D.o.F:31/10/2009
D.o.O:10/6/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.243/09
Dated this, the 10th day of June 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
Narayanan Nair P,
Teacher, B.A.R.HS.S Bovikkanam, : Complainant
Muliyar,Kasaragod.
(Adv.K.Gopakumar,Kannur)
Ravikumaran Nair, Advocate & Notary Public, : Opposite party
Pallam Road, Kasaragod.
(IN PERSON)
ORDER
SRI.K.T.SIDHIQ,: PRESIDENT
In short case of complainant is as follows:
Complainant engaged opposite party, who is an Advocate by profession to file a criminal complaint against one Ramesh Nambiar who indebted to complainant a sum of ` 30,000/-. According to the complainant the cheque issued by Ramesh Nambiar towards the discharge of a said debt has been dishonoured for want of sufficient fund by the bank when it is presented for collection. Hence he engaged the opposite party to take appropriate legal proceedings against the said Ramesh Nambiar. Accordingly the opposite party issued lawyer notice and subsequently filed criminal complaint before the judicial First Class Magistrate Court Kasaragod. Later the said case is made over to JFCM II and there it is refiled as CC.97/08. But when the case is called in the said court on 25/3/08 the opposite party did not appear before the court nor did he make any arrangement to represent the matter. Hence the case adjourned to 31/3/08 on that date also nobody represented and the case adjourned to 8/4/08 with notice to complainant’s counsel ie opposite party. On 8/4/08 also neither the opposite party nor anybody appeared in the case and the case then adjourned to 18/4/08. On that day also no one represented the complainant. Again the case adjourned to 24/4/08 on that day also opposite party did not appear before the court. Hence the case adjourned to 29/4/08, on 29/4/08 also nobody represented the complainant and hence the case is dismissed and the accused is acquitted. According to complainant he was regularly making enquiry about the case and also about the necessity of his physical presence before the Court. On all occasion opposite party told him that he needs to appear on the day of trial. The opposite party has collected appearance fee from him at the time of filing the complaint. Apart from that his mobile number was also noted by opposite party. Opposite party neither informed him about the case nor represented him before the court. Whenever enquired with the opposite party he told that the case is still on the file and warrant is pending against accused. But for months whenever he enquired about the case opposite party did not even inform the date of case. Hence on enquiry made through his friends complainant came to know that the case is dismissed much earlier. One of a relative who enquired about it with opposite party was threatened by the opposite party. Due to the act of opposite party complainant had both monetary loss and mental agony. Opposite party committed deficiency in service rendered by him. He was not aware about the dismissal of the complaint even after one year. Hence alleging deficiency in service complainant filed this complaint for necessary relief.
2. Opposite party appeared in person and filed his version. According to him he had conducted CC1187/05 on the file of JFCM Court Kasaragod as it was entrusted by one Valsala Kumari Devi W/o Narayanan Nair. The complainant was not having any acquaintance with him. Aforesaid ValsalaKumariDevi introduced the complainant and told that a cheque case has to be filed, the complainant in this case as the complainant. Since her husband’s name is also Narayanan Nair, and the present complainant is a fictitious complainant. In fact the cheque was issued to the husband of Valsala Kumari and since he was in Gulf the present complainant was implicated as the complainant and during the course of trial the complainant told him that he is not the proper person and he did not appear properly in court. He has not paid any amount as stated in the complaint. Opposite party had conducted the case for 3 years and taken steps against the accused Rameshan Nambiar several times but he did not appear and at last the above Valsala Kumari told him that no further proceedings are necessary and directed him to take back the cheque and he handed over the cheque to the above said Valsala Kumari Devi and steps were taken against the above said Rameshan Nambiar and warrant was ordered. But neither the complainant nor above said Valsala Kumari Devi did co-operate with the service of warrant when the accused was in station for the marriage of his sister and since the complaint was fictitious the complainant was also not interested and that he has conducted the case for 3 years and there is no deficiency in service as alleged by the complainant and therefore the complaint deserves a dismissal.
3. Complainant filed proof affidavit in support of his claim and Exts.A1 to A5 marked. He faced cross examination by opposite party. On other side opposite party himself filed affidavit in support of his case and Ext.B1 marked. He was cross examined by counsel for complainant. Both sides heard and the documents perused.
