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Negotiable instruments act, advocate act

(Querist) 08 January 2012 This query is : Resolved 
Dear Friends,
I am an advocate of accused in one matter of NI Act 138.
In cross examination I have raised objection that Advocate for complainant doesn't empowered to issue statutory notice because the notice is not countersigned by complainant and further there is no record to show that the Advocate for the complainant was possesses Vakalatnama of complainant while issued statutory notice which is prime and binding under NI Act 138?
Is my opinion correct or wrong? pl. help. if there present any authority pl. guide. thank you of all.
M/s. Y-not legal services (Expert) 08 January 2012
dear umesh.,

the legal notices need not to be signed by the complainant., so you can not raise this question in trial.,

you can verify that legal notice, there might be mentioned as "under the instruction of my client so and so am issuing this notice to you".. while being so your question is vague.

-tom-
DEFENSE ADVOCATE.-firmaction@g (Expert) 08 January 2012
I salute such defense advocates who dig deep in negatives.

Law has limitations since it can not provide for all the possibilities and hence power of defense is immense.

Be adamant and take this issue to logical conclusion. The advocate was not legally authorised person and hence no notice on behalf of the complainant.
M/s. Y-not legal services (Expert) 08 January 2012
untill the legal notice denied by the complainant which is sent by the advocate on behalf of him., its valid one before law.

only reason for getting the parties signature in legal notices, in future the person can not deny that. thats all.

-tom-
M/s. Y-not legal services (Expert) 08 January 2012
good evening jsdn sir,

without hand over the documents to advocate's hand [by complainant], how the advocate can issue the notice to the opposite party?

-tom-
DEFENSE ADVOCATE.-firmaction@g (Expert) 08 January 2012
To morrow the advocate can write any thing , it does not mean it is binding without proof.

To morrow some advocate can on instructions from this or that officer or minister , can it be legal without proper legal authority. NO .

For the questioner please search the citation for SC under advocates act : advocate Bhausar vs Bar council of India for which I am not able to locate now.

In this citation the SC has set aside the deciplenary action the advocate because there was no valalatnama and hence no privity of contract and hence the advocate was not responsible for mis couduct.
M/s. Y-not legal services (Expert) 08 January 2012
in court mean advocate can enter with vakalatnama, but issuing legal notice is prior to court proceedings., here how can an advocate show vakalat?

-tom-
DEFENSE ADVOCATE.-firmaction@g (Expert) 08 January 2012
You are an advocate suppose you issue a notice say on oral instructions of a client and due to variety of reasons the client may say that he has not instructed you to send the notice.

WHAT IS YOUR DEFENSE WHEN YOU ARE SLAPPED WITH PROFESSIONAL MISCONDUCT CASE BY OPPOSITE PARTY THAT YOU SENT THE NOTICE WITHOUT AUTHORITY TO HARASS AND HUMILIATE HIM /HER.
M/s. Y-not legal services (Expert) 08 January 2012
you are right., mr.jsdn., for avoid this circumstances only we just sending notice along with patry's signature.,

for that in all circumstances its mandatory?
if without party's signature mean its liable to dismissed? here author's question is that only.,

-tom-
M/s. Y-not legal services (Expert) 08 January 2012
and am not fool to issue any notice on behalf of client on the oral information., my senior have a bad experience regard this.,

-tom-
ajay sethi (Expert) 08 January 2012
the practise adopted is draft legal notice is prepared . sent to client for approval . on receiving approval from clinet legal notice is sent .

it is not necessary for legal notice to be countersigned by complainant . generally in complaint made under section 138 there is an averment made that i have issued instructions to my advocate to send legal notice . the notice was drafted as per my instructions .
Devajyoti Barman (Expert) 08 January 2012
Agreed as above...
DEFENSE ADVOCATE.-firmaction@g (Expert) 08 January 2012
Defense advocates in such circumstances ask following questions to the complainant.

1) You say instructions were issued to my advocate for issue of notice so do you have any record or proof that on the day notice was issued , he was your advocate.

