Cheque issued for discharge of legal liability held liable.

JUDGMENT: This appeal is filed by the complainant in S.T.No.926 of 1995 on the file of the Judicial First Class Magistrate’s Court-I, Kottayam.

2. The appellant filed the complaint alleging that the accused _ first respondent herein committed offences punishable under Secs.138 and 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”). According to the appellant, the first respondent failed to pay the amount covered by Ex.P-1 cheque, which was issued in discharge of a legally enforceable debt, in spite of the notice served on him. The trial Court took cognizance of the offence. On the side of the appellant, himself and another witness were examined as P.Ws.1 and 2 respectively and Exs.F-1 to F-7 were produced. No oral or documentary evidence was adduced on the side of the defence. When questioned under Sec.313, Crl.P.C., the first respondent denied having issued Ex.P-1 cheque in favour of the appellant. After trial, the Court below found that the appellant failed to prove that Ex.P-1 cheque was issued by the first respondent in discharge of a legally enforceable debt as per Sec.138 of the Act and by the impugned judgment acquitted the accused under Sec.255(1), Crl.P.C. Aggrieved by the above judgment, the appellant has filed this appeal.

3. Learned counsel appearing for the appellant submits that the finding entered and the conclusion arrived at by the trial Court are against facts and law. Counsel also submits that the trial Court went wrong in finding that the appellant _ complainant is not entitled to any legal fee other than the fee prescribed by the High Court of Kerala as published in the Kerala Gazette No.29, dated 22.7.1969 under Notification No.B1-80/61/D1, dated 7.3.1969.

4. The case of the appellant is that he is a practicing lawyer and the first respondent who was his client had entrusted with him a case to be conducted before the Motor Accidents Claims Tribunal, Kottayam and Ex.P-1 cheque for Rs.1,788 was issued by the first respondent towards professional fee for conducting the case. It is the further case of the appellant that after having conducted the case, he presented the cheque for encashment and the same was dishonoured as per Ex.P-2 memo dated 20.2.1995. On receipt of Ex.P-2 memo, the appellant caused a lawyer’s notice to the first respondent which was received by him and in spite of receipt of notice, the first respondent did not pay the amount covered by the cheque. It was under the above circumstances that the appellant filed the complaint.

5. Even though the trial Court found that Ex.P-1 cheque was signed by the first respondent and that the appellant had duly presented the cheque for encashment, on the basis of the case set up by the defence, the trial Court found that the appellant failed to prove that he was entitled to get an amount of Rs.1,788 towards professional fees as the rules regarding professional fees do not prescribe such high fees. This Court is of the view that the trial Court committed serious error in accepting the case set up by the defence. Rule 37 of the rules regarding fees payable to advocates clearly states that nothing in these rules shall be deemed to affect any agreement between an advocate and his client regarding fees. Apart from the above rule, it is categorically held in the decision reported in United India Insurance Company Limited v. Padmini Amma, 1986 K.L.T.86, that the rules regarding fees payable to advocates framed by the High Court as per B1-80/61/D1, dated 7.3.1969 relate to fees payable to legal practitioners in the High Court and in the Subordinate Court s only and will not apply to tribunals as such. Further, there was no dispute regarding the signature in Ex.P-1 cheque.

6. 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 Sec.138 of the Act. As per Sec.43 of the Act, a negotiable instrument made without consideration or for a consideratio

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