THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
B.C.I. TR. CASE NO. 40/1991
District Judge, Nainital … Appellant
V/s
“R” … Respondent
PRESENT:
ShriC.L.Sachdeva … Chairman
ShriO.P.Sharma … Member
ShriT.P.Singh … Member
JUDGMENT
DATED 5th October, 1996
Proceedings under section 35 of the Advocate` Act 1961 was initiated against the charged advocate, R.Giving rise to D.C.Case No.59/1989 before the State Bar Council of Uttar Pradesh, the State Bar Council prima facie felt satisfied and referred the matter to its Disciplinary Committee in its General Body meeting held on 12-8-1989 which shows that on account of dilatory tacties adopted by the charged Advocate, it could not dispose of the matter within the stipulated period as contemplated u/s 36B of the Advocates` Act and ultimately the matter came up before the Bar Council of India and registered as BCI Tr. Case No. 40/1991. Perusal of the order sheet shows that inspite of several notices sent to the charged advocate, he did not participate in the proceedings and consequently matter proceeded ex-parte against him. The Disciplinary Committee of the Bar Council of India in its meeting held on 13th January, 1996 framed the following issues:-
i) Whether the Respondent has stated any falsehood before the Motor Accident Claim Tribunal/ Nainital for illegal giants?
ii) Whether the respondent has committed any fraud in mis-representing the facts deliberately before the Tribunal?
iii) Whether the respondent has committed any professional misconduct?
Since all the issues are inter related and specially in the background that no evidence has been led in defence, all the issues are dealt simultaneously.
A copy of the judgment delivery by the learned District Judge dated 2-12-1987 is on record which seems to have been passed in a Review Petition. Perusal of the Judgment shows that in a Motor Accident one Mohsin Ali Khan S/o Mhd. Ali Khan, resident of Mohalla Bazar, Baheri, Distt. Bareilly received injuries in a motor accident on 11-9-1983 at KichhaTirahaKichha, P.S.Kichaa on the road leading from the said Tiraha to Bareilly. As a result of which he subsequently died. Motor Accident Case being No. 14/1982 was initially initiated by the said Mohsin Ali Khan S/o Mohd. Ali Khan R/o Mohalla Bazar, Behari, District Bareilly in respect of injuries said to have been sustained by him in a motor accident at about 5.30 P.M on 19-9-1981 at Behari on the road leading from Nainital to Bareilly. It was also alleged that on account of the injuries received on 19-9-1981 Mohsin Ali Khan was literally crippled and permanently disabled. An application (16 Kha) being on the file on M.A.C 14 of 1982 discloses that Mohsin Ali Khan Ultimately died on 28-4-83 as a result of the injuries sustained on 19-9-1981. This was an application for substitution which was later incorporated in the claim petition under the Tribunal’s order dated 20-9-1983 by which Smt. QuisarJahan Begum, widow of Mohsin Ali Khan, Quisar Bee and Salmma Bee daughters of Mohsin Ali and Ahasan Ali Khan S/o Mohsin Ali, Mhd. Ali Khan, father of Mohsin Ali Khan and Smt. Nafis begum, Mother of Mhsin Ali Khan were brought on record. Another case being Motor Accident case No. 21/1984 was instituted by the aforesaid Smt. QuisarJahan, Km. Kausar Bee, Km. Sakama Bee and Ashan Ali Khan the Khan, the window and minor daughter of mohsin Ali Khan, on 27-2-1984 where it was alleged that Mohsin Ali Khan met with a motor accident at 5 P.M on 11-9-1983 at TirahaKichha on the road leading to Bareilly P.S.Kichha and sustained serious injuries including fracture. While the fact of the matter is that Mohsin Ali Khan had already died on 28-4-1983 as shown by the record of Motor Accident Case No.14/1982, it is obvious that he could not have been involved in the alleged accident alleged to have occurred n 11-9-1983.
The first accident was alleged to have taken place with a Mini Bus No. USE. 7725 which was insured by the New India Assurance Company, while the vehicle involved in the subsequent accident dated 11-9-1983 was shown to be a Bus No. USM 6949 which was insured by M/s Oriental Fire and General Insurance Company Ltd.
