Illegal Fee Of Advocate Is Not A Legal Claim: Madras High Court Quashes Proceedings Against Client For Dishonour Of Cheque Paid To Advocate

The Madras High Court recently came to the rescue of a client who had proceeded against the Negotiable Instruments Act based on a complaint by a lawyer for dishonour of cheque by observing that a fee, which is per se illegal as per the Legal Practitioners Rules, will not be a legal claim and a legal liability could not be fastened upon the client to pay the same.

Justice G Ilangovan of the Madurai Bench thus quashed the proceedings before the Fast Track Court in Madurai after observing that the continuation of criminal proceedings against the client would be an abuse of the process of law.

“Legal process can be undertaken to advance or vindicate the grievance, but it should not be permitted to be taken as an act of aberration, abuse and that too by any legal practitioner. So, the entire process is liable to be quashed,” the court further observed.

The court was hearing a plea by Davidraj seeking to quash the criminal proceedings against him initiated on the basis of a private complaint made by V Pavel, an Advocate practising in Madurai.

In his complaint, Pavel had claimed that Davidraj had approached him in 2008 for legal assistance and was facing a debt of more than 1.3 crore along with various criminal cases. Pavel further claimed that no fee had been paid for legal assistance but an assurance was given that Davidraj will execute sale deed for 10 cents. Pavel also complained that in November 2012, he had even allowed Davidraj to stay in his office when he was facing threat to life. However, after this Davidraj issued a notice for giving consent for change in vakalath and when Pavel demanded Rs. 10 Lakh as fee, a cheque was issued which, when presented, was returned as Funds Insufficient. Thus, Pavel filed a private complaint.

Seeking to quash this private complaint, Davidraj argued that the amount of Rs. 10 Lakh claimed by Pavel itself was illegal as per the Legal Pracitioner’s Fees Rules 1973. Pavel, on the other hand, claimed that the cheque was not issued only towards the payment of legal fee but discharged towards the liability incurred for the several expenses during the course of the legal engagement.

The court however agreed with the submission made by Davidraj that there were no documents to show that the amount was paid for all the litigations that were defended by Pavel. Thus, the court observed that the payment was not contractual in nature and as per the Apex Court decision in B Sunitha v State of Telangana and another, when the payment was not contractual, a petition under Section 138 of Negotiable Instruments Act was not maintainable.

“As mentioned earlier, absolutely, no contractual document has been filed by the respondent to show the terms between the petitioner and himself to show all the litigations defended by him a consolidated fee was agreed to pay by the petitioner. In the absence of such primary document, or even the statement and the complaint, then mere issuing of the cheque in the facts and circumstances of the case will not create any legal liability,” the court noted.

The court also noted that the fee claimed by Pavel was prima facie illegal as per the Rules and thus, no legal liability could be fastened upon Davidraj to honour the cheque.

“Apart from that, in the light of the Legal Practitioner's Fees Rules 1973, the fee that has been claimed by the respondent prima facie shows illegal in nature. So, the illegal claim cannot be construed as legal claim. No legal liability can be fastened upon the petitioner to honour the above said cheque. So this contention on the part of the respondent is rejected,” the court observed.

The court thus allowed the application and quashed the proceedings.

Supreme Court Grants Anticipatory Bail To Man Accused Of Selling Gutkha On Condition To Not Deal With Gutkha

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While granting anticipatory bail to a man who was accused of selling Gutkha, the Supreme Court imposed a condition that he would not deal with Gutkha.

"It is deemed appropriate to impose the condition – 'I, ....do undertake to not deal with Gutkha, that is, Pan Masala with Tobacco'. In case, the appellant - Abhijeet Jitendra Lolage violates the terms and conditions of bail, including the undertaking imposed, it would be open to the prosecution to seek cancellation of bail. It is clarified that the observations recorded in the signed order will not be treated as findings on the merits of the case," ordered a bench comprising Justices Sanjiv Khanna and SVN Bhatti.

The Court passed the order setting aside a Bombay High Court's order which rejected his anticipatory bail application.

The accused had also been booked under Section 188 (disobedience of order duly promulgated by public servants) of the Indian Penal Code, and various provisions of the Food Safety and Standards Act.