4. The points to be settled in this complaint are
1. Whether there is any deficiency in service on the part of opposite party?
2. If so what order as to relief and cost.
5. For the sake of brevity both points are discussed together.
Ext.A1 is the copy of the order in CC 97/08 of JFCM II Kasaragod. Ext.A2 is the copy of the complaint lodged by the opposite party against the complainant before the Kasaragod Police and Ext.A3 is the copy of FIR in the above matter and FI statement of Ext.A3 is marked as Ext.A4 . Since the police did not take any action on Ext.A3 opposite party filed a complaint before Magistrate Court and copy of the complaint filed by opposite party against the complainant Valsalakumari Devi and M.P.Raveendran before the JFCM Kasaragod is marked as Ext.A5 . On the side of opposite party opposite party filed affidavit and the copy of the proceedings note in CC 97/2008 of JFCMII Kasaragod is produced as Ext.B1. Though complainant is cross examined by opposite party nothing material is brought out in evidence to deviate him from the case of the complainant in his affidavit. In cross examination PW1 deposed that he did not know the husband of Valsala Kumari teacher. He also deposed that he did not know the whereabouts of her house and the number of children she had . He further submitted that Rameshan Nambiar came to the school and the payment is made to Rameshan Nambiar by borrowing from his colleagues of the school and the payment is made in 2005. He also deposed that he paid ` 4000/- to the opposite party and ` 300/- to his advocate’s clerk and the payment is made in instalments and he paid the fee whenever he consulted opposite party. He further deposed that he did not know the name of the advocate clerk and denied the suggestion that the opposite party did not have any such advocate clerk and falsely deposing for the case. He added that he did not appear before the court on 19/10/2005 and he came to know that warrant is issued against accused as intimated by opposite party. Opposite party had take steps U/S 82 & 83 Cr.PC against the accused and he did not appear before the court on 24/2/2006. He deposed that he did not execute any power of attorney in the name of Valsala Kumari teacher and he approached opposite party to enquire about the case and opposite party told him that since the warrant is issued against accused the case will not be posted to near date. PW1 further stated that Smt.Valsala Kumari Devi teacher has no connection with the said case and he did not receive any notice from the court for appearing before the court and he did not know whether the opposite party furnished fresh address of accused since the warrant is returned unexecuted. However he admitted that a revision petition is filed before the Dist.Court Kasaragod against the dismissal of complaint and he did not know the present stage of said revision petition. He further deposed that Smt.Valsala Kumari devi teacher introduced opposite party to him and apart from that Smt.Valsala Kumari teacher has no connection with the said case. He also stated that he paid ` 1000/- at the initial stage to issue notice and conduct case. He denied the suggestion that Valsalakumari teacher instructed opposite party to discontinue the prosecution against the accused since he could not be made available under any proceedings. PW1 deposed that he did not know whether the son of Valsala Kumari teacher is studying in Madras and at that time Rameshan Nambiar has issued a cheque to her husband Narayanan Nair and the said cheque is involved in the dispute.
6. In defense to the evidence of complainant opposite party filed affidavit and faced cross examination by the counsel for complainant as DW1. In the affidavit DW1 reiterated that the complainant was a mere’ name lender’ and the cheque is entrusted by one Valsalakumari Devi teacher and he has conducted the case from 22 /7/05 to 2008 and there is no deficiency in service on his part. In the affidavit DW1 also stated that he has received ` 300/- only towards the filing of the case that too from Valsalakumari Devi and Smt.Valsalakumari Devi teacher instructed him to drop the proceedings against the accused since the accused could not brought before the court at any time and like the said cheque case this case is also a false one and is against the facts.
7. In cross examination DW1 has stated that he has filed criminal complaint U/S 138 of Negotiable Instrument Act and before filing the complaint he issued a statutory notice and said notice is issued as instructed by one Valsalakumari Devi Teacher in the name of complainant. The name of husband of Smt.Valsalakumari Devi is Narayanan Nair and he was not knowing the said Narayanan Nair when he issued the notice. After issuing the notice the criminal complaint filed before the JFCM Court and the vakalath is executed by complainant Narayanan Nair. After 2 or 3 adjournments complainant told him that he is not the real complainant and he find it difficult to appear before the court. But this statement was not obtained in writing . Again the case continued . He further deposed that what is stated in Paragraphs 3 of Ext.A1 is true and for that he explained that the accused was not available for prosecution even after 82,83 steps under code of Criminal Procedure were taken against him and therefore ValsalaKumari teacher told him to drop the proceedings and this fact was intimated to PW1(complainant) also. He further stated that he did not appear before the JFCM Court on the different dates mentioned in Paragraph 3 of Ext.A1 order and he did not obtain any written document from PW1 stating that he need not want to proceed with the case, further and Smt.Valsala Kumari entrusted the case and the whole proceedings are conducted as per the instruction of Valsalakumari and the cheque is taken back from the court and entrusted with Valsalakumari. He further stated that he did not know whether Rameshan Nambiar know that the case is filed by another one by impersonation. As an advocate he came to realize that the amount as per the cheque is due to Narayanan Nair who is the husband of Valsala kumari teacher and the said amount is borrowed by accused Rameshan Nambiar from the son of Valsalakumari teacher while he was studying in Madras where the accused Ramesh Nambiar was working as a TV reporter of India Vision channel and when the accused was came to home in connection with sisters marriage. Smt Valsala Kumari teacher told him about it and hence he made arrangements to obtain the warrant against the accused by hand. But Valsalakumari teacher never came to obtain the warrant in hand. He further stated that Ext.A2 is the copy of complaint filed by him before the Kasaragod Police against N.P.Raveendran but the police did not take any action on that complaint he filed a criminal complaint before the JFCM Court against PW1, Valsalakumari and N.P Raveendran for impersonation . Ext.A5 is the copy of said complaint and the court forwarded Ext.A5 to police. Police enquired into the matter and referred it and no protest complaint is filed by him against such reference. DW1 admitted that PW1 has to go to police station as part of the investigation of the complaint many a times. PW1 has not paid him any fee since PW1 has no connection with him. He came to know that PW1 is the colleague of Valsalakumari only subsequently and he filed Ext.A5 only after the dismissal of criminal complaint filed by PW1. The dismissal of complaint was not intimated to PW1 but it was intimated to Valsalakumari DW1 further deposed that PW1 was not knowing the address of accused and it was disclosed by Valsalakumari teacher and the contention that no information was given to PW1 about the case and he had sustained loss is not correct.
