Chapman, J.:— This appeal arises out of a, suit upon a hand note, the sum claimed being Rs. 575-14-9 with interest amounting to Rs. 166-13-6. The defence was a defence of accord and satisfaction. The defendant's case was that a sum of Rupees 933.10-0 was due to them from one Muni Lal, a relation of the plaintiffs, who had been the defendant's gomashta, that they remitted Rs. 333-10-0 from this sum due from Muni Lal and agreed with the plaintiffs that the balance of Rs. 600 due to them from Muni Lal should be set off against what was due by the defendants to the plaintiffs under the hand-note, that at the time of this agreement Rs. 83-12-3 was paid by the defendants to the plaintiffs as the balance due from them, and that upon the receipt of this sum the plaintiffs agreed that what was due under the hand-note should be treated as discharged. The Munsif did not believe this story of accord and satisfaction and decreed the suit. In appeal the learned District Judge differed from the finding of the Munsif and has held that the allegation of ‘accord and satisfaction’ has been proved. The first contention before as is that the consideration which was accepted towards satisfaction of the debt due upon the hand-note was not a legal consideration inasmuch as it amounted to a promise not to prosecute ‘Muni Lall criminally and, therefore, the learned District Judge has erred in giving effect to this accord and satisfaction for the purpose of disposing of this point, we gave the appellants opportunity to lay before us the evidence in regard to it, there being no reference to it in the judgment of the learned District Judge. The evidence which has been placed before us on this point consists first of a recital in the document which purported to be the record of the agreement of accord and satisfaction. This recital is to this effect:
“Muni Lall Marwari, who is my near relation, i.e, my own sarhu, was gomashta of Mangal Chand Jagar Nath Prasad from a long time; he has dishonestly appropriated under bahi khata the sum of Rs. 933-10-0 belonging to Mangal Chand Jagar Nath Prasad aforesaid. When on seeing bahi khata and on testing the same this was evidence, Mangal Chand Jagar Nath Prasad became ready to institute nalis in Court against Mnci Lall aforesaid. If nalis be made Muni Lall aforesaid will become very much harassed and disgraced. For this reason and inasmuch as he is my near relation I have compromised.”
2. We have been asked to read with this recital the evidence of the defendant Jagar Nath Prasad to this effect;
“Muni Lal was my gomashta. He misappro priated Rs. 933-10-0 from my shop. When I intended to bring a criminal case against Muni Lal for misappropriation, he brought Ram Sarup Ram, oue of the plaintiffs, who is his sarhu, to settle the matter.”
3. The matter was referred to and was in fact subsequently settled by a panchayet and so far as the evidence is concerned there is no evidence that anything was said at that panchayet about the intention to criminally prosecute Muni Lal. Where the consideration for an 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 on 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 case must be particularly exercised in a case where there is a civil liability already existing and which is discharged or remitted by the agreement. Applying these considerations to the present case, I am not satisfied that the consideration, using the term in its strict sense, for this agreement was a promise not to prosecute Muai Lal for embeszlemant. It may be that Muni Lal's relations, the plaintiffs, were led to enter into this agreement by a fear that their relation would be criminally prosecuted, but that does not mean that the consideration for the agreement into which they entered was a promise not to prosecute Muni Lal. In fact there is no evidence that any such promise was made. The agreement is susceptible of the explanation that Muni Lal was released from civil liability by this discharge.
4. The judgment of the learned District Judge has been assailed upon another ground, that is, that he has not properly dealt with the evidence. The judgment certainly is too short for a good judgment upon the evidence in this case and it is not without difficulty that we have been able to justify some of the statements made in the judgment. The statement that the fact of embezzlement by the gomashta is clearly proved” has some basis on the evidence of Muni Lal where he says that he left the shop of the defendant with some of his accounts incomplete. The statement that the fact of embezzlement was found to be proved by the leirned Munsif — almost amounts to a mis statement. What the learned Munsif found was that the amount claimed and alleged to be due from Muni Lal was not due from him, though the Munsif says that something was due from Muni Lal. The learned District Judge says that the witnesses are men of good standing and entirely unconnected with either party.
5. The Munsif, by reference apparently to the bahi khata, notices that two of the witnesses were debtors of the defendants, but the learned Judge's remark upon the point is susceptible of justification from the fact that out of these witnesses two were cross-examined on this point, otherwise than by a suggestion that they were defendant's customers. The learned District Judge's judgment is somewhat near the line at which we interfere with judgments which are based upon misconception or mis-statement of the evidence, but in the present case, I am not prepared to say that mis-statements, such as there are in the judgment, have overstepped the line, and I am not prepared to safe aside the judgment on this ground. The result is that the appeal is dismissed with costs.
6. Jwala Prasad, J.:— I entirely agree.
V.S/R.K
7. Appeal dismissed.