Motor Accident Case No. 21/1984 was instituted through the charged Advocate, R, Bareilly. This was also brought on record that R is real brother of the deceased Mohsin Ali Khan. Sine Mohsin Ali Khan had already expired on 28-4-1983, the subsequent accident dated 11-9-1983 for preferring the claim is obviously a manufactured incident. The Charged Advocate being real brother of Mohsin Ali Khan was definitely knowing about the death of his brother n 28-8-1983. It is obvious that charged advocate colluded with Smt. QisarJahan Began and the witness, Sri BhagwatSaranharma, in obtaining an award from the Tribunal on 21-2-1986 in Motor Accident case No. 21/84. There is no doubt that subsequent award dated 21-2-1986 was obtained by way of fraud by the charged advocate and by the claimants. The aforesaid fraud came to the light when M/s Oriental Fire and General Insurance Co. Ltd., applied for quashing the subsequent award dated 21-2-1986 in Motor Accident Case No.21/1984 as a result of which the same was ultimately quashed.
This was obviously a case of fraud as a result of which learned District Judge referred the matter to the Bar Council of U.P for drawing misconduct proceedings against R, Advocate.
In a short reply submitted by the charged Advocate, apart from denying the fact, apology has been sought.
In recent past it has been experienced that in the cases of Motor Accident Claim, the role of the lawyers in some f the cases has not been up to the mark. Cases of misappropriation were frequently being brought to the notice of the Bar Council of India as a result of which necessary amendments were made in the practice of preparation of cheques in the name of Claimant’s counsel t the claimants themselves, which has now been adopted. The facts of the above noted casually. The chargedadvocate, who has taken the matter very lightly, though serious in nature and has not led any effective evidence in support of his defence, a word of apology cannot exonerate him from the charge leveled against him. Under the circumstances, committee is of the view that the charged advocate should be debarred for a period of two years from the date of the notification of the order. The information to this effect be sent to the State Bar Council of Uttar Pradesh, District Judge, Bareilly, District Judge, National, President, Bar Association, Bareilly District, President, Bar Association, National, etc.
Sd/- C.L.Sachdeva Sd/- O.P.Sharma Sd/- T.P.Singh
Chairman Member Member
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C. APPEAL NO. 8/1994
“A” … Appellant
V/s
“R” … Respondent
PRESENT:
ShriD.V.Patil … Chairman
ShriS.C.Chawla … Member
ShriS.Gopakumaran Nair … Member
JUDGMENT
DATED 8thDecember, 1996
This is an appeal against the order of State Bar Council wherein the appellant was suspended for a period of six months from practice.
Brief facts of the case are that the respondent paid a sum of Rs. 10,000/- on 16-5-1981 and Rs. 60,000/- on 4-10-1981 to Rao and Raju Builders Pvt. Ltd., Hyderabad. The amount was paid to construct a three bed room house on the plot allotted to the complainant.
As the said Builders failed to construct the house, the respondent met P.S. Rao Managing Director of Rao and Raju Builders Pvt. Ltd. to settle the matter amicably. The said P.S.Rao suggested to the respondent to approach the appellant. A practicing Advocate at Hyderabad to seek his advice. The respondent met him in March, 1984 and then appellant advised him to file a suit for recovery of amount from M/s Rao and Raju Builders Pvt. Ltd. The respondent paid Rs. 5,000/- to the appellant for filling the said recovery suit and the appellant obtained his signatures on the plaint prepared by him. That thereafter the respondent asked his brother-in-law to pursue the matter who was also G.P.A holder of the respondent. The respondent’s brother-in-law met the appellant in July, 1991 and enquired about the case. The respondent told him that it was still at S.R. Stage and yet to be numbered. The respondent on 4th September, 1991 set a Regd. Letter alongwith a draft of Rs. 400/- to the appellant for taking necessary steps so that the matter may be taken up before the City Civil Court, Hyderabad. The appellant did not send any reply and another Regd. Letter was sent to him on 18-12-1991 since no replay was also sent by the appellant, the respondent filed a case against the appellant for professional misconduct as he failed to file the suit of the respondent inspite of having received the amount of fee.
On the complaint of the respondent the appellant was issued show case notice and the appellant submitted his replay wherein he admitted the fact that the respondent has approached him for consultation but in view of the fact that the appellant was approached by Mr. P.S. Rao one of Directors of Rao and Raju Builders Pvt. Ltd., expressed his inability to prosecute the matter and gave friendly advice for instituting a case against the firm. Rest of the allegations have been denied. He also stated that after receiving the demand draft for Rs. 400/- he returned the same on 19-9-1991 and he never encashed the said draft f Rs. 400/-. The appellant, therefore, did not accept the brief of the respondent and as such he was not guilty of any professional misconduct.
