section ' which is as follows: " (h) A promises to B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void as its object is unlawful. " It is quite clear from the language of the section and the illustration referred above that if object of the agreement between the parties is to stifle criminal prosecution against the provisions of the consideration is unlawful and the agreement is void. The facts of the present case are very much similar to those given in illustration (h) except that in the case it was to be instituted. It may be pointed out here that if the defendant had committed an offence of theft, then is was not a compoundable offence because the value of the property was more that Rs. 250/ -. In the alternative if he had committed an offence under sec. 411 I. P. C. , then too it was not compoundable if plaintiff compounded that offence with the defendant in lieu of the defendant's promise to give him Rs. 600/-on his failure to restore the animal, it was clearly against the provisions of law. In the case of Kamini Kumar Basu vs. Birendra Nath Basu (1) is was observed by their Lordships as follows: - "if it was an implied term of the reference or the ekrarnama that the complaint would not be further proceeded with, then in their Lord ships' opinion the consideration of the reference or the ekrarnama as the case may be, is unlawful: see Jones vs. Merionethsire Permanent Benefit Building Society (1892, 1 Ch. 173) and the award or the ekrarnama was invalid, quite irrespective of the fact whether any prosecution in law had been started. ' Their Lordship further proceeded to observe that - "in a case of this description it is unlikely that it would be expressly stated in the ekrarnama that a part of its consideration was an agreement to settle the criminal proceedings. It is enough for the defendants to give evidence from which the inference necessarily arises that part of the consideration is unlawful" It appears from the finding of the learned Civil Judge, Sambhar which has been accepted by the learned District Judge that he was aware of the position that unlawful agreement are seldom set out on paper and more often, they are implied ones, and still it seems that he laid too much stress on the fact that it was not mentioned in Ex. P. 1 that its consideration was to stifle the prosecution. A mere perusal of the plaint and the statement of the plaintiff, if it were done carefully,should have shown to the learned Judge that the plaintiff did come to the court with the specific assertion that his camel was stolen away and that the stolen property was seen in the possession of the defendant. There is thus no doubt about the fact that the defendant had executed Ex. P1 only to compromise a non-compoundable offence which was alleged against him. It may be pointed out that even before the decision in Kamini Kumar Basu's case (1) it was held in the case of Nazar vs. Mst. Paras (2) that - "when an offence is non-compoundable but is compounded, the complainant cannot recover by civil action anything that the accused has undertaken to pay. " After the decision of their Lordships of the Privy Council in Kamini Kumar Bosh's case (1) the same view has been taken by several courts in a number of cases. In the case of Sudhindra Kumar Rai Chaudhari vs. Ganesh Chandra Ganguli (3) it was observed that - It is against Public policy to make a trade of felony or attempt to secure benefit by stifling a prosecution or compounding an offence which is not compoundable in law. The principle is that no court of law can countenance or give effect to an agreement which attempts to take the administration of law out of the hands of the Judges and put it in the hands of the private individuals. In the case of Kuchibhotla Venkatasubba Rao vs. Chandanmal (4) it was observed a follows - "sec. 345, Criminal P. C. states what offences are compoundable. Some of them are compoundable without the leave of the court and the others can only be compounded with the sanction of the court. The offences which are not mentioned in the section cannot be compounded under any circumstances. . . 1. Sec. 345 Cr. P. C. expressly prohibits the compounding of the offence of cheating without the leave of the court Notwithstanding that no prosecution is launched the offence remains. What defendants 2 and 3 did was to execute a negotiable instrument in consideration of the payee undertaking not to prosecute a person who had committed a criminal offence which could not be compounded without the court's sanction. The consideration for the note so far as defendants 2 and 3 were concerned was manifestly unlawful and therefore promissory note cannot be enforced against them. Similar view was expressed in the case of Jagannath vs. Kashiram Gokul (5 ). Learned counsel for the respondent relies on the decision in case of London and Lancashire Insurance Co. , Ltd. , vs. Binoy Krishna Mitra (6 ). He has pointedly drawn attention of this Court to the following analysis in that case which the learned Judges had made after referring to a number of authorities; "1 (a) that the defence that the consent was caused by threat of prosecution should be kept distinct from the other defence that the promise was given because it was agreed that there would be no criminal prosecution, the first relates to the method of procurement of the contract; the second relates to the substance or purpose of the contract; (b) (i) consent caused by (threat will, at the worst,mean consent caused by coercion or undue influence - the contract will only be voidable, (ii) consent given because of the agreement not to prosecute will render the resulting contract void; (2) that in order to amount to a defence on the ground of illegality attached to the substance or purpose of the contract there must be an agreement to stifle prosecution; (3) that such an agreement may either be express or implied: but from its very nature such an agreement is seldom set out on paper; (4) that whether or not there was such an agreement is always a question of fact to be determined by the court; (5) (a) that when the agreement set up is an implied one to be inferred from the circumstances, such circumstances ought to be shown leading to the irresistible inference that such a contract was in fact made; (b) that