2) Have you produced any proof that it is the same notice which was drafted and approved by you.

3) Can you show any proof that this the same notice which was sent to the accused.

DEFENSE POSSIBILITIES ARE IMMENSE.

related SC citaion - advocate Vasant Devlal Bhawsar v/s Bar council of India.
Nadeem Qureshi (Expert) 08 January 2012
Dear Umesh
once a client signed Vakalatnama after that the advocate can do anything in client's favor or for client benefit.
Raj Kumar Makkad (Expert) 08 January 2012
Instruction can be oral also. Advocate can send the notice even on the oral instructions of his client so there is no merit in the case of the author Umesh.

JSDN, question in the given case is that the accused received the notice allegedly sent by a lawyer on behalf of his client (may not be having his vakalatnama) demanding payment within 15 days which he ignored thus the complaint.

The accused person cannot take benefit of his own wrong. It is secondary issue whether the counsel was having instructions or not. If complainant alleges that he had given instructions then matter ends.
Raj Kumar Makkad (Expert) 08 January 2012
I have also studied the case referred by JSDN but the same is based upon opposite position. In that case a lawyer was alleged de-relinking his duty by not appearing before courts despite of having vakalatnama in his favour, For ready reference I am producing that judgment as under:


Supreme Court of India
Vasant D. Bhavsar vs Bar Council Of India & Ors. on 12 November, 1998
Equivalent citations: JT 1999 (5) SC 420, 1998 (6) SCALE 282, (1999) 1 SCC 45
Bench: S Bharucha, V Khare

ORDER

C.A.No. 2625 of 1997

1. This is an appeal against an order dated 5th October, 1996 passed by the Disciplinary Committee of the Bar Council of India on a complaint made by the third respondent against the appellant, a practising lawyer. The said Disciplinary Committee found that the appellant had misconducted himself within the meaning of Section 35 of he Advocates Act, 1961 and had acted in a manner unbecoming of a lawyer and his professional ethics. The appellant was, therefore suspended from practice for a period of two years.

2. The complaint, by the third respondent, was originally filed before the Bar Council of Maharashtra. The Disciplinary Committee thereof found the appellant guilty of professional misconduct and suspended him from practice as an advocate for a period of three years commencing 1st July, 1992. The appellant carried the matter in appeal to the Bar Council of India, which, for technical reasons, set aside the order of the Maharashtra Disciplinary Committee and remanded the matter. A period of one year having elapsed thereafter, by reason of Section 36B of the Advocates Act the matter came to be heard by the said Disciplinary Committee of the Bar Council of India. The evidence that had been led before the MAharashtra Disciplinary Committee was the only evidence that was required to be considered.

3. We do not find any discussion of the evidence in the impugned order of the said Disciplinary Committee. It is not enough to state that the evidence on record proved beyond the shadow of a doubt that the complainant had consulted the appellant and, when the appellant did not take any interest in her case, she lost it before the Prant Officer for want of documents which were in the appellants custody, being filed in support of her case and that she intended to challenge the order before the High Court and, therefore, she approached the appellant for the return of those documents again and was confronted with the demand for payment of Rs.3,000/- where upon she initiated the disciplinary proceedings against the appellant. We find, having (sic) the evidence, that it was admitted by the complainant in cross-examination that the vakalatnama that the appellant had given her "was not presented before the Circle Officer. It was also not produced be (sic) me either before the Tehsildar or the Prant Officer". In fact, the original vakalatnama was produced by the complainant from her possession and placed on the record. If the vakalatnama of the appellant had not been filed before these authorities, it is difficult to see how the appellant could have been held to be guilty of dereliction of duty for not appearing before them on behalf of the complainant. There is no documentary proof whatever that fees were paid by the complainant to the appellant. Even as to the documents which were supposed to have been handed over to the appellant for being produced before the authorities aforementioned, there is no receipt. In any case, it is difficult to see why the documents would have been handed over by the complainant to him for being produced before the authorities when his vakalatnama was not filed by the complainant before them. Our reading of the evidence leads to grave doubt about the veracity of the complainant and he benefit of doubt must go to the appellant.

