Changing Counsel After Conclusion Of Arguments: Allahabad HC Asks Bar Council To Consider Issue Of Lawyers Accepting Such Briefs

The Allahabad High Court while dealing with a matter has observed that the conduct of accepting the brief by a subsequent counsel, at the stage of conclusion of arguments by previous counsel and that too before the very date of pronouncement of the judgment, permeates unsolicited impression about the dignified profession.

The Court has requested the State Bar Council as well as the High Court Bar Association to consider and find a solution to the "frequently rising wretched conditions affecting the noble profession".

The Court told an Advocate to refrain from being introduced as a subsequent engagement in a case where arguments have already been concluded by another counsel, to secure faith and regard to his credit.

A Single Bench of Justice Manju Rani Chauhan said, “Conduct of accepting the brief by a subsequent counsel at the stage of conclusion of arguments by previous counsel and that too before the very date of pronouncement of the judgement, permeates unsolicited impression and does not fetch appreciation rather it spots a stigmatic mole over the person who being a lawyer is believed to follow the traditional decorum in the field of legal profession. Mr. Pandey who carries respectful position for his professional etiquettes is advised to refrain himself from being introduced as a subsequent engagement in a case where arguments have already been concluded by some other previous counsel, so as to secure faith and regard to his credit. The Court always commends the fairness and never thinks of subverting or demolition of professional principles and ethics at the end of a lawyer.”

The Bench was deciding a case wherein an applicant had approached the Court challenging the proceedings of an offence under Section 138 of the Negotiable Instruments Act, 1881, and a summoning order passed by the Additional Chief Judicial Magistrate-III.

Advocates Omar Zamin and Rohit Nandan Pandey appeared for the applicant while AGA K.P. Pathak appeared for the State.

In this case, a complaint under Section 138 of the N.I. Act was filed against the applicant with the allegation that the applicant having good relations with the opposite party demanded an amount of Rs. 1,25,00,000/- requesting him to become a partner in his business, which was being run by him since 2013. The opposite party, on such an assurance, gave the asked amount but the applicant, having the intention of cheating, showed a profit in the firm for the year 2014-15 and returned an amount of Rs. 8,00,000/- to the opposite party.

On being asked to return the balance amount, the applicant gave a cheque which was returned with the remark “Bank Blocked” and thereafter, the opposite party requested him to pay the amount as was taken by him, on which the applicant misbehaved and used abusive language, threatening for dire consequences and abruptly refused to return the amount. The applicant did not return the amount nor submitted a reply to the legal notice given by the opposite party, and therefore, the complaint was filed which resulted in the issuance of a summoning order by the Magistrate.

The High Court after hearing the arguments of both parties noted, “It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, the service of notice is deemed to have been effected at the time, at which the letter would have been delivered in the ordinary course of business.”

The Court further observed that at this stage, only a prima facie case is to be seen and that the complaint cannot be thrown at the threshold and the factum of disputed service of notice requires adjudication based on evidence which can only be done and appreciated by the trial court.

“All the submissions made by learned counsel for the applicant are disputed questions of fact. Therefore, when the facts have to be established by way of evidence, this Court while exercising the powers under section 482 of Cr.P.C., cannot interfere with such proceedings. Hence, no grounds are made out for quashing of the proceedings under section 138 of the Negotiable Instruments Act”, asserted the Court.

Accordingly, the Court dismissed the plea and refused to interfere in the summoning order of the Trial Court.

Cause Title- Shiv Kumar Sharma v. State of U.P. and Another

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