- 1 - 782 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLICATION NO.782 OF 2011 Navin Jain .. Applicant vs 1.State of Maharashtra 2.Ahmed M.Abdi, Advocate .. Respondents Mr.Anil Chouhan i.b. M/s N.N.Vaishnava for Applicant Mr.M.M.Deshmukh APP for Respondents Mr.Ahmed M.Abdi Respt no.2 present in person CORAM: K.U.CHANDIWAL, J DATE: 16th September,2011 P.C. 1. Heard. In an unfortunate event the Respondent no.2 as an Advocate has prosecuted his client for the offence under section 420 IPC having failed to discharge the bills raised by the advocate to be paid in schedule. 2. During the course of submissions to ensure that the matter being between an Advocate and his client if it can be worked out, certain modalities were suggested. The Respondent no.2 (Advocate) in person says - 2 - 782 that his bill is for Rs.1,25,000/-. He will settle for the same and may withdraw the prosecution. The Court suggested him to scale down the figure to Rs.75,000/-. The Petitioner agrees to pay Rs.75,000/- by way of settlement. The Respondent No.2 (Advocate) has declined the offer. 3. Having gone through the complaint and the correspondence between the parties,emails sent I find that there were sittings between the Petitioner and Respondent no.2 as Advocate or partner of Respondent no.2 in respect of legal advice and settlement of family controversies of the Petitioner and certain drafts were prepared. However, the draft could not be further accelerated for want of requisition from the side of the Petitioner or other circumstances. Barring raising of the demand, it does not indicate that time was - 3 - 782 sought at any point of time by the Petitioner to comply the payment of fees. Non payment of demand of bills of an Advocate as professional fees even otherwise will not attract offence under section 415 of IPC which reads as under : Cheating- Whoever, by deceiving any person, fradulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property is said to cheat . 4. The basic ingredient of section 415 IPC informs that if any person fradulently or dishonestly induces any person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person - 4 - 782 so deceived to do or omit to anything which he would not do or omit if he were no so deceived,then it is sufficient to constitute cheating. 5. The case had not proceeded ahead barring the advise rendered by the Advocate to his client during the course of a property dispute. There is nothing that fees of Rs. 1.25 lacs settling the property controversies was ever agreed upon by Petitioner. In the inquiry that the police caused it is informed that the Accused/Petitioner said that he was ready to pay Rs.25,000/- as was agreed at initial stage. 6. The Respondent No. 2 in person (Advocate) invited my attention to the judgment in the matter of SMT.NAGAWWA VS VEERANNA SHIVALINGAPPA KONJALGI AIR 1976 - 5 - 782 (II) SUPREME COURT 1947). The said Judgment informs about the limited powers of the Revisional Court under section 401 of Cr.P.C. There is no controversy on the legal position. In the said Judgment, the Hon'ble Apex Court have informed the categories to set aside orders of issuance of process which are flowing into from the judgment of VADILAL PANCHAL vs DATTATRAYA DULAJI GHADIGAONKAR AIR 1960 SUPREME COURT 1113 and also AIR 1960 SUPREME COURT 866 IN R.P.KAPUR's MATTER. The guidelines highlighted by the Apex Court and categories are as under : (i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings in respect of the offence alleged. Absence of the requisite sanction may, for instance furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face - 6 - 782 value and accepted in their entirety do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S.561- A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. 7. Thereafter, Hon'ble Supreme Court in the matter of STATE OF HARYANA & ORs VS BHAJANLAL & ORS 1992 SUPREME COURT (Cri) - 7 - 782 4268 have categorized seven events to invoke the jurisdiction in terms of section 482 of Cr.P.C.. The seven categories are as under : 1. where the allegations made in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. 3. where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused. 4. where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. - 8 - 782 5. where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 8. In the matter of MOHAN GOSWAMI VS STATE OF UTTARANCHAL reported in 2008 (1) SCC (Cri) in para 25 the three Bench judgment of the Apex Court has observed as under : The Court must ensure that Criminal prosecution is not used as an instrument of harassment or for seeking private - 9 - 782 vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction of the High Courts under Section 482 Cr.P.C. Though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the statute itself. 9. Thus, the inherent powers under section 482 of Cr.P.C. can be exercised (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, (iii) to otherwise secure ends of justice. 10. Reverting to the case as projected by the Complainant (Respondent no.2 learned Advocate) he comes up with a case of settlement of fees at Rs.1,25,000/- without there being a primary iota to demonstrate the same. There may be several sittings between the parties and the Advocate for - 10 - 782 compensation. However, all such meetings should have a nexus to display that there was an element of fradulent approach by Petitioner to cheat or to dupe Advocate for avoiding to pay legal fees. The Petitioner had conveyed to the Respondent (Advocate) that the bill sent was a steep. Advocate felt, for the amount of work done the bill was eminently reasonable. The Petitioner had communicated the Advocate for raising the bill inspite of Advocate accepting it was unreasonable. Petitioner had, as could be seen, in the letter dated December 18, 2008 clarified, he had no intention to avoid the Advocate. On January 7,2009 the Petitioner had clarified his stand. He was slapped with criminal prosecution. 11. Considering the over all survey of document and complaint, I find the statements recorded at the most also - 11 - 782 indicate that the agreed fees was Rs. 25,000/- which the accused (Petitioner) desired to pay. Therefore, such statement before police would hardly amount to infraction of section 420 IPC. The prosecution initiated by the Respondent no.2 will certainly fall within the bracket of the categories as specified in the Judgment of the Supreme Court in the matter of STATE OF HARYANA & Ors VS BHAJANLAL & ORS. The continuation of process will be amounting to wrecking vengeance and persecution in its effect. The efficacious remedies which the Respondent no.2 as an Advocate has, could have been equally exhausted even if criminal proceedings are co-extensive in its nature. No case or events, to suggest infraction of section 420 IPC to invite process. Indeed there is no reliability of evidence and sustainability of accusation on a reasonable appreciation of complaint petition. There - 12 - 782 is no legal evidence against the Petitioner. The facts are hazy and in tatter to accept the element of cheating. 12. The present prosecution vide Case No. 2400333/SW/2009 before the the Learned Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Bombay to the extent of Applicant-Navin Jain is quashed and set aside. K.U.Chandiwal,J