Final Order 1

Order Details: Order Below EX 1
Pdf Text: C. C. No. 17 SW 2024 Augusta Vs Dr. Rohini
CNR-MHMM18-001629-2024
ORDER BELOW EXH.1
1. Perused record. Heard Ld. Advocate of the complainant/applicant.
2. The present complaint/application is filed under Section 156(3) of
Code of Criminal Procedure, seeking direction to register the offence and
investigate the matter through police machinery.
3. The alleged offences are cognizable in nature. The application is
also supported by affidavit. However, it is noticed that the mandatory
compliance of Section 154(2) is not done. Thus, there is basic defect for
invoking the jurisdiction under Section 156(3) of Code of Criminal
Procedure and the prayer sought can not be allowed.
4. Even otherwise, if we considered the whole application/allegations,
it is the case of the applicant that the respondent is advocate by
profession. The applicant is having two children, a daughter Mrs. Carissa
Menezes and a son Mr. Ken D’Souza. Said son filed two civil cases, first,
in City Civil Court, Mumbai and another in High Court against applicant
and her daughter. The applicant approached respondent and hired her
legal services in capacity of advocate, in a suit filed in City Civil Court.
The respondent recorded her appearance in the said suit. It is
alleged that despite hiring her personal services, respondent acted
negligently in prosecuting the matter for the applicant and the order of
maintaining status quo, was passed against applicant and her daughter.
The respondent charged fees of Rs.12 lacs, from the applicant. But she
acted negligently. Applicant asked for the refund of fees. On that
respondent agreed to pay certain amount. The applicant disputed the
payment and claimed certain additional amount. Applicant also sent
notice to the respondent. However, respondent has not paid the amount
claimed. Therefore, applicant approached this court contending that
respondent committed offence of criminal breach of trust and cheating.
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C. C. No. 17 SW 2024 Augusta Vs Dr. Rohini
CNR-MHMM18-001629-2024
5. For constituting offences of criminal breach of trust and cheating
there must be intention to defraud on the part of accused, resulting in
consequent wrongful loss to one person and wrongful gain to another.
The said basic requirement to constitute these offences is missing from
pleading and the material produced. As such the whole application even if
accepted as it is no offence found to be made out. If any liability, at all is
attracted by the respondent it may be of civil nature and no criminal
action can be initiated on the basis of the contents of the application and
material produced.
6. The contents of the application further reflects that all the acts
occurred in professional capacity of the respondent as an advocate, when
applicant hired services of the respondent. The advocates are having
immunity no criminal or any other action can be initiated against them by
disputing their competency to obtain favorable orders in favour of their
clients. There are certain exceptions to this rule, but the contents of the
application and the material produced not carved out any such exception
warranting any action against respondent.
7. Thus, the summary of the above discussion is that for want of
mandatory compliance of Section 154(2) of Code of Criminal Procedure,
and as no case made out, in the alternative also prayer can not be allowed.
Therefore, following order -
ORDER
The application is rejected.
MUMBAI (KOMALSING RAJPUT)
DATE – 04.04.2025 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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