Law Web: Whether Advocate can claim fees on Percentage On Permanent Alimony Given To His Client?

It prima facie appears that the petitioner has

completely betrayed the trust reposed in him by the victim. He

has even gone to the extent of claiming percentage on the

permanent alimony given to the victim which is illegal. The

Bombay High Court in Re: K.L. Gauba reported in A.I.R. 1954

Bombay 478 held that fees conditional on the success of a case

and which gives the lawyer an interest in the subject matter

tends to undermine the status of the profession. The same has

always been condemned as unworthy of the legal profession. If

an advocate has interest in success of litigation, he may tend to

depart from ethics. In the case of Mr. ‘G’., A Senior Advocate

of the Supreme Court reported in (1955) 1 Supreme Court

Reporter 490, the Hon’ble Supreme Court held that the claim of

an advocate based on a share in the subject matter is a

professional misconduct. In case of B. Sunitha -Vrs.- The

State of Telengana and Ors. reported in (2018) 69 Orissa

Criminal Reports (SC) 400, it is held that claim based on

percentage of subject matter in litigation cannot be the basis of a

complaint under section 138 of the N.I. Act.

IN THE HIGH COURT OF ORISSA: CUTTACK

ABLAPL No. 5399 of 2017

An application under section 438 of the Code of Criminal

Procedure in connection with C.T. case No. 2702 of 2016 pending

in the Court of S.D.J.M., Bhubaneswar.

Sanjaya Narayan Sahoo Vs State of Odisha

P R E S E N T:

MR. JUSTICE S.K. SAHOO

Date of Order: 01.05.2018

The petitioner Sanjaya Narayan Sahoo has filed this

application under section 438 of Cr.P.C. seeking pre-arrest bail in

connection with C.T. Case No.2702 of 2016 pending in the Court

of learned S.D.J.M., Bhubaneswar which arises out of Kharavela

Nagar P.S. Case No.188 of 2016 for offences punishable under 2

sections 294, 323, 354, 420, 427, 468, 471 of the Indian Penal

Code.

2. One Pravati Swain, wife of Ashok Kumar Gupta filed a

complaint petition in the Court of learned S.D.J.M., Bhubaneswar

on 13.5.2016 against her husband and the petitioner who is an

advocate of Bhubaneswar Bar. The said complaint petition was

sent by the learned S.D.J.M., Bhubaneswar under section 156(3)

of Cr.P.C. to the Inspector in charge, Kharavela Nagar police

station for registration of the case and investigation and

accordingly on 12.06.2016 Kharavela Nagar P.S. Case No.188 of

2016 was registered.