4. We think that we should impress upon the Disciplinary Committees of the Bar Council that their orders in disciplinary matters should be speaking orders, they must set out the reasons for which they are passed. Where the orders are based upon evidence as is usually the case with complaints against advocates, there must be some analysis of the evidence and the conclusion must be based on such analysis. It is not enough to state the conclusions without indicating the material on the record upon which such conclusions (sic) based.

5. The appeal is allowed. The order under appeal is set aside. The complaint filed by the third respondent is dismissed.

C.A. No. 2626 of 1997

6. Having regard to the conclusion we have reached in the above appeal, this appeal against the review petition does not survive. It is disposed of accordingly.
M/s. Y-not legal services (Expert) 08 January 2012
thank you makkad sir.,

-tom-
V R SHROFF (Expert) 08 January 2012
Adv Umesh,
There is no Q of VP 4 issue of notice.
Imp fact that can examine is
1] do compl aware the contents of notice 2] do ur adv signed notice in ur presence, as it do not bear compl sign?
3] contradict compl statement with contents of notice.
4] what proof address of notice is true??
5] reply of notice??
your opinion is SORRY. "NOT CORRECT."
Shonee Kapoor (Expert) 08 January 2012
Righlty explained by Makkad Sir.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh (Expert) 09 January 2012
No need to add any more.
DEFENSE ADVOCATE.-firmaction@g (Expert) 09 January 2012
Such discussions add depth to the knowledge and such instances come every day in courts. And I am a party for such controvery in many cases even at the cost of annoyance to the court.

Mr Bhawsar is my personal friend after his explusion was cancelled he has become a regular of in persons litigant at sc.

The great service he has done for advocate friends apart from getting his suspension over ruled is following observation by the SC.


There is no documentary proof whatever that fees were paid by the complainant to the appellant.
DEFENSE ADVOCATE.-firmaction@g (Expert) 09 January 2012
Because of advocate BHAWSAR CASE any advocate can come out of any complaint against him before bar council on two points.

1) Whether vakalatnama was given.

2) Whether fees were paid.

This site as well as other similar sites are full of complaints against advocates by the unsatisfied litigants and this citation will be of great help .
M V Gupta (Expert) 10 January 2012
A very interesting discussion and an important one for all of us. Vakaltnama is not obtained by Advocates for issue of notices under instructions of the client.If the client is an educated person, we generally send draft notice to him for approval and after he clears it we issue the notice. In many cases the Advocates do not follow the above practice. but an advocate will not be able to issue notice with so many details without first obtaining the copies of the documents from the client. this coupled with the payment of fees for issue of the notice should be conclusive to establish that the notice was issued under instructions of the client. Further it is always advisable to mark a copy of the notice to the client Nevertheless Advocates should take certain precautions before issuing the notices to avoid complaints from dissatisfied clients.
Raj Kumar Makkad (Expert) 15 January 2012
I endorse the views of Gupta.
Advocate. Arunagiri (Expert) 15 January 2012
Obtaining vakalatnama for sending notice is not necessary.

Obtaining the signature in the notice, is not mandatory, but, it is advisable. It is my practice to obtain the signature of the client in my office copy.
R Trivedi (Expert) 16 January 2012
1. In NI Cases this is a worthy defense. Just check the of Vakaltnama date, it is certainly later date then notice. So in principle our good friend was not officially authorized at the time of issue of notice. Act talks of notice by payee or holder etc..

2. It is well settled that in NI cases two notices cannot be given (this is possible either the cheque is bounced multiple times or to avoid time bar with the first notice.). Second notice fails.

3. Now in general no one sends the notice immediately on receipt of bounced information, they take some time and generally people file cases just in time to avoid time bar.

4. So if date calculations helps you then in your defense admittedly create a false notice by any lawyer from complainant side, this will also be unsigned. and of course will be denied by complainant, he cannot be choosy.