On the pleadings of the parties following issues were framed:-
i) Whether it is a fact that the complaint paid a sum of Rs. 500/- to the respondent to file a suit to recover the amounts due to him from Rao and Raju Builders, Abids, Hyderabad?
ii) Whether the complainant sent a D.D for Rs. 400/- again by Regd. Post on 4-9-1991 to the Respondent asking him to take all steps necessary for the case entrusted by him?
iii) Whether the respondent took any steps in respect of the case entrusted by the complainant to him?
iv) Whether the respondent is guilty of any professional misconduct?
v) To what relief?
The respondent examined three witnesses in support of his case, whereas the appellant has examined himself. Documents were also exhibited as C-1 to C-5 and R-1 to R-2. The Disciplinary Committee of the State Bar Council on the basis of the evidence on record and documents decided first three issues against the appellant, and held the appellant guilty of professional misconduct and passed the impugned order, hence this appeal.
We have heard the arguments of the appellant and counsel for the respondent and have gone through the record. The appellant has argued that there was contradiction in the statement of the complainant and other witnesses in respect of his meeting in March, 1984 and about signing the plaint. The respondent in his statement has admitted that after filing the case in 1984 there was no written communication between him and the appellant, till 4-9-1991. There was also no proof of the payment of Rs. 5,000/- as alleged in the complaint which was paid to the appellant. Similarly CW-2 and CW-3 do not support the assertion of the respondent in respect of the signing the plaint and making the payment. He further argued that suit was filed by one BhagwanDass Sharma, Advocate on 7-6-1984 and he was representing the respondent in the said suit and instead of approaching the said advocate a false and concocted compliant has been filed against the appellant with malafide intention. So far as draft of Rs. 400/- is concerned he has exhibited a letter dated 19-9-1991 that he sent the draft back to the respondent as he was not concerned with the case. He also challenged the impugned order on the ground that the respondent as per his own statement never made any diligent attempt from November, 1983 to October, 1991 to find out the fate of the suit. This itself shows that appellant was not at all interested with the matter in view of the above discrepancies and contradictions in the statement as well as no proof of Rs. 5,000/-. The respondent has miserably failed to prove his case against the appellant for professional misconduct.
On the other hand the counsel for respondent has vehemently argued that the respondent has produced sufficient evidence oral and documentary to prove his case against the appellant. He argued that the statements of the witnesses fully corroborate the fact of engaging the appellant by the respondent as his counsel and payment of Rs. 5,000/- but inspite of the same the appellant was negligent in not filling the case and replying to the letters sent to him by Regd. Post asking him to expedite the case filed by the respondent. The letter of 19-9-1991 which is Exbt.as R-1 was not at all received by the appellant. He argued that the letter is an afterthought as it is unexpected of a lawyer who has received a registered letter from a client specially asking about the progress of the case and sending a draft of Rs. 400/- towards expenses would reply by an ordinary post without any proof of its being posted. No proof of the posting of the said letter has been furnished by the appellant, the letter now Exbt. R-1 is an after thought cannot be taken into consideration. Moreover the appellant has not denied that the respondent approached him for filling a case and the statement of CW-3 P.S. Rao who is one of the Directors of the company M/s Rao and Raju Pvt. Ltd. who advised the respondent to go to the appellant for filling the case has appeared as a witness and corroborated the statement of the respondent and his evidence which is of independent in nature could not be brushed aside, therefore the respondent has fully proved his case against the appellant for professional misconduct.
We have given a careful consideration to the arguments of both the parties and are of the opinion that the appellant was engaged by the respondent as his counsel and was paid Rs. 5,000/- towards the fees and inspite of having received the payment he neglected and failed to file the case on behalf of the respondent. We are not inclined to accept the plea of the appellant that he sent a letter on 19-9-1991 that he was never a counsel for the respondent and has sent back the draft of Rs. 400/- as no proof of posting said letter has been filed before us.
We therefore find that the appellant is guilty of professional misconduct and we see no reason to disagree with the finding of the State Bar Council suspending the appellant for a period of six months from practice.
In view of the above we dismiss the appeal and uphold the order of the State Bar Council.