It is the case of the complainant-victim that her

husband Ashok Kumar Gupta married to another lady and

tortured her demanding more dowries for which one F.I.R. was

lodged by her against her husband who was an employee of

Oriental Bank of Commerce. Since the service of her husband

would have been affected due to institution of the first

information report, in order to save his service, he made an

attempt for amicable settlement. The victim, her husband and

their respective family members decided to dissolve the marriage

between the victim and her husband and it was agreed upon that

the victim would be paid a sum of Rs.35,00,000/- (rupees thirty 3

five lakh) as permanent alimony by her husband. The victim

engaged the petitioner as her advocate who was known to her to

safeguard her interest. The petitioner was engaged as an

advocate in Civil Proceeding No.32 of 2016 which was filed by

the victim and her husband jointly under section 7 of the Family

Courts Act, 1984 read with section 28 (1) of this Special

Marriage Act, 1954 in the Court of Judge, Family Court,

Bhubaneswar. It is the case of the victim that on the advice of

the petitioner, she signed the divorce petition and agreement for

permanent alimony and she received only Rs.9.5 lakh on

11.01.2016 but her husband in criminal conspiracy with the

petitioner cheated her sum of Rs.18.5 lakh. Both the accused

persons denied their liability to pay money to the victim after

taking fraudulent illegal deed of divorce. On the deed of divorce,

the petitioner took her signatures illegally giving her an

impression regarding receipt of payment of Rs.7 lakh in the

month of March 2016. The victim engaged a new advocate

doubting the conduct and character of the accused persons and

through her new advocate, she came to know that

fraud/cheating has been practised on her. On 12.05.2016 when

the victim asked her husband about such fraud/cheating, he

abused her in filthy language, pushed and dragged her before

public with intent to disrobe her and threatened to kill her. 4

3. Mr. Devashis Panda, learned counsel appearing for

the petitioner contended that the victim is an educated lady and

she is working as Asst. Manager in Andhra Bank at Power House

Branch, Bhubaneswar and she has deliberately suppressed her

status in the complaint petition as well as in the original mutual

divorce proceeding. It is contended that the victim married

Ashok Kumar Gupta on 08.08.2013 before the Sub-Registrar,

Bhubaneswar but after marriage, dispute arose between the

parties. When the victim came to know about the marital status

of her husband, she lodged an F.I.R. against her husband and

other in-laws’ family members and accordingly, Bhubaneswar

Mahila P.S. Case No.347 of 2015 was registered under sections

498-A/417/342/494/506/34 of the Indian Penal Code read with

section 4 of the Dowry Prohibition Act. It is further contended

that after lodging of the F.I.R. by the victim, the matter was

amicably settled between the parties and as per their own

decision, a divorce proceeding was filed. It is further contended

that as per the agreement between the parties, a sum of rupees

nine lakh fifty thosand was transferred from the account of the

husband of the victim to the account of Panchu Swain who is the

father of the victim on 11.01.2016 on the date of filing of the

divorce petition. Subsequently on 19.03.2016 the husband of the

victim issued four cheques in favour of the victim, total 5

amounting to rupees seven lakh which was also encashed by the

victim. It is contended that the victim and her husband executed

a mutual divorce deed before the D.S.R., Bhubaneswar on

19.03.2016 and in the said deed of divorce, there was no

mention about the quantum of permanent alimony. It is

contended that the petitioner has never executed any document

with regard to the quantum of permanent alimony and the victim

never produced any original document with regard to permanent

alimony as alleged before the Court or before the Investigating

Officer and therefore, the conduct of the victim is suspicious. It

is further contended that after filing of the complaint

petition/F.I.R., the victim filed a petition before the learned

Judge, Family Court, Bhubaneswar for declaration of the

registered divorce deed dated 19.03.2016 as fraudulent and void

with a further prayer for permanently restraining her husband in

using the divorce deed for any purpose and also for recovery of

Rs.18,50,000/- (rupees eighteen lakh fifty thousand) only from

her husband and the said proceeding was registered as C.P.

No.330 of 2016 which was ultimately dismissed on 16.01.2017.

It is further contended that after changing the counsel, the

victim has instituted a false case against the petitioner to harass

him on the accusation of preparation of forged document and

cheating. It is further contended that if any outstanding dues 6

was there towards permanent alimony, the victim could have

instituted appropriate proceeding for recovery of such amount

from her husband and the petitioner has been unnecessarily

dragged into the dispute between the victim and her husband. It

is further contended that there is no chance of absconding or

tampering with the evidence and since the petitioner is an

advocate of Bhubaneswar Bar, unless he is released on

anticipatory bail, he will face unnecessary humiliation in the

society. The petitioner filed an additional affidavit annexing

certain relevant documents.

Mr. Srinivas Mohanty, learned counsel appearing for

the victim in his imitable style vehemently opposed the prayer

for bail and contended that the conduct of the petitioner as an

advocate is highly suspicious and he was in hand in glove with

the husband of the victim although he was the advocate for the

victim and he conspired with the husband of the victim, created

forged documents in order to cheat the victim who without

knowing the niceties of law reposed trust on the petitioner and

believed the petitioner and signed on different documents as told

to her by the petitioner on good faith and she was unaware

about the ill intention of her husband and also the petitioner. It

is contended by the learned counsel for the victim that knowing 7

full well that a mutual divorce petition can only be entertained by

the learned Judge, Family Court, Bhubaneswar, a divorce deed

as per mutual consent was prepared on the advice of the

petitioner wherein nothing was mentioned about the permanent

alimony deliberately and the victim put her signatures thereon

on good faith as advised by the petitioner. It is contended by the

learned counsel that after coming to know about the illegal

activities of her husband and the petitioner, the victim filed Civil

Proceeding No.330 of 2016 before the learned Judge, Family

Court, Bhubaneswar for declaring the registered deed dated

19.03.2016 purporting divorce as fraudulent and void and also

permanently restraining her husband for using the divorce deed

19.03.2016 for any purpose and for recovery of rupees eighteen

lakh fifty thousand from her husband. The learned Judge, Family

Court, Bhubaneswar vide order dated 16.01.2017 declared the

registered deed 19.03.2016 as illegal, void and inoperative and

restrained the husband of the victim permanently from using the

said deed till a decree of divorce dissolving the marriage

between the victim and her husband is pronounced by a

competent Court. The prayer for recovery of rupees eighteen

lakh fifty thousand as was claimed by the victim from the salary

of her husband stood dismissed. 8

Mr. Chita Ranjan Swain, learned Addl. Standing

counsel produced the case records and opposed the prayer for

bail and contended that the allegation against the petitioner is

serious in nature and being an Advocate, since he has flouted

the professional ethics, he is not entitled to be released on

anticipatory bail.

