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Judgment
Pratibha Upasani, J.—The petitioners herein have approached this Court by way of filing this Criminal Writ Petition, being aggrieved by the order of issuance of process in Criminal Complaint No. 321/S/94 passed by the Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay, for offences punishable under sections 420 and 406 read with section 114 of the Indian Penal Code.
I have heard Mr. Malpathak, appearing for the petitioners/original accused, so also, Mr. Salvi, the learned A.P.P. for respondent No. 2/State. Respondent No. 1/original complainant is absent though served. I have also perused the complaint dated 29th July, 1994, which is the foundation of these proceedings.
After perusing the complaint, it is revealed that the complaint is with respect to the alleged unpaid amount of the Advocate''s fee, namely, respondent No. 1 advocate Mr. Kurup, allegedly by the petitioners, for whom, according to the complaint, some legal professional work was done by respondent No. 1. Original accused No. 1 is the All India Organising Secretary of Dayanand Anglo Vedic College Trust and Management Society, while original accused No. 2 is the Regional Director of the Society for the States of Maharashtra and Gujarat State and is in charge of all the educational institutions belonging to the society in these two States. Original Accused No. 3 is the Principal of the Lokgram D.A.V. Public School situated at Pokhran Road No. 2, Thane, and the original accused No. 4 is the Principal of Lok Gram D.A.V. Public School, situated at Lokgram, Kalyan (East). The case of the complainant, as revealed from the complaint, is that respondent No. 1, did some professional work for the accused, in pursuance to their request. But that, though some amount was paid by them to the complainant, some more amount is still payable, and hence, the complaint under sections 420 and 406 read with sections 114 and 120-B of the Indian Penal Code.
It is obvious from the tone and tenor of the complaint that the complaint is essentially for recovery of some amount, which, according to the story of the complainant, is payable to him by the accused. On the face of it, no ingredient of section 420 or 406 of the Indian Penal Code is spelt out. If at all any amount by way of professional fee is payable to the complainant by the accused, his remedy lies elsewhere, but certainly not in the Criminal Court. It appears that the matter is essentially of a civil nature and has been given a cloak of criminal offence. It has to be remembered that criminal proceedings are not a shortcut of other remedies available in the law. The lower Court, therefore, ought to have exercised a great deal of caution before issuance of process, which has not been done. The order of issuance of process, therefore, will have to be quashed and set-aside. Hence, the following order:
Criminal Writ Petition No. 1388 of 1994 is allowed in terms of prayer clause (a).
Criminal proceedings in CC/321/S/94 filed by respondent No. 1 herein, and pending in the Court of the Metropolitan Magistrate, 33rd Court, Ballard Pier, Bombay, are hereby quashed and set aside.
Writ petition disposed of accordingly.
Petition allowed.