IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD MARCH 2010 / 12TH PHALGUNA 1931 Crl.MC.No. 2778 of 2008(B) -------------------------------------- [CC.NO.610/2007 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KATTAKADA] .................... PETITIONER/ACCUSED: ---------------------------------- VRINDAKUMARI, P.K.MANA, MULAYAMKODE, KATTAKKADA, THIRUVANANTHAPURAM. BY ADVS. MR.RAM MOHAN.G, MR.G.P.SHINOD, MR.MANU V. RESPONDENTS/ STATE & COMPLAINANT: ------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. 2. G.CHRISTOPHER, S/O.GEORGE, ADVOCATE, RESIDING AT BETH-ESDA, KATTAKKADA, THIRUVANANTHAPURAM. R1 BY PUBLIC PROSECUTOR MR. I.B. PRAMOD, R2 BY ADV. MR.ABRAHAM MATHEW (VETTOOR). THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/03/2010,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.M.C.NO.2778 OF 2008 ------------------------------------------ Dated 3rd March 2010 O R D E R Petitioner is the accused and second respondent, the complainant in C.C.610/2007 on the file of Judicial First Class Magistrate, Kattakada. Second respondent, an Advocate practicing at Kattakada lodged Annexure-A complaint against the petitioner alleging that she committed offence under Section 420 of Indian Penal Code, it was taken cognizance by the learned Magistrate. Petition is filed under Section 482 of of Code of Criminal Procedure to quash the same. 2. Learned counsel appearing for the petitioner and learned counsel appearing for second respondent were heard. Crmc 2778/08 2 3. Allegation in Annexure-A complaint is that while there were disputes between petitioner and her husband Livingston Bright petitioner approached second respondent advocate representing that she had no money to contest the case and promised that she will pay 15% of the amount received from her husband and believing her representation second respondent appeared for her before Judicial First Class Magistrate-II, Neyyattinkara, wherein she had filed a complaint alleging offences under Sections 323, 324, 307 and 498 A of Indian Penal Code against her husband and when at the influence of the her husband, police submitted a report deleting offence under Section 307 of Indian Penal Code, second respondent raised a contention Crmc 2778/08 3 that further investigation for the said offence is to be conducted and it was further investigated and final report was submitted alleging commission of an offence under Section 307 of Indian Penal Code, pending before Assistant Sessions court, Neyyattinkara as S.C.749/2004. It is contented that second respondent appeared for the petitioner before Family court, Thiruvananthapuram in O.P.1578/2002 filed by her husband as well as O.P.387/2003 filed by the petitioner for return of gold ornaments and dowry and also in M.C.251/2003 filed by her claiming maintenance and when all these cases were pending, at the intervention of second respondent there was settlement of the disputes and the case was settled on receipt of Rs.3,00,000/- by the petitioner Crmc 2778/08 4 and though as per the previous agreement second respondent is entitled to get a fee of Rs.45,000/- without paying that fee petitioner changed the vakalath and entrusted the case to another counsel and thereby committed an offence under Section 420 of Indian Penal Code. 4. An advocate is not entitled to enter into a contract with his client to appear in the case for the client on an agreement that client shall pay any percentage of the amount which may ultimately be received by the client. Even if there is an agreement it is illegal and against public policy. That exactly is the case of the second respondent in Annexure-A complaint. Petitioner is disputing any such agreement. There is no written agreement. Crmc 2778/08 5 It is the case of the petitioner that whatever fees was payable was paid by the petitioner. 5. On going through the allegations in Annexure-A complaint, the only case is that, in spite of the agreement to pay 15% of the amount, which the petitioner would receive from her husband, she did not pay the same and entrusted the vakalath to another counsel. Even if the allegations are true, it will not constitute an offence under Section 420 of Indian Penal Code. To attract an offence under Section 420, there should be inducement or representation. There should be an intention to cheat, when that inducement or representation was made. Even as per Annexure-A complaint there is no allegation that petitioner had an intention Crmc 2778/08 6 to cheat at the inception when she allegedly entered into an agreement with the second respondent or when second respondent was asked to appear for her and to contest the case on her behalf. At best, the allegation would only show that after receiving the amount under a settlement with the husband, petitioner changed the vakalath, without paying the agreed fees. That will not constitute an offence under Section 420 even if, allegations are accepted. In such circumstances, continuation of the proceedings is only an abuse of process of the court and hence, the cognizance taken can only be quashed. Petition is allowed. C.C.610/2007 on the file of Judicial First Class Magistrate, Kattakada is quashed. Before parting with Crmc 2778/08 7 the case the disturbing has to be deprecated. From Annexure-3 complaint it is clear that the misconduct should be treated seriously by the Bar council. Learned counsel appearing for the petitioner submitted that a complaint was already filed and is pending before the Bar council. It is for the Bar council to treat such complaints seriously and take appropriate action in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE. uj.