4. During hearing of the bail application, on 05.07.2017

the learned counsel for the State took time for recording the 164

Cr.P.C. statement of the victim and accordingly, the 164 Cr.P.C.

statement of the victim was recorded on 12.07.2017.

In her statement recorded under section 164 Cr.P.C.,

the victim has stated, inter alia, that when dissention started

with her husband Ashok Kumar Gupta, she agreed for a mutual

divorce with permanent alimony of Rs.50,00,000/- (rupees fifty

lakh) only and accordingly, she instructed the petitioner who was

her friend and an advocate to prepare the divorce agreement

with a sum of Rs.50,00,000/- (rupees fifty lakh) only. She stated

that the petitioner took her signatures in Vakalatnama, stamp

papers and also in blank papers but the petitioner prepared an

agreement for permanent alimony of Rs.35,00,000/- (rupees

thirty five lakh) only. The original agreement was not given to

the victim and after ten days, a xerox copy of the agreement 9

was given to her. She further stated that Rs.9.5 lakh was given

to her by way of cheques and in the agreement, it was written

that Rs.15.5 lakh would be given in the month of February 2016

which was not given to her. In March 2016, cheques amounting

to Rs.7,00,000/- (rupees seven lakh) only in total were given to

her and some of her signatures were taken in the Marriage

Registration Office in the deed of divorce and it was told to her

that notice would be issued to her and the balance amount of

Rs.8.5 lakh would be given to her afterwards. It is further stated

that the petitioner avoided receiving phone calls from her and

she came to know from her husband that there has already been

divorce between them and accordingly, she filed a petition to

cancel the deed of divorce. It is further stated in her 164 Cr.P.C.

statement that after she lodged F.I.R. against the petitioner, the

petitioner came to her Branch Office and threatened her to kill

and she also received a legal notice on behalf of the petitioner

demanding 10% of the alimony which she received from her

husband.

5. On going through the case records and documents

filed by the respective parties, it appears that an agreement for

permanent alimony was executed between the victim and her

husband namely Ashok Kumar Gupta on 11.01.2016 before Sri 10

P.K. Nanda, Notary Public, Bhubaneswar wherein it is mentioned

that due to misunderstanding between the parties, they decided

to divorce each other and divorce suit bearing C.P. No.32 of

2016 was filed before the Family Court, Bhubaneswar. It is

further indicated that the husband of the victim agreed to pay a

sum of Rs.35,00,000/- (rupees thirty five lakh) to the victim and

on that day he paid a sum of Rs.9,50,000/- (rupees nine lakh

fifty thousand) to the victim by way of a cheque. It is further

indicated that the husband of the victim shall pay a further sum

of Rs.15,50,000/- (rupees fifteen lakh fifty thousand) to the

victim in the month February 2016 and before the close of C.P.

No.32 of 2016 filed before the Marriage Officer, Bhubaneswar,

the husband of the victim would pay Rs.10,00,000/- (rupees ten

lakh) to the victim for permanent alimony/compensation.

According to the victim as per her 164 Cr.P.C.

statement, by taking her signatures in stamp papers and blank

papers, such a document was prepared.

On bare perusal of the agreement for permanent

alimony, it appears that the petitioner as advocate has certified

that the agreement was drafted by him as per the instruction of

the parties. If the victim had specifically instructed to the

petitioner to prepare divorce agreement with a sum of 11

Rs.50,00,000/- (rupees fifty lakh), there was no earthly reason

on the part of the petitioner to prepare an agreement for

permanent alimony with a sum of Rs.35,00,000/- (rupees thirty

five lakh) without intimating the victim in that respect. The

victim was not provided with the original of the agreement for

permanent alimony instantly but after ten days, she was given a

xerox copy. It appears that the agreement paper was purchased

by Ashok Kumar Gupta, husband of the victim on 11.01.2016

from C.R. Prusty, Stamp Vender and he has also received the

original agreement on 11.01.2016 which would be evident from

the endorsement made in the agreement.