Announced.
Sd/- Sd/- Sd/-
(D.V.PATIL) (S.C.CHAWLA) (S.GOPAKUMARAN NAIR)
Chairman Member Member
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C. APPEAL NO. 20/1994
PRESENT:
ShriGirish.D. Bhatt, … Chairman
ShriJ.B.Pardivala, … Member
ShriB.R.Sharma … Member
JUDGMENT
DATED 1st June, 1996
This appeal is directed against the Judgment and order dated 2-4-19194 rendered by the Disciplinary Committee, Indore Bench,Bar Council of Madhya Pradesh in complaint Case No. 67/1992 wherein the SANAD of the appellant has been suspended for a period of seven years on the grounds of professional misconduct.
2. The gravamen of the charge against the present appellant is that one Subbash Jain brother of the respondent complainant is a convict. He has been convicted u/s 302 IPC and is sentenced to undergo life imprisonment. Thereafter he applied under section 2 of the Madhya Pradesh Prisoners Release on Probation Act, 1954 and the matter came up for hearing before the Hon’ble High Court of Madhya Pradesh, Indore Bench and Hon’ble High Court by its order dated 8-1-1992 dismissed M.P.No 14/92 with the following observations:-
“By this petition under article 226 of the Constitution of India the petitioner seeks to virtually challenge an order dated 3-10-1991 passed in N.P. No. 87/1991 cancelling grant of bail to the petitioner in case his release u/s 2 of the M.P. Prisoner’s Release on Probation Act, 1954”.
“This petition is wholly misconceived. Right to be released on probation is discretionary. The charge against the petitioner is that he procured his release by producing a forged release order, which speaks of his past antecedents and conduct”.
3. The material part of the case of the respondent complainant in his complaint before the State Bar Council was that the respondent engaged the present appellant as advocate for preferring Special Leave Petition against the order dated 8-1-1992 of the High Court of Madhya Pradesh passed in M.P No. 14/1992and that the respondent advocate in turn demanded Rs. 15,000/- towards his professional fees and expenses from the respondent. It was further alleged by the respondent complainant that the amount of Rs. 15,000/- as asked for by the appellant was paid to the appellant and the papers were also handed over to the appellant. It was further the case of the respondent that after repeated reminders by the respondent and consequent assurances by the appellant, the respondent was assured and was informed that show cause notice had been issued by the Supreme Court in the Special Leave Petition got filed by him before the Supreme Court. It was further the case of the respondent that thereafter he continuously demanded the certified copy of the order which was claimed to have been passed by the Hon’ble Supreme Court. According to the respondent, he received one Regd. A.D envelope containing certain documents which included the letter of appellant, copy of the Special Leave Petition and the order alleged to have been passed by the Supreme Court. All these documents have been exhibited and are marked as C-1, C-2, C-3 and C-4 respectively. The respondent on perusing these documents prima facie suspected them to be forged and entertained serious doubts about the genuineness of these documents and after due verification it was found that all the documents were forged and no such order was passed by the Supreme Court inasmuch as no Special Leave Petition was actually filed in the Supreme Court. According to the respondent, he paid Rs. 15,000/-to the present appellant for filling Special Leave Petition in the Supreme Court as mentioned earlier and that papers received by him in that connection were forged and not genuine and that enquiry was required to be taken against the appellant. The respondent filled complaint supported by an Affidavit u/s 35 of the Advocates Act, 1961 praying that the Sanad of the appellant be suspended or the name of the appellant be removed from the State Roll of Advocate on the ground of professional misconduct.
4. The complaint u/s 35 of the Advocate Act, 1961 (hereinafter be referred to as the “Act” for the sake of brevity) was received by the State Bar Council on 11th November, 1992. The State Bar Council referred the aforesaid compliant to its Disciplinary Committee by Resolution No. 70/1993 dated 23rd January, 1993. Notice dates 28-2-1993 was issued to the parties and the first date fixed for hearing was 8th April, 1993. The case was eventually posted for framing of issues and accordingly on 26-8-1993 the following issues which are on page 457 of the file of the State Bar Council were framed by the Disciplinary Committee:-
a) Whether the respondent advocate had been engaged by the petitioner for filing of a S.L.P before the Supreme Court against the order of M.P. 14/1992 dated 8-1-1992 and for this purpose he paid sum f Rs. 15,000/- to the respondent-advocate towards his fees?
b) Whether the alleged copy of SLP and copy of Supreme Court order was sent by the respondent to the complainant?
c) Whether the copy of the SLP order and petition sent by the respondent advocate was not genuine and a fake one?
d) Whether on proof of the above allegations, the respondent advocate is guilty of proof of professional misconduct?