in weighing the circumstances in cases where that act involves both a criminal offence and a tortuous liability it should be remembered (i) that the injured is entitled to a reparation; (ii) that reparation is a duty which the offender owes quite independently of his fear of prosecution, (iii) that reparation may legitimately and reasonably affect the mind of the person wronged, (b) that law encourages reparation, law certainly is not anxious to discourage reparation, (v) that where there is a debt actually due, the creditor may legitimately make use of threats of prosecution in order to induce the offender to give security for the debt. " I respectfully agree with the analysis which has been set out above, but in my opinion it does not help the respondent in the present case. In the same case it was observed by their Lordships that - "the question whether or not there was an agreement to stifle prosecution of any particular case, will always be a question of fact. Remembering that such an agreement will seldom be set out on paper and perhaps will more often than not be only an implied one, the court will always have a difficult test in arriving at a decision on the point. The difficulty is further enhanced by the recognition accorded to two conflicting interests, viz. , (i) the individual interest of the injured and (ii) the interest of society. No hard and fast rule can be conceived of in this respect and perhaps it is not yet possible to lay down any canon of valuing these conflicting and overlapping interests. " In the present case it has already been pointed out above that although it was not expressly mentioned in Ex. P. 1 that the agreement between the parties was to stifle the prorsecution,yet it is clear that it was an implied term of the contract between the parties. It was mentioned in Ex. P. 1 itself that the plaintiff's camel was stolen away, that it had come in the possession of the executants, that it had thereafter gone out of their possession, that Ranjeeta had gone out in search of the camel and that if he was unable to bring it back, Rs. 600/- would be paid to the plaintiff. Learned counsel has next referred to the case of Sukhdeo Dass vs. Mangal Chand (7) wherein it was observed that: "where the consideration for on agreement is a promise not to prosecute for an offence which is not compoundable, the agreement is not enforceable by law, but this limitation of freedom of contract should only be enforced where it is quite clear that the consideration for the agreement was such an illegal promise. When on a mere threat to prosecute or an apprehension that prosecution would take place an agreement has been come to, this threat or apprehension is not sufficient to vitiate the agreement. The distinction in such cases between the motive for coming to an agreement and the actual consideration for the agreement itself must be kept carefully in view and this care must be particularly exercised in a case where there is a civil liability already existing and which is discharged or remitted by the agreement. " Learned counsel wants to urge that the defendant had a civil liability existing at the time when he entered into contract and it is further urged that although the motive for the agreement may be to stifle the prosecution, yet that was not their actual consideration for the agreement. I have given due consideration to this argument, but in my opinion it is not tenable. There was no civil liability on the defendant in the present case apart from the liability arising out of alleged receiving of the stolen property on his part. If the defendant had not committed any theft of camel or he had not received it knowing it to be stolen property, then it is not understandable how he could be under any civil liability to hand over any camel to the plaintiff or to give its value. Reference has also been made to the case of Dwijendra Math Mullick vs. Gopiram Gobindram (8) and Rameshwar Marwari vs. Upendranath Das Sarkar (g ). It would suffice to say that both these cases may be easily distinguished on facts. In the first case (8) the complainant in a case of criminal breach of trust had agreed to the prosecution being brought in consideration of a portion of the embezzled money being paid to him in cash, and of a mortgage being executed in his favour by the accused and his brother. It is clear that the defendant was already under a civil liability which was discharged by the agreement. In the case of Rameshwar Marwari vs. Upendranath Das Sarkar (9) also it was found by the learned Judges that the defendant had not been able to establish necessary facts to bring his case under sec. 23 of the Indian Contract Act. Learned counsel has lastly relied upon Shaikh Gafoor vs. Mst. Hemanta Shashi Dabya (10 ). That case also is not of any assistance to the respondent because it was found as a fact by the learned Judge that the bond on which the suit was based expressed a civil liability on the part of the defendant and the withdrawal of criminal prosecution formed no part of the consideration of the promise. That is not the position in the present case as has been explained above. I therefore find that issue No. 3 has been wrongly decided by the appellate court. Now as regards issue No. 4, the learned Judge has not given his clear finding but, in my opinion, the respondent cannot succeed even on that point. The document Ex. P. 1 purports to have been written on behalf of two brothers, Sheodana and Ranjeeta and it does not disclose whether it was Sheodana or Ranjeeta who was responsible for stealing away the camel or receiving it as stolen property. Sheodana had simply mentioned in this document that his brother had taken away the camel and that he would try to get it restored from him. It does not disclose what consideration Sheodana himself had received from the plaintiff. The trial court's decree cannot therefore be maintained even on merits. The appeal is therefore allowed. The decree of the appellate court dated 18. 11. 52 is set aside and that of the trial court dated 30. 4. 51 is restored. In other words the suit of the plaintiff-respondent stands dismissed. In view however of the fact that the appellant also did not came out with clean hands, parties are left to bear their own costs. . ;