On 11.01.2016 a petition for divorce by mutual

consent under section 28 of the Special Marriage Act, 1954 was

filed before the Judge, Family Court, Bhubaneswar by the victim

and her husband which was registered as Civil Proceeding No.32

of 2016. In the said petition, the victim is shown to have been

identified by the petitioner on 11.01.2016 before Jagyneswar

Acharya, Notary Public, Bhubaneswar. Most peculiarly there is no

mention about any fixation of permanent alimony between the

parties which is to be given by the husband of the victim to her.

Similarly in the agreement for permanent alimony, it is

mentioned that C.P. No.32 of 2016 was filed before Marriage 12

Officer, Bhubaneswar which is not correct. Therefore, prima facie

it appears that on 11.01.2016 agreement for permanent alimony

was executed so also petition for divorce by mutual consent was

filed before the learned Judge, Family Court, Bhubaneswar in

C.P. No.32 of 2016. The agreement for permanent alimony was

drafted by the petitioner and he also certified the contents of the

agreement to have been drafted as per the instruction of the

parties. The petitioner has also identified the victim before the

Notary Public on the very day in the petition for divorce by

mutual consent.

The petitioner has filed an additional affidavit before

this Court which is dated 02.08.2017 in which he has mentioned

in paragraph 7 that he had no knowledge about the quantum

permanent alimony which is obviously an incorrect statement in

view of the fact that he has himself drafted the agreement for

permanent alimony and certified the same to be correct on

11.01.2016 before Mr. P.K. Nanda, Notary Public, Bhubaneswar.

Again in paragraph 10 of the additional affidavit dated

02.08.2017, the petitioner has mentioned that he had never

executed any document with regard the quantum of permanent

alimony which is again an incorrect statement. It is further

mentioned that the victim never produced any original document 13

with regard to quantum of permanent alimony before any Court

or before the investigating officer which creates serious doubt.

When as per the endorsement made in the agreement for

permanent alimony, the original agreement was retained by the

husband of the victim on 11.01.2016 and a xerox copy of the

same was handed over to the victim after ten days by the

petitioner as per her 164 Cr.P.C. statement, the averments taken

in the additional affidavit in that respect looses all its sanctity.

On 19.03.2016 a divorce deed per mutual consent

was presented before the Registering Officer, Bhubaneswar in

which the victim’s husband was the first party and the victim was

the second party and in this divorce deed, nothing was

mentioned about the fixation of permanent alimony. According to

the victim, this mutual divorce deed was procured illegally

without explaining the contents of the deed to her and when she

came to know about the same, she filed a petition before the

Judge, Family Court, Bhubaneswar vide Civil Proceeding No.330

of 2016 to declare the divorce deed dated 19.03.2016 as

fraudulent and void and also with a prayer to restrain her

husband from using the divorce deed for any purpose and for

recovery of Rs.18,50,000/- from her husband. 14

The learned Judge, Family Court, Bhubaneswar vide

judgment and order dated 16.01.2017 in Civil Proceeding No.330

of 2016 declared the divorce deed document dated 19.03.2016

as illegal, void and inoperative and the husband of the victim

was also permanently restrained from using the said deed till a

decree of divorce dissolving the marriage between the parties is

pronounced by a competent Court. However, the prayer of the

victim directing her husband for recovery of Rs.18,50,000/-

(rupees eighteen lakh fifty thousand) from his salary was not

accepted.

Most peculiarly the petitioner in his additional

affidavit filed before this Court has mentioned in paragraph 11

that the petition filed by the victim before the learned Judge,

Family Court, Bhubaneswar in Civil Proceeding No.330 of 2016

was dismissed vide judgment dated 16.01.2017. This is

apparently a false statement.

The learned counsel for the victim has drawn the

attention of this Court to the legal notice issued on behalf of the

petitioner on dated 20.05.2016 to the victim by S & S Legal

Services wherein it is indicated that she had promised to give

10% of the amount of permanent alimony which she would get

and therefore, she has to clear Rs.2,20,000/- (rupees two lakh 15

twenty thousand) within fifteen days of the receipt of the notice

and if failed, legal proceeding is to be instituted. It is contended

by the learned counsel for the informant that an advocate like

the petitioner demanding percentage on the permanent alimony

is against professional ethics which is not permissible in law.