5. Submit to the court that this is the distinct possibility and second notice must fail. This way you can demonstrate that notice either must be signed by complainant or counsel should have authority in writing.

There is no ruling in NI cases that oral instructions notice is acceptable. Push it hard. Regards... advocate.dma@gmail.com
R Trivedi (Expert) 20 May 2012
Advocate Umesh,

Any further development on this issue ?
DEFENSE ADVOCATE.-firmaction@g (Expert) 20 May 2012
Yes Umesh tell for benefit of all the out come of your pleadings.

Last month we have won three cases under NI act against MIGHTY INTERNATIONAL BANKS on vakalatnama issue.


They just withdrawn the cases without further prosecution ., on advice of the respective advocates.
R Trivedi (Expert) 30 June 2012
Advocate Umesh,

Any further development on this issue ?
Raj Kumar Makkad (Expert) 30 June 2012
I do agree with the view of Trivedi especially in the light of already cited verdict of Hon'ble apex Court.
Guest (Expert) 01 July 2012
Certainly, the thread has attracted very interesting and useful discussion.

But, it is certain that minute and detailed instructions cannot at all be expected from a layman client. Had he been so knowledgeable about the nitty gritty of the law, he would not come to any lawyer simply for sending a notice to the other party.

NOW THE QUESTION ARISES, whether the law recognizes notice issued only through an advocate or the payee himself can also send a notice directly to the defaulter? Proviso (b) below section 138 does not specify that the notice should only be by an advocate. The provisions of the said proviso simply states, "the PAYEE or the HOLDER IN DUE COURSE of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque.

Experts are requested to express their learned views on the aforesaid point of issue.

@ Shri R Trivedi,
As regards your point, "there is no ruling in NI cases that oral instructions notice is acceptable," I may point out that the LAW ALSO DOES NOT PROVIDE ruling anywhere that in NI cases only written instructions of the client to the advocate for issue of notice are acceptable.
R Trivedi (Expert) 01 July 2012
Mr Dhingra,

Pl refer to S.93 and 138 (b) of NI Act. The point is that the statue calls for a specific need for notice and contents. In fact S.93 is very specific on the point of who can give notice.

An unauthorized advocate cannot fall in the category of payee or holder or even representative.

Even for example in Bhausar case as stated above by JSDN, the advocate was given benefit that there was no vakalatnama, so no vakalatnama, no disciplinary action, so no vakalatnama no authority.
Guest (Expert) 01 July 2012
Dear Shri Trivedi,

Your clarification does not seem to be right in spirit of my query.

For your kind information, section 93 is also silent about any written instruction to the advocate by the holder of the instrument for issue of notice to the concerned parties.

I have not mentioned anywhere about disciplinary action against the advocate in the absence of vakalatnama or written instruction of the client (holder of the instrument). Rather, if you review my earlier reply, you can find my broader view that even if oral instructions of the client are there (without vakalatnama) for issue of notice, the advocate cannot be held liable for issue of notice, unless specifically proved that the notice was issued not in conformity with the verbal instructions of the client.

My other point for discussion was, whether only the advocate under instructions of his client or even the affected party himself can issue the notice in any type of the case?
R Trivedi (Expert) 01 July 2012
-- Criminal cases per say do not require notice unless it is specified by some act. For example S.138 of NI Act specifies need for notice, but for S.420 of crpc, one need not give notice to accused.

-- In general courts side with advocates for simple reason that advocates are part of judicial systems and small lapses here and there are ignored.

-- Generally a notice by advocate (especially in civil cases) without proper written authority is admitted (oral instruction) is accepted, but that is in absence of any statue and also complainant will come forward and say that he/she had given oral instruction to advocate.

-- In case of NI Act, there is a specific mention that who can give the notice and to whom it can be given. 138(b) further makes it mandatory that it must be in writing. In fact if you read S.93 and S.94 put togther, it makes it quite clear that the payee or holder must give the notice to drawer / authorized person of the drawer. So S.93/94 and 138(b) clubbed together amply makes it clear: That the payee or holder must give the notice in writing to drawer/drawer's authorized representative.

