Research › Search › Judgment

Madhya Pradesh High Court · body

2003 DIGILAW 247 (MP)

Babulal Mishra v. Jethanand Bhagdeo

2003-02-05

NARAIN SINGH AZAD

body2003
JUDGMENT On petitioner's complaint registered as Criminal Case No. 1032/99, in the Court of JMFC Shahdol, the learned JMFC took cognizance for offence punishable under section 500 IPC, against one Jasandas Vaswani only on 27.9.1999 and refused to take cognizance against respondent Jethanand Bhagdeo, the legal practitioner. The petitioner's challenge to the aforesaid order in Criminal Revision No. 205/99, stood dismissed by first ASJ, Shahdol, on 3.6.2000, thus, the petitioner seeks exercise of inherent powers for a direction that cognizance be taken against the respondent also. As per photocopy of complaint filed by this petitioner, he mortgaged some land situated at village Pali with Jasandas who got the sale deed registered on 10.12.1971 instead of deed of mortgage, who, as per prevalent practice. Alongwith the sale deed one agreement was also executed by parties and as per aforesaid this agreement dated 10.12.1971, the petitioner had a right to reclaim the land on payment of amount of mortgage, within a period of two years. Thereafter, Jasandas filed an application on 9.6.1972, seeking cancellation of agreement dated 10.12.1971, and got the same cancelled whereas the petitioner did not consent for it. The petitioner filed a suit for declaration and injunction in respect of aforesaid land. On 8.1.1989, Jasandas filed his written statement. Since in written statement, false and incorrect imputations were made against petitioner by Jasandas and this respondent, who was his counsel, the petitioner moved an application under Rule 6 Order 16 of the CPC on 27.2.1999, for getting those false imputations deleted, but it was resisted by Jasandas on the ground of relevancy. Because Jasandas filed the aforesaid written statement on being advised and directed by respondent/advocate, the cognizance for offence punishable under section 500 IPC was required to be taken against respondent also, which the learned JMFC failed to do so. Because Jasandas filed the aforesaid written statement on being advised and directed by respondent/advocate, the cognizance for offence punishable under section 500 IPC was required to be taken against respondent also, which the learned JMFC failed to do so. But it is explained in TFR Magdonai v. King Emperor reported in 1920 Rangoon 345, Bhagat Singh Sethi v. Jindalal reported in AIR 1966 J. & K. 106, and Munithayamma v. Muddo Balappa reported in AIR 1955 Mysore 135, that an advocate enjoys qualified privilege under Exception 9 of section 499 of the IPC, in respect of any statement, oral or written, made by him to protect the interest of his client, provided it is not made only as malpractice, or private motive, and the good faith on the part of the advocate shall be presumed if otherwise is not proved. Since it is not alleged by the petitioner that the imputations contained in written statement of Jasandas are drafted by the respondent on account of malice, or for private motive, therefore, the learned JMFC is found to have committed no illegality in not taking cognizance of offence punishable under section 500 IPC, against the respondent advocate. In result, this petition does not merit, which is, accordingly, disallowed and rejected.