8. From the evidence adduced what emerges is that the complainant had entrusted a case with opposite party and the said case is dismissed because of the non appearance of the complainant and his counsel before the court.
The defense of opposite party is that the case is entrusted by Valsalakumari teacher and the complainant is a fictitious person or only a name lender and Valsalakumari teacher instructed him to drop the prosecution proceedings against accused Rameshan Nambiar since he was not available for prosecution and accordingly he abstained from appearing before the court and therefore the case is dismissed for default. According to opposite party Sri.N.P.Raveendran tried to threaten him. Then the crucial question to be answered by opposite party is why Raveendran a relative of Valsalakumari Devi threatened him if the case is dropped at the instruction of Valsala Kumari?
9. There is no satisfactory explanation forth coming from the side of opposite party about the demand of Sri.N.P.Raveendran for the copy of order of the JFCM II Court. Had the case been dropped at the instruction of Smt.Valsalakumari then there is no reason for her younger sister’s husband asking him for the copy of the order and threaten him in the matter.
10 Now coming to the core issue i.e the negligence or deficiency in service of opposite party it is important to look in to the relevant provision of Advocates Act and standards of Professional Conduct and Etiquette relating to Advocates. The rules made by the Bar council of India U/S 49(c) of the Advocate Act 1961 prescribes the standards of professional conduct and etiquette of advocates. Out of which Section II rule 11 to 33 deals with the duty of an advocate to his client.
Rule 11 says:
“ An advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to his client, upon his withdrawal from a case he shall refund such part of the fee as has not been earned”
From this rule it is clear that an advocate shall not withdraw from a case without sufficient cause and unless reasonable and sufficient notice is given to his client. Here the opposite party has no case that he has given any notice to PW1 regarding the withdrawal from the case. According to him the case is entrusted by Valsala Kumari and not by PW1 the complainant which is denied by complainant. But opposite party admits that complainant has executed a vakalath in his favour for conducting the criminal complaint U/S 138 of NI Act
Now whether the opposite party can act according to the instruction of a third party is more important. In this regard Rule 19 of the aforesaid Advocate Act Sec 49(c) says:
Rule 19:
“ An advocate shall not act on the instruction of any person other than his client or authorized agent”.
The opposite party has no case that Valsala Kumari is an authorized agent of complainant and therefore he acted as per the advice of Valsala Kumari. Therefore it is clear that what is done by the opposite party is against the rules framed by the Bar Council of India U/S 49( c) of the Advocates Act and it amounts to deficiency in service and hence he is liable to compensate the complainant for the loss hardships and mental agony suffered by the complainant.
The claim of the complainant is the cheque amount involved in the dismissed criminal complaint i.e ` 30,000/- with ` 10,000/- as compensation and costs of the proceedings.
11. But we are not inclined to allow the whole claim of the complainant since no one can assure that the case filed
by him against the accused Rameshan Nambiar would end with an order in his favor and even if an order is passed
whether he can get back the cheque amount involved in the complaint is depending upon so many other factors like
the trial of the complainant, evidence let in by the parties, the discretion of the Magistrate for granting the prayer for
payment of compensation U/S 357 Cr.PC and the financial affluence of the accused Rameshan Nambiar etc.
But the complainant is certainly entitled for compensation for the hardships and mental agony he suffered.
Opposite party admitted that complainant had to go to police station so many times on account of the complaints
filed by him before the police. Further the complainant lost his cheque case on account of the non-appearance
of his counsel before the court. Hence we are of the opinion that the complainant is entitled for a global sum
of ` 10,000/- as compensation for the hardships and mental agony sustained to him.
In the result, complaint is allowed in part and opposite party is directed to pay a compensation of ` 10,000/-(Rupees ten thousand only) to the complainant with a cost of ` 2000/- . Time for compliance is limited to 30 days
from the date of receipt of copy of order. Failing which ` 10,000/- will carry interest also @9% from the
date of order till payment.
Exts:
A1 - copy of the order in CC 97/08 of JFCM II Kasaragod.
A2 - copy of the complaint lodged by the opposite party against the complainant before the Kasaragod Police and
A3 - copy of FIR and FI statement
A4 – Ext.A3
A5- copy of the complaint filed by DW1 against the complainant before the JFCM Kasaragod
Ext.B1copy of the proceedings note in CC 97/2008 of JFCMII Kasaragod
PW1- Narayanan.P-complainant
DW1-C.Ravikumaran Nair- Opposite party
MEMBER PRESIDENT
eva
