Client failed to pay fees to advocate-whether offence of cheating is made out?
The accused
applicants, already harassed couple, with trust deficit, difference of opinion in matrimonial life, though well educated, approached the complainant for legal advise. This contact was with a hope of proper
advise. Naturally, to a person professing a noble profession. The complainant, as Advocate, after hearing the parties handed draft petition for mutual divorce. There is no controversy to this aspect. The fact remains, if the couple has thereafter decided not to prosecute their controversies or discord and to have a happy married life, can it be said to be dishonest intention to approach the complainant for his
legal advise. The answer is, there could not be of dishonest intention
at initial stage. It is absurd to think, for a couple, to hatch a conspiracy, will approach an advocate making a show of difference in
their marital life and ensure the Advocate to part with his valuable knowledge which is his property to deliver by way of a divorce
petition. Basic requirement for invoking criminal prosecution is, such
intention must be shown to exist at the time of making of inducement.
Mere failure to keep promise subsequently, will not lead to cheating. There is no element by the accused-applicant to induce the complainant
by any representation to draft petition and thereafter back out.
12. Even if as the complainant says, his case squarely comes within
the parameters of Section 415 of I.P.C. the above referred factual situation illustrates the scenario, wishfully was developed by the
complainant to achieve his agenda for recovering his professional fees. He knew, being well versed in the field, how to squeeze a litigant, not familiar to court system. Resultantly, gullible litigant has faced the brunt. Reading of the complaint petition as a whole, the basic ingredients for infraction of Section 420 or 415 or 120B of I.P.C. are miserably lacking. Not acting on legal advice and not paying fees could be stretched to a civil wrong, without clamour of criminality.
Both the courts were expected to look into the legal position, peculiar
facts relating to recovery of fees and then to have adverted for appropriate order in legal frame. There should not be poverty of
thoughts.
Bombay High Court
Ou vs State Of Maharashtra & Anr on 1 August, 2013
Bench: K.U. Chandiwal
Mr.Dnyananda Sameer Nilekar & Ors. ...Petitioners
versus
State of Maharashtra & Anr. ...Respondents
Citation;2013 ALL M R (cri)3522
https://www.lawweb.in/2013/10/client-failed-to-pay-fees-to-advocate.html