Punjab and Haryana High Court rejects plea to protect live-in relationship since woman was still married to another

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The Punjab and Haryana High Court recently refused to grant police protection to a live-in couple after noting that one of the persons in the live-in relationship was still married to another.

the relationship, terming it "illicit" and "promiscuous", since the woman had a subsisting marriage as well as a son from that wedlock.

While the woman had claimed that her husband had been beating her, the judge took critical note that neither had the woman filed for divorce nor taken any other action against the same.

The Court proceeded to reject the plea to protect the woman and her live-in partner after also noting that only vague allegations of threats have been made in the petition.

“Merely the sweet will of the petitioners and the right to life and liberty granted to them under the Constitution of India cannot be a right in isolation and with every right, there comes a duty which is also to be adhered to,” 

It is shocking that the maintenance amount has been so drastically reduced to a petty amount of Rs. 1,000/- (Rupees One Thousand) per month for a lady reduced from Rs.5000.-SC

A Division Bench of the Supreme Court, while hearing an appeal, expressed shock at the impugned judgment of the Jharkhand High Court, whereby the maintenance amount of Rs. 5,000, awarded by the Trial Court, was reduced to Rs. 1,000, per month. The Court further opined that it finds no justification for reducing the amount to such an extremely low limit.  “It is shocking that the maintenance amount has been so drastically reduced to a petty amount of Rs. 1,000.

In view of the same, while setting aside the impugned order, the Court restored the Trial Court’s order awarding Rs. 5,000/ per month as maintenance under Section 125 of the Code of Criminal Procedure, 1973.

NI Act 148 The condition of depositing 20% ​​of the amount is not fulfilled; Relief is given if an extraordinary case is made: Supreme Court

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The Supreme Court observed that a deposit of a minimum 20% amount under Section 148 of Negotiable Instruments Act as a condition to suspend sentence is not an absolute rule.

When an Appellate Court considers the prayer under Section 389 Cr.P.C. of an accused who has been convicted for offence under Section 138 of the Negotiable Instruments Act, it can consider whether it is an exceptional case which warrants the grant of suspension of sentence without imposing the condition of deposit of 20% of the fine/compensation amount, the Court observed.

The bench of Justices Abhay S. Oka and Pankaj Mithal observed that if the Appellate Court comes to the conclusion that it is an exceptional case, the reasons for coming to the said conclusion must be recorded

In this case, the accused were convicted under Section 138 NI Act. In appeal, relying upon Section 148 NI Act, the Sessions Court granted relief under Section 389 CrPC subject to the condition of appellants depositing 20% of the amount of compensation. The Madhya Pradesh High Court confirmed this order. According to the High Court, relief of suspension of sentence under Section 389 of the Cr.P.C. can be granted only by directing the accused to deposit a minimum of 20% of the compensation/fine amount.

"What is held by this Court is that a purposive interpretation should be made of Section 148 of the N.I. Act. Hence, normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded."

"When an accused applies under Section 389 of the Cr.P.C. for suspension of sentence, he normally applies for grant of relief of suspension of sentence without any condition. Therefore, when a blanket order is sought by the appellants, the Court has to consider whether the case falls in exception or not.. In these cases, both the Sessions Courts and the High Court have proceeded on the erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception", the court said.

Supreme Court Rules That 2014 Judgment Striking Down Sec 6A Of DSPE Act Has Retrospective Effect

In a significant development, a Constitution Bench of the Supreme Court on Monday declared that its 2014 judgment, which declared Section 6A of the Delhi Special Police  Establishment Act 1946 as unconstitutional, will have retrospective effect. This means that Section 6A is not to be held in force from the date of its insertion.

Section 6A of the DPSE Act prescribed that the Central Bureau of Investigation should obtain prior sanction to investigate corruption cases against an officer of the rank of joint secretary and above. This provision was struck down as unconstitutional in the 2014 judgment in the case Subramanian Swamy v. Union of India.

The issue before the present Constitution Bench comprising Justices Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice AS Oka, Justice Vikram Nath and Justice JK Maheshwari was regarding the retrospective effect of the 2014 ruling.

