TMI Blog2020 (12) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... torial jurisdiction. Accordingly, the respondent ought to have filed the complaint within the jurisdiction of Indian Bank, High Court branch. Therefore, on this ground also the complaint cannot be sustained as against the petitioner. Petition allowed. - CRL.O.P.No.1157 of 2020 and Crl.MP.Nos.728 & 738 of 2020 - - - Dated:- 29-7-2020 - THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN For the Petitioner : Mr.A.Edwin Prabakar For the Respondent : Mr.R.Krishnakumar ORDER This petition has been filed to quash the proceeding in C.C.No.670 of 2019 on the file of the learned Judicial Magistrate, Chengalpattu, thereby taken cognizance for the offences punishable under Section 138 of Negotiable Instruments Act, as against the petitioner. 2. The learned counsel appearing for the petitioner would submit that the petitioner is a sole accused in the complaint lodged by the respondent herein for the offences punishable under Section 138 of Negotiable Instruments Act. He further submitted that the respondent is an Advocate, who appeared on behalf of the petitioner in so many matters. While being so, the respondent and his brother cheated the petitioner to the tune of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assured that he will pay interest to the said amount. He also executed pronote to that effect on 31.03.2017. Towards the repayment of the said amount, the petitioner issued a cheque for a sum of ₹ 9,45,000/- on 28.07.2019 and the same was presented for collection and the same was returned dishonour for the reason the Exceeds Arrangements . After issuing statutory notice, he lodged the present complaint for the offence under Section 138 of Negotiable Instruments Act. He further submitted that all the points raised by the petitioner cannot be considered under Section 482 of Cr.P.C., and all are mixed question of fact. Therefore, he sought for dismissal of the quash petition. 4. Heard Mr.A.Edwin Prabakar, learned counsel appearing for the petitioner and Mr.R.Krishnakumar, learned counsel appearing for the respondent. 5. The petitioner is an accused in the complaint lodged by the respondent herein for the offences punishable under Section 138 of Negotiable Instruments Act in C.C.No.670 of 2019 on the file of the learned Judicial Magistrate No.1, Chengalpattu. The case of the complainant is that the petitioner borrowed a sum of ₹ 24 lakhs for his development of his bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsence of independent proof, issuance of cheque could not furnish cause of action under Section 138 of the Act in the context 4 J.S. Vasu versus State of Punjab (1994) 1 SCC 184, para 20 5 (2004) Crl.L.J 443 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate, 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. 13. The Bombay High Court in Re: KL Gauba6 held that fees conditional on the success of a case and which gives the lawyer 6 AIR 1954 Bom 478 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. 14. In the matter of G.Senior Advocate of the Supreme Court, this Court held that the claim of an advocate based on a share in the subject matter is a professional misconduct. In VC Rangadurai versus D. Gopalan, it was observed that relation between a lawyer and his client is highly fiduciary in nature. The advocate is in the position of trust. 15. Rule 20 of Part VI, Chapter II, Section II of the Standard of Professional Conduct and Etiquette reads as follows : An advocate shall not stipulate for a fee con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 142 of the Negotiable Instruments Act, 1881, came to be amended, and also, Section 4 thereof, whereby, Section 142-A was inserted into the Negotiable Instruments Act. 12. Sections 3 and 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015 are being extracted hereunder: 3.Amendment of Section 142.-In the principal Act, Section 142 shall be numbered as sub-section (1) thereof and after sub-section (1) as so numbered, the following sub-section shall be inserted, namely- 142.(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction- (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or (b) if the cheque is presented for payment by the payee or holder in due course otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated. Explanation.-For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , would be determinative of the place of territorial jurisdiction. 14. It is, however, imperative for the present controversy, that the appellant overcomes the legal position declared by this Court, as well as, the provisions of the Code of Criminal Procedure. Insofar as the instant aspect of the matter is concerned, a reference may be made to Section 4 of the Negotiable Instruments (Amendment) Second Ordinance, 2015, whereby Section 142-A was inserted into the Negotiable Instruments Act. A perusal of sub-section (1) thereof leaves no room for any doubt, that insofar as the offence under Section 138 of the Negotiable Instruments Act is concerned, on the issue of jurisdiction, the provisions of the Code of Criminal Procedure, 1973, would have to give way to the provisions of the instant enactment on account of the non obstante clause in sub-section (1) of Section 142- A. Likewise, any judgment, decree, order or direction issued by a court would have no effect insofar as the territorial jurisdiction for initiating proceedings under Section 138 of the Negotiable Instruments Act is concerned. In the above view of the matter, we are satisfied that the judgment rendered by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