5. Thereafter the evidence was recorded and after appreciation of evidence the Disciplinary Committee of the State Bar Council though it fit to answer all the four issues in the affirmative and came to the conclusion that the appellant is guilty of professional misconduct and passed an order on 2-4-1994 to the effect that the SANAD of appellant shall stand suspended for a period of 7 years; however, in the event of respondent paying Rs. 15,000/- with interest at bank rate to be calculated from the date of receipt of the respondent and on a certificate of the same by the Bar Council of Madhya Pradesh the SANAD f the appellant would only remain suspended for a period of five years.
6. Thereafter, this appeal came to be preferred challenging the order of the State Bar Council punishing the appellant for professional misconduct. At the time of hearing of this appeal, learned counsel appearing for the appellant raised a preliminary contention that the Disciplinary Committee of the State Bar Council passed the impugned judgment and order beyond the period of one year as contemplated u/s 36-B of the Act and the impugned order was clearly vitiated having been passed beyond the period of limitation from the date of reference on the compliant to the Disciplinary Committee of the State Bar Council. Further in support of this submission, reliance is sought to be placed on the Division Bench decision of the Madras High Court reported in 1986(2) Madras Law Journal 362, the photostat copy of which is produced on record but the present appellant for ready reference. After going through the relevant dates we find that the aforesaid submission of learned counsel appearing for the appellant is well founded. We asked the counsel to tell us whether this contention was taken by the present appellant before the State Bar Council and we also enquired from the counsel as to whether this ground had been taken in the memo of Appeal. We were informed by the counsel and we also find that this contention was informed by the counsel and we also find that this contention was not taken before the State Bar Council and the appeal memo is also silent as far as this ground is concerned. However, since this issue is a pure question of law and goes to the root of the matter we have permitted the learned counsel to take up this contention and we feel that without entering into the merits of the case, we can dispose of this appeal on a short, but substantial question of law as to whether the impugned judgment and order dated 2-4-1994 of the Disciplinary Committee of the State Bar Council is vitiated on the ground that it is passed beyond the period of limitation of one year envisaged under section 36B(1) of the Act. For the purpose of deciding this issue it would be expedient to place certain relevant date with regard to the dates of the proceedings. It is pertinent to note that the State Bar Council actually received the complaint on 11th November 1992. The State Bar Council referred the complaint to its Disciplinary Committee u/s 35(1) of the Act on 23rd January, 1993 by its Resolution No. 70/1993 dated 23-1-1993. This resolution of the State Bar Council is on record of its file at page 39. Notice was issued to the parties on 28th February, 1993 and the first date fixed for hearing was 8th April, 1993. The impugned order was passed by the State Bar Council on 2nd April, 1994. These dates emerging from the record and proceedings of the matter before the Disciplinary Committee of the State Bar Council can hardly be disputed.
7. The learned counsel appearing on behalf of the appellant has contended that when Section 36B(1) provides that the proceedings shall be concluded within a period of one year from the date of receipt of the complaint or the date of initiation of proceedings at the instance of the State Bar Council as the case may be, then the complaint having been received by the Bar Council on 11th November, 1992 and the date on which the State Bar Council referred the complaint to its Disciplinary Committee on 23rd January, 1993 by resolution number 70/1993 the disposal of that complaint by the impugned order dated 2nd April, 1994 is admittedly beyond the period of one year. Therefore, according to the learned counsel for the appellant, the Disciplinary Committee of the State Bar Council exercised jurisdiction which it was not entitled to act inasmuch as the proceedings automatically stood transferred to the Bar Council of India since it was not concluded within the stipulated period before the Disciplinary Committee of the State Bar Council. In this context the learned counsel for the appellant has also invited our attention to the provisions of Rule 17(2) of the Bar Council of India Rules on which reliance is placed. Rule 17(2) of the Rules framed u/s 49(1) (f) of the Act contained in Part VII, pertaining to disciplinary Proceedings and Review, Chapter I, Section – A reads as under:-
Rule -17(1) XXX XXXXXX
(2) The date of receipt of the complaint or the date of the initiation of the proceedings at the instance of the State Bar Council shall be the date on which the State Bar Council refers the case for disposal to its disciplinary Committee U/s 35(1).
