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TMI Blog2015 (10) TMI 2696X X X X Extracts X X X X X X X X Extracts X X X X ..... n advocate filed O.P.No.152 of 1999, for motor accidental death of her husband late Venkata Ramana for compensation and before the motor accident tribunal, the compensation awarded by allowing in part of the claim was Rs. 64,88,000/- with interest 9% per annum and impugning the same, the insurance company preferred CMA No.3454 of 2002 that was ended in dismissal on 02.07.2004 and insurance company filed a civil appeal No.4844 of 2005, before the Supreme Court, that was also ended in dismissal on 24.09.2012; that insurance company deposited Rs. 85,73,880/- ultimately on 28.06.2013 to the credit of O.P.No.152 of 1999 and as per orders passed therein, the accused is entitled to 40% of the compensation towards her share which comes to 34,29,552/- and after receipt of the same, the accused issued cheque in favour of the complainant for Rs. 3,00,000/- on 25.10.2014 drawn on Andhra Bank, Vijayanagar Colony Branch, Masab Tank, Hyderabad towards professional and Court expenses upto Supreme Court and the cheque was sent through G.Nagaraju Advocate, who is the colleague of the complainant and relative of the accused who also rendered service by going to the residence of the accused for all ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 139 of N.I. Act to draw besides presumptions under Section 118 of N.I.Act that the cheque issued is as a negotiable instrument for consideration and bears on it the date of issue and in favour of the payee and by the drawer as duly issued. It was held in the expression of Rangappa's case (supra) that burden is on the accused for the reverse onus clause to rebut the response, explaining the earlier proposition in KRISHNA JANARDHAN BHAT v. DATTATRAYA G. HEGDE and reiterated the earlier proposition in NARAYAN MENON v. STATE OF KERALA and several other expressions in this regard laid down by the Apex Court earlier. The contentions in the quash petition not even in answering to say the cheque was not routed from the account of the accused and the cheque is not bearing her signature. She infact issued reply as one of the enclosures to the statutory notice dated 18.11.2014 served on 25.11.2014 for the dishonour of the cheque demanding to pay the amount, that her daughter's marriage going to be celebrated on 17.12.2014 and she and her family members are busy therewith and unable to contact an advocate and draw attention to cause issue reply and a detailed reply could be gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque drawn in the name of Sri T.Sarath as payee was 755369. There is another Bank account statement filed on Smt.Sunita showing from January, 2006 to July, 2006 whereunder on 09.01.2006 Rs. 1,30,000/- drawn by the cheque bearing No.407984 by the payee Sri T.Sarath, Advocate and again on 16.05.2006 by another cheque bearing No.412990 of Rs. 1,45,000/- drawn by Sri T.Sarath, Advocate. Besides the above, there is email from GMail account of said Sarath to [email protected], dated 04.12.2014 showing forwarded message attached, so also with said O.P.No.152 of 1999 sunita, so also another message on 02.11.2014 from Gougi Nagaraju to Sarath and details would show decree total amount of Rs. 64,88,000/- with interest of 9% per annum upto 11.11.2002 which comes to interest of total Rs. 88,48,050/- share on Sunita 40% besides on two daughters total 40% and the parents total 20% and the amount deposited by Insurance Company Rs. 20,00,000/- plus 7.5 lakhs plus Rs. 85,73,880/- and the balance Rs. 37,06,664/- respectively on 03.02.2003, 28.12.2004 and 28.06.2013 to his total amount deposit Rs. 1,13,23,830/- therein. The share of Sunita and the two daughters comes to Rs. 90,59,064/-. Remain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is only Rs. 2,000/-, decrees of other Courts that is High Court and Supreme Court not before this Court. The advocate fees Rules fixed by the High Court nowhere speaks any penal consequences claimed beyond much less to say same is illegal. Under Section 23 of the Indian Contract Act, the consideration or object of a claimant is lawful unless it is forbidden by law (covered by Sections 26 to 28 and 30) or is of such nature that if permitted it would defeat the provisions of any law or is overtured or involves or implies, injury to the person or property of another or the Court records it as immoral or opposed to public policy. In each of these cases the consideration or object of a claimant is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. Sofar as Advocate Fees Rules report of 2010 placed reliance by the quash petition concerned, in addition to what is discussed supra, the fees rules fixed in subordinate courts in M.V.O.P. is the maximum fees. Once there is no any order either from the Advocate Fess Rules or otherwise on fees beyond and cannot be claimed, it cannot be said any claim beyond what is fixed is forbidden by law. Infa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted is summary, even in the summons case, the Magistrate is proceeding and all these factual aspects are not possible to adjudicate there. Such contention by either side is un-tenable in view of the enabling provisions under Section 259 of Cr.P.C for the learned Magistrate if necessary to convert the summons case into warrant case and to proceed with, to decide all the factual disputes as it is the forum to decide that to discharge of such burden is on the accused under the reverse onus clause to show that the debt is either un-enforceable or for any other defence of the criminal prosecution for the dishonour of cheque unsustainable. It is also for the reason including from the recent expression of the Apex Court in HMT case that the Court under Section 482 of Cr.P.C. cannot conduct any roving enquiry into disputed question of facts required to be decided by a trial Court, much less arrive any finding in premature. The counsel for quash petitioner placed reliance on the expression of the Madras High Court in C.Manohar Vs. B.R.Purnima, which is a case under Section 138 of N.I. Act where towards legal fees and expenditure payable for conducting the case, accused issued Ex.P1 Cheque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ient to the advocate towards fees and expenses, but for saying on the factual matrix of no agreement filed and not proved by the advocate of what are the expenses besides what is the fees due. There is also not decided as to only advocate fees rules is the yardstick and beyond that no fees to be claimed. It is not even decided whether any such agreement under Contract Act is unenforceable and if so on what criteria. Thereby the decision noway helpful at this stage in seeking to quash the proceedings, but for at best of use before the trial Court as part of any defence version in discharging the burden by accused under reverse onus clause. Having regard to the above, this Court cannot go into the disputed factual aspect to quash the C.C. proceedings but for left open to the both sides to agitate before the trial Court, in view of the matter to be decided by trial Court and on the limitation against this Court in a quash petition in going into the detailed factual disputed aspects. Thus, none of the observations herein shall prejudice any of the rights of the parties particularly of the accused in defence before the trial Court, for disposal of the case on merits after full dressed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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