TMI Blog2015 (10) TMI 2696X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed. 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 trial. Accordingly, the Criminal Petition is disposed of. The interim stay passed seizes its force for the trial Court to proceed with the trial for disposal on merits. - Criminal Petition No. 3526 of 2015 - - - Dated:- 14-10-2015 - Dr. B. Siva Sankara Rao J. ORDER : The petitioner Sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st respondent-State as well as the second respondent defacto complainant to quash the said private complaint case proceedings. The contentions in the quash petition raised by the accused and the petitioners are that the complaint did not disclose commission of the offence under Section 138 of Negotiable Instruments Act, there is no legally enforceable debt from the very complaint for the reason of claiming exorbitant amount as professional charges and Court expenses contrary to the law and prescribed procedure and the very claim is not legally enforceable, the statutory notice for cheque dishonoured could not satisfy the quantum of amount required to be paid for the cheque in question, otherwise, it lacks sanctity and the proceedings are nonest in the eye of law, the accused already paid ₹ 10,00,000/- to the complainant supported by relevant documents which are enclosed herewith and still the filing of the complaint by misusing the cheque is in violation of Advocate Rules and ethics so also in demanding a percentage money based on quantum of compensation covered by EMail conversation, which is part of quash petition enclosures and thereby against public policy and out come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as the claim of ₹ 3,00,000/- still as professional fees and other legal expenses despite ₹ 10,00,000/- already paid and the claim of the fees on percentage basis is in violation of the advocate Rules and conduct Rules and thereby the same is unenforceable and against the public policy and the complaint is liable to be quashed. One of the enclosures is decree in O.P.No.152 of 1999, dated 02.08.2002 claiming compensation under Section 166 of the Motor Vehicles Act by the five petitioners including the first petitioner B.Sunitha on the death of late Venkata Ramana, the claimants along with her two minor daughters, the parents of late Venkata Ramana against the driver and owner and the insurer of the Jeep MH 5K 5016 show claim made for ₹ 1,50,00,000/- and the advocate for the claim was one Sri T.Sharath and Court fees paid was ₹ 1,49,000/- under Rule 475 of A.P.Motor Vehicles Act on 03.09.2002 vide S.R.No 3242 of 2002, after the decree pursuant to Court fee, the temporary execution order in I.A.No.1756 of 1999 of the claim petition filed on 07.12.1998 and the tribunal on 25.01.1999 and the compensation awarded was ₹ 64,88,000/- with 9% interest of wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e account), 04.10.2013 ₹ 2,00,000/- including ₹ 1,00,000/- to G.N.Raju, on 12.11.2013 ₹ 2,00,000/- and on 27.09.2014 ₹ 3,00,000/- plus ₹ 3,00,000/- due since cheque dishonoured, hence the total payable of 16% on ₹ 90,59,064/- that comes to ₹ 14,49,450/-. In saying same out of ₹ 14,49,450/- total minus ₹ 9,75,000/- (which includes cheque amount of ₹ 3,00,000/- come to ₹ 4,64,450/-. These documents placed reliance by the counsel for quash petitioner/accused Smt.Sunitha. In support of the contention, additional material filed by her is the A.P.Advocates Fee Rules 2010 of Sub-ordinate Courts Clause 5 is placed reliance saying in all money suits, the fees to be calculated @ 10 % of the claim which does not exceed ₹ 10,000/- . Where as the claim made in the E-Mail message referred supra is for a total of ₹ 14,49,450/- and already shown by 27.09.2014 paid only ₹ 9,75,000/- other than the cheque claim of ₹ 3,00,000/- . It is therefrom submitted that the fee collected is contrary to the Advocate Rules thereby not entitled and it is an act nowhere be called as legally enforceable debt or other liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly guidance for collection of the Advocate fees as private expenses awarded against another or opposite party and not at all the yardstick for fixing of fees between advocate and client that is orbital against any claim beyond what is fixed therein. Once such is the case where the fee is demanded and the cheque issued is part of such advocate fees and other legal expenses of the litigation crop up to the Apex Court, it is the insurance company that unsuccessfully maintained the appeals before the High Court and Supreme Court against the award of the tribunal at Hyderabad and the quantum and interest since impugned that is attested on behalf of her by the said advocate in the High Court and by engaging advocate in Supreme Court irrespective of the contention that the Supreme Court appeal of the insurance company ended in default dismissal and not on merits disposal, the engaging of the advocate in Apex Court on behalf of the respondent claimant not in dispute. Apart from it, once there is a reverse onus clause, burden on the accused to rebut the presumptions to support the defence of any legally enforceable debt or other liability that is the matter to be decided in the cheque bounc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of funds from which the cheque bounce case filed. It was the contest therein that no amount is payable and amount already paid for what is due. The trial Magistrate ultimately found no legally enforceable debt or other liability with the finding that no amount is payable on the cheque. From which the appeal when filed before the High Court under Section 378 of Cr.P.C., the High Court held that for the facts not in dispute, the accused client engaged the complainant as advocate for death of her husband in a road accident case to make the compensation claim and the case on hand is an example of present day trend of legal profession. Though it is service oriented in putting forth the case of a client before authorities without record to remuneration received or to be received and from growth of litigation, gradually legal profession became full time occupation and the trend has changed and now it has almost become a trade and is no more service orientated and the relation between lawyer and client is one of the trust and confidence. It is observed further that to attract the penal provision of Section 138 of NI Act, the has shown drawn from the account of accused maintained with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