-- Now any authorized agent of payee can also give the notice, but advocate without authority obviously cannot fall in that category ?

-- Bhausar example was cited to demonstrate that without Vakalatnama apex court overruled the disciplinary action against the advocate. So the point is prosecution cannot have best of both the words.
Guest (Expert) 01 July 2012
Thanks Trivedi ji for your clarification. That confirms my views.
ashutosh mishra (Expert) 01 July 2012
The discussion may end up with a question that can any one write or execute a POA to lodge an FIR??????
M V Gupta (Expert) 03 July 2012
No need to execute POA for lodging FIR with the Police. Under CrPc any one who is witness to the incident or aware of the incident can lodge FIR with Police.
ashutosh mishra (Expert) 03 July 2012
Great sir!A great answer.
R Trivedi (Expert) 03 July 2012
-- I will differ partly. Anyone who is witness to an event can file the FIR, subject to it is crime against state, because in that case he is the witness.

-- FIR based on private complaint has to be filed by the aggrieved person only, no POA can be given for this.

-- Anyone aware of an event cannot file the FIR, because awareness can come by any source, yes such person can ensure investigation and subsequent to that the FIR/complaint can be lodged. Because the evidence of such person would fail on account of hearsay.


Guest (Expert) 03 July 2012
Dear Shri Trivedi,

Don't you feel that with your present post, the matter is getting sidetracked from the original isue of your own question? You would like to appreciate that all matters and circumstances are not alike.

What I feel, your own assertion, "-- FIR based on private complaint has to be filed by the aggrieved person only, no POA can be given for this," goes totally against your own objection raised in the court in the NI 138 case, as your question states, "in cross examination I have raised objection that Advocate for complainant doesn't empowered to issue statutory notice because the notice is not countersigned by complainant and further there is no record to show that the Advocate for the complainant was possesses Vakalatnama of complainant while issued statutory notice which is prime and binding under NI Act 138?"

I hope, you would not like to get any more controversy to arise with specific reference to your original query. You may probably like to remember, your query was not general in nature, but was specific to the 138 NI Act.
R Trivedi (Expert) 03 July 2012
I agree that issue got side track due to reference made to FIR, but there is no contradiction. Because giving notice and FIR are two different aspects. legally speaking, if I am permitted, I can summarize as follows, restricting myself to NI Act.


1. Notice against NI S.138 can be given by payee/holder, by advocate of payee under written authority, by an agent of payee under authority.


2. Under NI Act, if an advocate sends the notice without written authority, it can be questioned, and most likely it should go in favour of accused. Advocate Umesh has to further comment on the status of his query.


3. Under NI Act for an individual or firm the complaint can be filed by an existing GPA holder under an authority letter on behalf of principal. In matter involving proprietorship firms or individual being the holder, an authority letter or SPA cannot be issued to file the complaint just to anyone (if there is no existing GPA holder who has carried out relevant transactions with the accused.), the examination under S.200 of main complainant is must if there is no existing GPA holder. If there is a non GPA holder employee conversant with the transaction, then he can become the witness but he cannot become the complainant on behalf of his principal.


4. Under NI Act for a firm or company complaint can be filed by an authorized representative. Courts are quite flexible with respect to cases filed on behalf of firms/companies.
Guest (Expert) 03 July 2012
Sorry Trivedi ji,

I differ with your views on part of point #1 and the whole of point #2 of your reply about written authority. Unless controversy is raised by the client of the advocate in the absence of written authority or if the prosecution lawyer himself is incapable to handle the case properly, even if questioned by defence, that is not likely to go in favour of the accused.
ashutosh mishra (Expert) 03 July 2012
I did not know it would turn so interesting again when i made my post.

Legal artificial entity is only company incorporated and not partnerships or proprietorship firms.

What a judicial person can legally do can be done even by his duly authorised agent unless
law expressly bars such agency creation.


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