On 20.03.2018 Miss Sandhyarani Singh, Inspector of

Police, Kharvela Nagar police station was present and she

submitted that as per the agreement between the parties, a sum

of Rs.18,50,000/- (rupees eighteen lakh fifty thousand) is yet to

be paid to the victim by her husband. The learned counsel for

the petitioner submitted on that day that the balance amount as

per agreement has also been paid to Panchu Swain, the father of

the victim. Taking note of such submission of the learned counsel

for the petitioner, the Inspector in charge of Kharavela Nagar

police station was asked to file an affidavit in that respect. The

Inspector in charge filed an affidavit which is dated 27.03.2018.

In the affidavit she has mentioned that as per the agreement of

permanent alimony of Rs.35,00,000/-, the father of the victim

Panchu Swain and the victim have received a sum of

Rs.16,50,000/- and they have not received the rest of the

amount of Rs.18,50,000/- from the husband of the victim.16

Therefore, the statement which was made by the

learned counsel for the petitioner on instruction that the balance

amount as per agreement has also been paid to Panchu Swain is

also not correct.

6. In view of the forgoing discussions, it prima facie

appears that there is ring of truth in the statement of the victim

that her Vakalatnama along with her signatures in stamp papers

and blank papers were collected by the petitioner. The conduct

of the petitioner who was the advocate for the victim is also

highly suspicious. Reflection of permanent alimony of

Rs.35,00,000/- (rupees thirty five lakh) instead of

Rs.50,00,000/- (rupees fifty lakh) in the agreement for

permanent alimony dated 11.01.2016, non-mentioning of the

permanent alimony amount in Civil Proceeding No.32 of 2016

filed before the learned Judge, Family Court, Bhubaneswar on

the same day, presenting a divorce deed as per mutual consent

on dated 19.03.2016 before the Registering Officer,

Bhubaneswar without mentioning the permanent alimony

amount which was declared to be illegal and void and inoperative

by the learned Judge, Family Court, Bhubaneswr in Civil

Proceeding No. 330 of 2016 indicates prima facie conspiracy

between the petitioner and the husband of the victim. The victim 17

entrusted the petitioner to conduct her case on good faith as he

was known to her but the petitioner has breached the trust and

acted against the interests of the victim.

7. The legal profession which is essentially a serviceoriented

profession is the major component of the justice

delivery system. Role of the legal profession in strengthening the

administration of justice is unique. The relationship between the

lawyer and the client is one of trust and confidence. The client

entrusts the whole obligation of handling legal proceedings to an

advocate and the advocate has to act with utmost good faith,

integrity, fairness and loyalty. Nothing should be done by any

member of the legal fraternity which might tend to lessen in any

degree the confidence of the public in the fidelity, honesty and

integrity of the profession. The conduct of members of the legal

profession who do not follow ethics contributes to obstruction of

administration of justice. If a legal practitioner fails to

understand the significance of the profession and his role in

providing access to justice and assisting the citizens in securing

their fundamental and other rights then he has no right to

continue as a member of this noble profession. Any violation of

the principles of professional ethics by an advocate is

unfortunate and unacceptable.18

In Re: Sanjiv Dutta and Ors. reported in (1995)

3 Supreme Court Cases 619, it is held as follows:-

“20. The legal profession is a solemn and serious

occupation. It is a noble calling and all those

who belong to it are its honourable members.

Although the entry to the profession can be had

by acquiring merely the qualification of technical

competence, the honour as a professional has to

be maintained by its members by their

exemplary conduct both in and outside the

Court. The legal profession is different from

other professions in that what the lawyers do,

affects not only an individual but the

administration of justice which is the foundation

of the civilised society. Both as a leading

member of the intelligential of the society and as

a responsible citizen, the lawyer has to conduct

himself as a model for others both in his

professional and in his private and public life.

The society has a right to expect of him such

ideal behavior. It must not be forgotten that the

legal profession has always been held in high

esteem and its members have played an

enviable role in public life. The regard for the

legal and judicial systems in this country is in no

small measure due to the tiredness role played

by the stalwarts in the profession to strengthen

them. They took their profession seriously and

practised it with dignity, deference and devotion. 19

If the profession is to survive, the judicial

system has to be vitalised. No service will be too

small in making the system efficient, effective

and credible. The casualness and indifference

with which some members practise the

profession are certainly not calculated to achieve

that purpose or to enhance the prestige either of

the profession or of the institution they are

serving. If people lose confidence in the

profession on account of the deviant ways of

some of its members, it is not only the

profession which will suffer but also the

administration of justice as a whole. The present

trend unless checked is likely to lead to a stage

when the system will be found wrecked from

within before it is wrecked from outside. It is for

the members of the profession to introspect and

take the corrective steps in time and also spare

the Courts the unpleasant duty. We say no

more.”