Justice Vikram Nath, who orally pronounced the judgment on behalf of the bench, stated the following conclusions : 

1. Sec 6A is DSPE is part of procedure only and does not constitute any new offence

2. Article  20(1) of the Constitution has no applicability to the validity of Sec 6A

3. The declaration made by the Constitution Bench will have retrospective effect. Sec 6A is not to be held in force from the date of its insertion, i.e 11.09.2003.

Supreme Court Upholds Disciplinary Action Against Advocate Who Was Running Taxi Service

SC Upholds BCI’s Decision Barring Lawyer From Practice For One Year

The Supreme Court recently upheld the disciplinary action taken by the Bar Council of India(BCI) against an advocate who was running a taxi service. The advocate was barred from practice for one year due to his professional misconduct.

The bench comprising Justices Abhay S. Oka and Justice Pankaj Mithal was hearing an appeal filed by an advocate against the BCI’s decision to bar him from practice over professional misconduct.

The case revolved around two key allegations. First, it was established that the advocate had represented conflicting parties in cases. The advocate had initially represented a complainant, his brother, and his mother in a legal matter. Subsequently, the advocate took on the case of the complainant's mother, who was suing the complainant over the same land.

The second, more serious allegation centred on the advocate's involvement in running a taxi service. The Disciplinary Committee found that there is a striking similarity in the first name of the registered owner of the vehicle used for business and the appellant. Moreover, the name of the father of the appellant and the registered owner was the same and the vehicle was registered at the address of the appellant.

The Court observed, “The second allegation is of a very serious nature. The Disciplinary Committee of the Bar Council found that the appellant was having a business of running taxi service….The findings of the Disciplinary Committee of the Bar Council are based on documentary evidence. Therefore, we find no error in the action taken by the Disciplinary Committee when for the aforesaid misconduct, the appellant was directed not to practice law for a period of one year.”

Insurance Company Not Liable If Claimant Was Travelling In Trailer Which Was Not Insured Even If Tractor Was Insured: Supreme Court

Can Insurance Company be Held Liable If Claimant Was Travelling In Trailer Which Was Not Insured But Tractor Was Insured?

The case reached the Supreme Court after the Bombay High Court increased the compensation awarded to the claimant to Rs.9,99,280 with an annual interest rate of 9%. However, the Insurance Company was exonerated by the High Court as the claimant was traveling in the uninsured trailer while the tractor was insured.

The Supreme Court bench agreed with the High Court’s decision, highlighting that the insurance company cannot be held responsible in a situation where the claimant was traveling in an uninsured trailer. However, they noted that the claimant was a 20-year-old woman working as a laborer who was severely injured in the accident, resulting in the amputation of her left lower limb above the knee joint.

Considering the claimant’s 100% disability and the impact on her future marriage prospects and normal life, the bench ruled that it would be impossible for her to recover the compensation amount from the vehicle owner. They referred to their previous judgment in Oriental Insurance Company Ltd. Vs. Brij Mohan (2007) 7 SCC 56 to support their decision.

As a result, the bench directed the Insurance Company to pay the compensation amount determined by the High Court, along with the accrued interest, and recover the same from the vehicle owner. This decision was made using the Supreme Court’s Article 142 powers, which allow them to exercise discretion in order to ensure justice.

In conclusion, while the insurance company was not held liable for the claimant’s compensation due to the claimant’s presence in an uninsured trailer, the Supreme Court deemed it necessary to award the compensation amount and recover it from the vehicle owner. This ruling serves as a precedent for cases where both the tractor and trailer need to be insured for liability to be imposed on the insurance company.

HC Can Act On Section 482 Petition To Quash FIR Even If Chargesheet Has Been Filed During Its Pendency : Supreme Court

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'Far-Fetched, Vague Allegations' : Supreme Court Quashes Sec 498A IPC Case By Wife Against Mother-in-Law & Brothers-in-Law.

The Supreme Court recently quashed the criminal proceedings initiated at the instance of a wife against her in-laws for the offence of cruelty under Section 498A of the Indian Penal Code after noting that the allegations were "mostly general and omnibus in nature".

The woman had lodged the FIR against her mother-in-law and two brothers-in-law (one of them a judicial officer). The accused persons approached the Supreme Court after the High Court refused to quash the proceedings under Section 482 CrPC.

