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2011 DIGILAW 613 (AP)

Chilkapati Madhu Babu v. Ghanta Venkateswara Rao

2011-08-09

R.KANTHA RAO

body2011
Judgment : 1. This Criminal Appeal is filed against the order of acquittal dated 30-09-2010 passed in CC.No.1572 of 2009 by the XIV Metropolitan Magistrate, Cyberabad, LB Nagar, Ranga Reddy district, by the judgment in CC.No.1572 of 2009, Chilakapati Madhu Babu, an Advocate filed a complaint against the accused, Ghanta Venkateswara Rao, under Section 138 of the Negotiable Instruments Act, alleging that a cheque for an amount of Rs.40,000=00 issued in his favour towards the charges of the services rendered by him to the accused/first respondent, who was his client was dishonoured and that the said cheque was issued for discharging legally enforceable debt/liability. 2. The offence was tried by the learned XIV Metropolitan Magistrate, Cyberabad, at LB Nagar, Ranga Reddy district, during the course of which, PWs 1 and 2 were examined and Exs.P-1 to P-11 were marked on behalf of the prosecution, whereas no oral or documentary evidence was let-in on behalf of the accused and the accused himself did not offer himself to be examined as a witness. 3. Heard Smt. N (P) Anjana Devi Satyanarayana, the learned counsel appearing for the appellant-complainant, Sri K. Ramesh Reddy, the learned counsel appearing for the Respondent No.1-Accused and the learned Additional Public Prosecutor representing the State. 4. The short facts relevant for considering the appeal may be stated as follows : The respondent No.1 – accused had a dispute with one Mr.V.N. Goud in connection with purchase of certain house plots in Kankadurga Nagar near Hyderabad-Vijayawada Highway. According to the respondent No.1 he having agreed to purchase 56 plots for an amount of Rs.56 lakhs, paid an advance of Rs.15 lakhs but he was unable to pay the remaining balance of sale price and that the respondent No.1 returned the agreement to Mr.V.N. Goud and gave no objection to him in writing to sell plots to the third parties. It is stated that in turn Mr.V.N. Goud agreed to refund Rs.15 lakhs as advance paid by the first respondent. As the amount was not refunded, there was a dispute between the respondent No.1 and Mr.V.N.Goud. The respondent No.1 approached the appellant, who is an advocate for legal advice and the appellant suggested him to file a case alleging commission of offence of cheating and he took an amount of Rs.10,000/- from the complainant for giving the said opinion. As the amount was not refunded, there was a dispute between the respondent No.1 and Mr.V.N.Goud. The respondent No.1 approached the appellant, who is an advocate for legal advice and the appellant suggested him to file a case alleging commission of offence of cheating and he took an amount of Rs.10,000/- from the complainant for giving the said opinion. At that time the appellant demanded Rs.one lakh from the respondent No.1 as his fee for conducting the entire case including filing of civil suit. Thereafter, the respondent No.1 went away and did not turn up for about one month. On 28-10-2003 the first respondent made a phone call and demanded refund of half of the consultation fees. The appellant refused to return consultation fee on the ground that the respondent No.1 had already taken legal advice from him by discussing hours together, consuming lot of valuable time of the appellant and also that he got drafted the required report to be lodged with police.Subsequently, it is stated that on 16-11-2003 the respondent No.1 approached the appellant and informed that he has proof in the form of receipt in respect of payment of an amount of Rs.5 lakhs to Mr. V.N. Goud and therefore, Mr.V.N. Goud returned him Rs. 5 lakhs in instalments and refused to return back balance amount of Rs.10 lakhs. The appellant asked the respondent No.1 to bring some documentary evidence about the payment of Rs.10 lakhs but the respondent No.1 could not get the evidence of payment of the said amount to Mr.V.N. Goud. Then it is stated that the appellant asked the accused to pay Rs.one lakh towards his fee to proceed with the case and to create evidence and to make a detailed complaint. When the accused expressed his inability to pay the fees of Rs.one lakh, the appellant suggested to pay by means of cheque along with covering letter. Having agreed, the respondent No.1 issued a cheque drawn on Vijaya Bank Limited, Saroornagar branch along with covering letter on 17-11-2003 for an amount of Rs.40,000/- and promised to pay the balance of Rs.60,000/- immediately after the matter is settled. The first respondent requested the appellant to present the cheque for collection after one week. Having agreed, the respondent No.1 issued a cheque drawn on Vijaya Bank Limited, Saroornagar branch along with covering letter on 17-11-2003 for an amount of Rs.40,000/- and promised to pay the balance of Rs.60,000/- immediately after the matter is settled. The first respondent requested the appellant to present the cheque for collection after one week. The appellant prepared detailed report to be lodged with the police and got it typed at DTP center and made 20 xerox copies at his own cost to be sent to the higher authorities of police, Heads of the State through registered post with acknowledgement due. Thereafter, some how or the other, on 18-11-2003 the appellant called the first respondent to his chambers and asked him to make a phone call to Mr.V.N. Goud by giving the first respondent some instructions and also prepared him mentally to deal with queries to be posed against