TMI Blog2017 (12) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.2 could not be allowed to avoid the adverse consequences which he may suffer for his professional misconduct. The issue of professional misconduct may be dealt with at appropriate forum. - Criminal Appeal No. 2068 of 2017, (Arising Out Of Special Leave Petition (Crl.) No.10700 of 2015) - - - Dated:- 5-12-2017 - Mr. Adarsh Kumar Goel And Mr. Uday Umesh Lalit JJ. For the Petitioner : Mr. Baij Nath Patel,Adv., Ms. Sweta,Adv., Ms. Romila,Adv., Mr. K.Parameshwar, AOR And Mr. G.Seshagiri Rao,Adv. For the Respondent : Mr. S. Udaya Kumar Sagar, AOR, Mr. Mrityunjai Singh,Adv., Mr. R. Santhnan Krishnan,Adv., Mr. Aditya Kr.,Adv. And Mr. C. S. N. Mohan Rao, AOR JUDGMENT ADARSH KUMAR GOEL, J. 1. This appeal has been preferred against the order dated 14th October, 2015 of the High Court of Judicature at Hyderabad in CRLP No.3526 of 2015, thereby, the High Court declined to quash the proceedings initiated against the appellant under Section 138 of the Negotiable Instruments Act, 1881( the Act ). 2. The proceedings were initiated by the respondent who is an advocate in whose favour the appellant executed a cheque allegedly towards his fee. The same was dishonoure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al fee and having availed his professional services, she could not contest the claim for fee. It was submitted that the respondent had engaged services of other senior advocates and paid huge amount for their services at various courts including the Supreme Court. 6. The appellant, in support of her prayer for quashing, inter alia, argued before the High Court that the fee claimed by the respondent was against the A.P. Adovcates Fee Rules, 2010 of Subordinate Courts. It was also submitted that the claim of the respondent was against ethics and public policy and hit by Section 23 of the Contract Act. 7. The High Court held that Advocates Fee Rules are only for guidance and there was no bar to fee being claimed beyond what is fixed under the Rules. The claim of the respondent was that the amount included his fee for engaging an advocate in the High Court and the Supreme Court. Thus, the High Court dismissed the quashing petition. 8. We have heard learned counsel for the parties and perused the record. 9. The main contention raised on behalf of the appellant is that charging percentage of decretal amount by an advocate is hit by Section 23 of the Contract Act being again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of a cheque that amount stipulated in the cheque was payable towards fee. In absence of independent proof, issuance of cheque could not furnish cause of action under Section 138 of the Act in the context of an advocate or client. The observations relevant in the context are as follows : The case in hand is an example of the present day trend of the legal profession. Legal profession is essentially service oriental. Ancestor of today's lawyers was no more than a spokesperson, who rendered his services to the needy members of the society, by putting forth their case before the authorities. Their services were rendered without regard to remuneration received or to be received. With the growth of litigation, legal profession became a full time occupation. The trend of the legal profession has changed ... profession has almost became a trade. There is no more service orientation. 12. The relationship between the lawyer and the client is one of trust and confidence. The client engages a lawyer for personal reasons and is at liberty to leave him for the same reasons. Considering the relationship between the lawyer and the client and the present day trend in the profession ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not proved the debt amount payable towards him by the accused, who has engaged him as his lawyer to conduct the case. The finding of the trial Court that there is no debt or legally enforceable liability' does not suffer from any infirmity warranting interference. 14. The Bombay High Court in Re: KL Gauba AIR 1954 Bom 478 held that fees conditional on the success of a case and which gives the lawyer an interest in the subject matter tends to undermine the status of the profession. The same has always been condemned as unworthy of the legal profession. If an advocate has interest in success of litigation, he may tend to depart from ethics. 15. In in the matter of Mr. G.: A Senior Advocate of the Supreme Court (1955) 1 SCR 490 , this Court held that the claim of an advocate based on a share in the subject matter is a professional misconduct. 16. In VC Rangadurai versus D. Gopalan (1979) 1 SCC 308, para 31 , it was observed that relation between a lawyer and his client is highly fiduciary in nature. The advocate is in the position of trust. 17. Rule 20 of Part VI, Chapter II, Section II of the Standard of Professional Conduct and Etiquette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardas Sadarangani versus Ramchand Issardas Sadarangani 1993 Supp. (3) SCC 256, this Court noted the trend of increasing element of commercialization and decreasing element of service. In VC Rangadurai (supra) Paras 30 to 32, this Court observed that confidence of the public in the legal profession was integral to the confidence of the public in the legal system. Commercialization to the extent of exploiting the litigant and misbehavior to the extent of browbeating the Court, breach of professional duties to the court and the litigant on the part of some members of the legal profession, affecting the right of the litigants to speedy and inexpensive justice, need to be checked. This has also been observed earlier in the decisions of this Court (O.P. Sharma versus State of Punjab (2011) 6 SCC 86, paras 18 to 23; R.D. Saxena versus Balram Prasad Sharma (2000) 7 SCC 264, paras 14,28,41,42) . 24. In its 131st Report dated 31st August, 1988, the Law Commission of India, examined the role of the legal profession in strengthening the system of administration of justice. The issue considered included : (i) the state of profession and its public image; (ii) profes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counseling the parties and could contribute to reduce the delay in proceedings (Para 3.11, 3.13) . Alternative modes of resolution of disputes should be explored and one such may be pre-trial conciliation proceedings (Para 3.21) . Reducing the number of witnesses to be examined by deleting the irrelevant witnesses reducing the length of cross-examination by avoiding unnecessary questions (Para 3.17) and avoiding adjournments could help the administration of justice. 28. Though the 131st Report was submitted in the year 1988, no effective law appears to have enacted to regularize the fee or for providing the public sector services to utmost needy litigants without any fee or at standardized fee. Mechanism to deal with violation of professional ethics also does not appear to have been strengthened. Success of administration of justice to a great extent depends on successful regulation of legal profession in the light of mandate under Article 39A for access to justice. Deficiency in the working of the present regulatory mechanism has been acknowledged by this Court in several decisions (Mahipal Singh Rana Advocate versus State of Uttar Pradesh (2016) 8 SCC 335, para 56 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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