A bench comprising Justices Aniruddha Bose, Sanjay Kumar and SVN Bhatti noted that many of the allegations were improbable and inconsistent. It noted that the brothers-in-law resided in different cities and the interaction of the complainant with them was limited to only during the festival seasons. The complainant resided in her matrimonial home for only about two years and in 2009, she had voluntarily left it and started residing with her parents.

The most striking fact that the Court noted was that the complaint was filed only in 2013 soon after the husband filed a petition seeking divorce. The wife had also caused an anonymous complaint to be sent against her brother-in-law, who was in judicial service, to the High Court as well as to the Anti-Corruption Bureau. Later, she admitted that she was the author of the complaint.

Once Appointment Is Declared Illegal & Void Ab Initio, One Cannot Legally Continue In Service & Claim Salary: Supreme Court

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An Assistant teacher claiming the release of her unpaid salary from 2001 onwards, the Supreme Court recently held that once the appointment has been declared illegal and void ab initio by the Director of elementary education in Assam in 2001, continuing in service becomes untenable in the absence of challenge to the cancellation order.

The Court held that the failure to contest the cancellation order bars the appellant from claiming a legal right to continue in service and consequent salary claims.

“Once the appointment of the appellant had been declared illegal and void ab initio, and was canceled by the Director of Elementary Education, Assam vide order dated 18.10.2001, the appellant could not legally continue in service thereafter unless that cancellation order was set aside. It has been noticed by the High Court that the order dated 18.10.2001 was never challenged by the appellant. Thus, the appellant had no legal right to continue in service, especially when there was no order or letter placed on record by the appellant that she was allowed to continue beyond 31.03.2002. No claim for payment of salary could be made for any period.”

Motor Accident Claims : Supreme Court Criticises 'Lethargic Attitude' Of States In Not Filing Compliance Report

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The Supreme Court recently criticised the 'lethargic attitude' of states in not filing compliance reports on directions issued by the Top Court for implementation of the amended Motor Vehicles Act and the Central Motor Vehicles Rules.

The Apex Court in its previous order dated 10.07.2023 had urged the States and High Courts that had not filed their compliance reports in connection with a slew of directions issued by the Top Court in December 2022 with regard to motor accident compensation claims to do so by August 14. The Court warned that if the reports are not submitted on time, the Court would have to insist on the presence of Registrar Generals of the concerned High Courts and the Chief Secretaries of the concerned States in Court. The guidelines were issued in 2022 to carry out the purpose of the Motor Vehicle Amendment Act and the Rules.

Data required from Police of each District for the period 1st April, 2022 to 31st July, 2023.

Number of Road Accidents.

Number of cases in which First Accident Report (FAR) filed within 48 hours of the accident.

Number of cases in which First Accident Report (FAR) filed after 48 hours of the accident.

Number of cases in which First Accident Report (FAR) has not been filed.

Number of cases in which Interim Accident Report (IAR) filed within 50 days of the accident.

Number of cases in which Interim Accident Report (IAR) filed after 50 days of the accident.

Number of cases in which Interim Accident Report (IAR) has not been filed.

Number of cases in which Detailed Accident Report (FAR) filed within 90 days of the accident.

Number of cases in which Detailed Accident Report (FAR) filed after 90 days of the accident.

Number of cases in which Detailed Accident Report (FAR) has not been filed.

Data to be collected from each Insurance Company for the period 1st April, 2022 to 31st July, 2023

Number of Interim Accident Reports (IAR) received from the Police.

Number of First Accident Reports (FAR) received from the Police.

Number of Detailed Accident Reports (DAR) received from the Police.

Data to be complied in respect of each Motor Accident Claims Tribunal for the period 1st April 2022 to 31st July, 2023

Number of Interim Accident Reports (IAR) received month wise.

Number of First Accident Reports (FAR) received month wise.

Number of Detailed Accident Reports (DAR) received month wise.

Number of cases in which the Detailed Accident Reports (DAR has been treated as claim petition. Number of Cases decided according to the time period specified in Central Motor Vehicles Rules, 2022.

The Court directed the Registrar General of all High Courts and the Chief Secretaries of all States to file their compliance reports by 02.09.2023,