Mr.V.N. Goud through phone. On 18-11-2003 the accused followed his advice and made those queries from the appellant’s chambers, using the appellant’s speakerphone against Mr.V.N. Goud and the appellant recorded that conversion in his Micro Cassette Recorder for about twenty minutes. Thereafter, a memorandum of understanding Ex.P5 came to be executed between the first respondent and Mr.V.N. Goud. The complainant claims to have dictated the terms of memorandum of understanding to PW-2. Subsequently it was typed and signed by the parties as well as elders and well-wishers. In view of the said compromise, according to the appellant, the respondent No.1 got extra benefit of Rs.96,450/- approximately. Thereafter, while the appellant asked for fees, the accused was taking time on one ground or the other but ultimately did not pay the amount. The appellant presented the cheque for collection on 15-12-2003 under the instructions of respondent No.1 but the same was dishonoured on 16-12-2003. On 19-12-2003 the appellant made a phone call to the first respondent and asked him about dishonour of cheque bearing No.220891 dated 17-11-2003 which was issued on Vysya Bank Limited, Saroornagar and also for payment of remaining balance amount. The first respondent did not pay the same and challenged the appellant to do whatever he likes. Again the appellant made another phone call to the first respondent whereupon it is stated that the first respondent threatened him with dire consequences and warned that he would see his end if he makes any further phone calls. The first respondent did not pay the same and challenged the appellant to do whatever he likes. Again the appellant made another phone call to the first respondent whereupon it is stated that the first respondent threatened him with dire consequences and warned that he would see his end if he makes any further phone calls. Thereafter, on 6-1-2004 the appellant issued a legal notice to the first respondent calling upon him to pay the amount covered by cheque i.e., Rs.40,000/-within 15 days from the date of receipt of the legal notice and also stating therein that on his failure to pay the amount he would be constrained to take criminal proceedings under Section 138 of the Negotiable Instruments Act and also under sections 406 and 420 of IPC. The same was served on the accused-respondent No.1 on 08-1-2004 but the respondent No.1 did not pay the amount nor did he give any reply. Thereafter, the appellant filed complaint against the respondent No.1 under section 138 of the Negotiable Instruments Act in the Court of XIV Metropolitan Magistrate, Cyberabad, which was tried and disposed of as stated hereinabove. 5. The learned trial Court held that there is no dispute about the fact that the first respondent issued the cheque bearing No. 220891 dated 17-11-2003 to the appellant and also on facts and evidence held that the cheque was dishonored when it was presented for collection. But acquitted the first respondent on the ground that the cheque was not issued for discharge of any legal enforceable debt or other liability. Against the said order of acquittal, the complainant filed the present criminal appeal. 6. Thelearned counsel appearing for the appellant would submit that the appellant, who is an advocate rendered legal services for the respondent No.1 and he is entitled for the charges for the services rendered, the respondent No.1 – accused issued the cheque towards payment of charges for the legal services rendered by the appellant, and therefore, it cannot be said that the cheque was not issued to satisfy any legally enforceable debt or liability. According to the learned counsel even it is held that there is no legally enforceable debt, the issuance of cheque is for satisfaction of the other liability and therefore, the trial court committed an error in acquitting the accused. According to the learned counsel even it is held that there is no legally enforceable debt, the issuance of cheque is for satisfaction of the other liability and therefore, the trial court committed an error in acquitting the accused. The learned counsel therefore pleads to reverse the finding of acquittal recorded by the trial Court into conviction and remit the matter to the trial court for imposing appropriate punishment. 7. The learned counsel appearing for the respondent No.1 on the other hand would submit that except advising the respondent No.1 to file a complaint for the offence of cheating nothing had been done by the appellant who is an advocate and for the said legal advice, the respondent No.1 paid an amount of Rs.10,000/- to him, since no other service was rendered by the appellant, the learned trial court according to the learned counsel appearing for the respondent No.1 is perfectly justified in acquitting the respondent No.1 on the ground that the cheque was not issued towards the satisfaction of any legally enforceable debt or liability. 