C. Manohar vs B.R. Poornima

R. Banumathi, J.—The complainant in C. C. No. 191 of 1996, on the file of the Judicial Magistrate, Ambattur is the appellant. By the order

(dated 20-3-1997), the trial Magistrate has acquitted the respondent/ accused of the offence u/s 138 Negotiable Instruments Act (in short, the

N.I. Act). Aggrieved over the order of acquittal, the complainant has come forward with this appeal.

This case arises in a strange situation and facts. The Advocate is fastening the liability u/s 138, N. I. Act on his client alleging that the amount is

payable towards him as legal expenses.

The facts which led to the present appeal could be stated thus :--

Husband of the accused died on 13-6-1992 in a road accident, that took place on 10-6-1992, leaving her and a male child. The accused engaged

the complainant to file a claim petition in M.C.O.P. No. 2339 of 1992. Subsequently, mother-in-law of the accused also filed a claim petition in

M.C.O.P. No. 246 of 1993 in which also, this complainant has filed vakalat for the accused. Both the claim petitions were heard together and an

award for Rs. 2,50,400/- was passed on 10-6-1995. At the request of the accused, the complainant had also filed two suits against her mother-in-

law, claiming a share in the house property, as legal heir of her husband and another suit claiming Rs. 30,000/- being the value of the jewels and

articles which were retained by the mother-in-law. As per the terms of the award, in part payment of 50% of her share, the accused received the

cheque for Rs. 63,072.50/- on 14-3-1996.

The case of the complainant is that towards legal fee and expenditure payable for conducting the cases, the accused has issued Ex.P-1 cheque

for Rs. 43,600/- dated 16-3-1993. The cheque amount was being given to clear the liability towards the complainant. The cheque was presented

for collection by the complainant through his Banker, Madras Central Co-operative Bank, Anna Nagar. The cheque was returned on 19-3-1996

with endorsement ""insufficiency of funds"". The complainant contacted the accused on that day itself and informed her about the return of the

cheque. The accused informed the complainant that she would deposit the cheque for the amount of Rs. 63,072.50/- and the complainant could

represent the cheque. Accordingly, the complainant has represented the cheque for Rs. 43,600/- on 23-3-1996. During the second presentation

also, the cheque was returned as bounced with a note ""payment stopped"". After the issuance of the statutory notice, the complainant filed the

complaint alleging that the accused committed the offence punishable u/s 138, N. I. Act.

To substantiate the averments in the complaint, in the trial Court, PW-1 complainant, P.Ws-2 and 3 -- Bankers of the complainant and the

accused were examined, Ex.Ps. 1 to 8 were marked. Case of the accused is that no amount is payable by her and the amount towards stamp duty

and others were already paid.

Upon consideration of the evidence, the trial Magistrate found that there is no debt or legally enforceable liability. Finding that no amount is

payable on the cheque, the learned Magistrate found that by the return of the cheques with endorsement ""insufficiency of funds"" and ""stop

payment"", no criminal intention could be attributed to the accused. On those findings, the trial Magistrate has acquitted the respondent/ accused of

the offence u/s 138, N.I. Act.

Aggrieved over the order of acquittal, the complainant has preferred this appeal.

Assailing the findings of the trial Court, the learned counsel for the appellant submitted that the amount payable by the accused towards stamp

duty paid and the legal expenses was not properly appreciated by the trial Court. Placing reliance upon 1998 1 Crimes 268 (SC), it is contended

that once the cheque is issued, presumption u/s 139, N.I. Act arises that the holder of the cheque received the cheque of nature referred in Section

138, N. I. Act and the trial Court erred in not drawing such a presumption, and prays for reversal of order of acquittal.

Countering the arguments, the learned counsel for the respondent/accused has submitted that the amount towards legal remuneration and stamp

duty was already paid and that no amount is payable. It is the further contention that there is no legally enforceable liability and the complaint filed

u/s 138, N. I. Act is not maintainable and the reasonings for acquittal is well balanced and that there is no reason warranting interference.

In the factual backdrop of the case the points that are arising for consideration are :--

(i) Whether the trial Court was not right in finding that there is no debt or legally enforceable liability? and;

(ii) Whether the order of acquittal suffers from any infirmity?

The facts are not in dispute. The complainant claims that the amount of Rs. 43,600/- is payable by the accused who is his client who engaged

him to make claim of compensation for the death of her husband in a Road accident. 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.

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, it has to be carefully seen whether the complainant has proved that the amount due of Rs. 43.600/- is being payable towards him.

To attract the penal provisions u/s 138 N. I. Act, a cheque must have been drawn by the accused on an account maintained by him with a

banker for payment of any amount of money to another person from out of that account for the discharge in whole or in part, of any debt or other

liability due. That means, the cheque must have been issued in discharge of debt or other liability wholly or in part. The cheque given for any other

reasons not for the satisfaction of any debt or other liability, even if it is returned unpaid-, will not meet with penal consequences.

Case of the complainant is that on behalf of the accused, he has filed claim petitions in M. C. O. P. Nos. 2339 of 1992 and 246 of 1993. Two

civil cases were also filed. There is nothing to show that the complainant/Advocate himself has paid the stamp duty and bore the legal fees. The

complainant has not produced any agreement showing as to what was the arrangement between him and the accused, as to how much is the fee

payable and whether the accused agreed for payment of stamp duty by her counsel itself. In the absence of any agreement, Ex. P-1 cheque cannot

be said to have been issued for the purpose of discharge of any substantial debt or liability. Urging the Court to raise the presumption u/s 139 N. I.

Act, the learned counsel for the appellant has relied upon M/S Modi Cements Limited Vs. Shri Kuchil Kumar Nandi, - wherein the Supreme

Court has held that once the cheque is issued by the drawer a presumption u/s 139 N. I. Act must follow and merely because the drawer issues a

notice to the drawee (Payee) or to the Bank for stoppage of the payment it will not preclude an action u/s 138 of the Act by the drawee (Payee)

or the holder of a cheque in due course. Of course, u/s 139 N. I. Act, there is a presumption that unless the contrary is proved, the holder of the

cheque received the cheque for the discharge in whole or in part of any debt or other liability. But even in Section 139 N. I. Act, the legal

presumption is created only for the cheque so received for the dischargein whole or in part of any debt or other liability. In the case on hand, the

complainant being a practising advocate, 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.

In an appeal against acquittal, the High Court would be slow to interfere with the order of acquittal. Only if there are glaring infirmities resulting

in miscarriage of justice, the High Court would reverse the order of acquittal. No convincing grounds are made out warranting interference in the

impugned order. This appeal is bereft of merits and is bound to fail.

C. A. No. 511 of 1997 :-- For the reasons stated above, the appeal is dismissed.