8. Here is a case, wherein the appellant did not file any civil or criminal proceedings before any Court of law. The appellant claims that he prepared the draft of Ex.P5 memorandum of understanding. According to the appellant Ex.P5 was drafted by PW-2 to his dictation before it was typewritten. But PW-2 did not support the version of the appellant. In the cross-examination, PW-2 stated that he does not know the first respondent and he was not present when PW-1 gave complaint to the police. Therefore, except the self-serving testimony of the appellant, who was examined as PW-1, there is no evidence to show that the respondent No.1 agreed to pay an amount of Rs.one lakh to him towards his fee. The contention raised by the learned counsel appearing for the respondent No.1 is that the appellant himself suggested the respondent No.1 to issue a cheque for future services to be rendered by the appellant. The averments of the complaint also disclose that even before filing any complaint or civil suit or instituting any legal proceedings, the appellant induced the respondent No.1 to issue a cheque for Rs.40,000/-. Therefore, it has to be understood that if at all, there is any agreement, it is with regard to future services but not in relation to the services already rendered by him. Therefore, it has to be understood that if at all, there is any agreement, it is with regard to future services but not in relation to the services already rendered by him. For giving legal advice the first respondent admittedly paid an amount of Rs.10,000/- to the appellant. The appellant failed to prove that either he drafted the report lodged by the respondent No.1 with the police or the memorandum of understanding entered into between the respondent and Mr. V.N. Goud. Subsequently however the respondent No.1 withdrew the report lodged with the police after the matter was settled between him and Mr.V.N.Goud which does not mean that due to the role played by the appellant or mediation done by him the matter resulted in compromise. In fact there is no such evidence on record to the said effect. 9. The learned counsel appearing for the appellant relied on a decision in T.M. XAVIERKUTTY V/s. V.S. SUNNYMON AND ANR (2006 (1) DCR 198 KERALA)., wherein the Kerala High Court held in para No.6 as follows : Now, the question that remains to be considered is whether Ex.P-1 cheque was issued in discharge of a legally enforceable debt as contemplated under Section 138 of the Act. As per Section 43 of the Act, a negotiable instrument made without consideration or for a consideration, which fails, creates no obligation of payment between the parties to the transaction. The evidence adduced by the appellant would show that the first respondent had issued Ex.P-1 cheque in favour of the appellant for conducting the case before the Motor Accidents Claims Tribunal, Kottayam. There is also no complaint with regard to the work done by the appellant. After having enjoyed the fruits of his service, the first respondent-accused cannot now retract and say that he had not issued Ex.P-1 cheque. Ex.P-1 cheque was issued by the first respondent in favour of the appellant in discharge of a legally enforceable debt. The appellant has succeeded in proving the case against the first respondent. 10. After having enjoyed the fruits of his service, the first respondent-accused cannot now retract and say that he had not issued Ex.P-1 cheque. Ex.P-1 cheque was issued by the first respondent in favour of the appellant in discharge of a legally enforceable debt. The appellant has succeeded in proving the case against the first respondent. 10. The learned counsel further relied on a decision in DEBTS RECOVERY TRIBUNAL, ADVOCATES ASSSOCIATION OF A.P. V/s. DEBTS RECOVERY TRIBUNAL, KARNATAKA AND A.P. BANGALORE AND ORS (2002 (2) ALD-167 (DB))., wherein it is held as follows : Advocates Association filed writ petition challenging the circular issued by public sector banks fixing the fees for the advocates appearing on behalf of the banks before Debt Recovery Tribunals, basing on the A.P. Advocates Fees Rules, the Division Bench held that the said rules both under Article 227 of the Constitution of India and under section 34 (1-A) of the Advocates Act makes it abundantly clear that what the High Court laid down was as to how the costs would be calculated against an adversary if the costs are imposed against a party at the end of a proceedings. Therefore, these rules govern the Courts rather than the Advocates. The above judgments being rendered in relation to entirely different fact situations are not relevant to the facts of this case. 11. In the instant case, except giving legal advice and receiving an amount of Rs.10,000/-towards fees for such advice there is no evidence on record to show that the appellant, who is an advocate rendered any other services to the respondent No.1 and therefore, he is not further entitled to claim any fees. There is also no evidence to show that there was any agreement between the appellant and respondent No.1-accused for payment of fee of Rs.one lakh. In the absence of any such evidence relating to the agreed fees, it cannot be said that the impugned cheque was issued by the respondent No.1 towards discharge of any legally enforceable debt or liability. There is also no evidence to show that there was any agreement between the appellant and respondent No.1-accused for payment of fee of Rs.one lakh. In the absence of any such evidence relating to the agreed fees, it cannot be said that the impugned cheque was issued by the respondent No.1 towards discharge of any legally enforceable debt or liability. As rightly contended by the learned counsel appearing for the respondent No.1, the evidence on record clearly indicates that the cheque was issued by the respondent No.1 in favour of the appellant on persuasion by the appellant for the services to be rendered in future by the appellant and as such, there was no existing any legally enforceable debt or liability on the date of issuance of cheque by the respondent No.1. The trial Court, therefore, rightly recorded the order of acquittal and the order impugned does not call for any interference by this Court. The criminal appeal is, therefore, dismissed at the stage of admission.