(3) XXX XXXXXX
(underline supplied for emphasis)
Rule 17(2) of the Bar Council of India clarifies the connotation of the terms “the date of receipt of the complaint or the date of initiation of proceedings” and it provides that the said date shall be on which the State bar Council refers the case for disposal to its Disciplinary Committee u/s 35(1) of the Act. As stated earlier, in the present case, the State Bar Council referred the complaint to its D.C. for disposal on 23rd January, 1993 and the order ultimately came to be passed on 2nd April, 1994, which is clearly and undisputedly beyond the period of limitation as prescribed u/s 36-B(1) of the Act vitiating the impugned order of D.C of the State bar Council. The provisions of section 36-B(1) of the Act read with Rule 17(2) of the Bar Council of India rules clearly show that where the matter is not decided by the D.C. of the State Bar Council within the period of one year, the order made by it is vitiated, and the proceedings get automatically and statutorily transferred to the Bar Council of India in view of the mandatory words or language of Section 36-B of the Act and the Bar Council of India is required to deal with these proceedings as if it is a proceedings u/s 36-B(2) of the Act. We are of the view that in the present case as the matter was decided by the D.C. of the State Bar Council beyond the period of one year as prescribed u/s 36-B of the Act, the impugned order passed by the Disciplinary Committee of the State’s Bar Council has overstepped and transgressed the limitation prescribed by Section 36-B of the Act. In view that we are taking, we are fortified by the decision of Madras High Court in the case of Mohd. Mustafa K.A Vs. Bar Council of Tamil Nadu reported in 1986(2) Madras Law Joumal 363 (DB) the Photostat copy of which is produced by the appellant on record of the case before us. On the facts and circumstances of the case, we hold that the D.C. of the State Bar Council having decided the matter beyond period of one year prescribed u/s 36-B of the Act, the impugned order dated 2-4-1994, passed by the D.C. of the State Bar Council is vitiated and is liable to be set aside.
8. The question now is what should be further course insofar as the complaint is concerned, section 36-B of the Act itself provides that, if the State Bar Council does not decide the complaint within the period of one year then such proceedings shall stand transferred to the Bar Council of India, and the bar Council of India may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of section 36 of the Act. The natural consequence of holding that the impugned order of the State Bar Council is vitiated, inasmuch as the prescribed period of one year is over and since the complaint is not disposed of by the D.C. of the State Bar Council within the prescribed period is that the proceedings must obviously be treated as pending. Having regard to the mandatory words of section 36-B of the Act, the proceedings shall stand transferred to the Bar Council of India and proceedings must now stand atomically transferred to the Bar Council of India and are required to be proceeded with disposed of in accordance with law by the Bar Council of India. It cannot be gainsaid that the proceeding before the Bar Council of India is now the original proceeding awaiting disposal.
9. It may be mentioned that the D.C of the State Bar Council has already recorded evidence, portion of which falls within the prescribed period of one year u/s 36-B(1) of the Act; whereas some portion of which was recorded after the statutory period of one year was over. It will be for the D.C. of the Bar Council of India to consider after hearing the parties whether it would prefer to act on the evidence already recorded or whether the parties would desire to give any other or additional evidence before the D.C. of the Bar Council of India.
10. In the result the following order is, therefore, passed:-
11. The appeal is partly allowed. The impugned order dated 2-4-1994 of the D.C Indore Bench, Bar Council of Madhya Pradesh passed in complaint case no. 67/1992 is hereby quashed and set aside. The proceedings of complaint case No. 67/1992 stand transferred to the Bar Council of India and the Bar Council of India will now proceed further in accordance with law. The parties be accordingly informed about this order. There shall be no order as to costs.
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
B.C.I.T.R CASE NO. 76/1995
“C” … COMPLAINANT
V/s
“R” … RESPONDENT
PRESENT:
ShriJagannathPatnaik … CHAIRMAN
ShriAshok Deb … MEMBER
ShriS.K.Padhi … MEMBER
JUDGMENT
DATED 9th December, 1996
Briefly stating the facts of the case are that the complainant filed a complaint against the respondent on the allegations that he engaged the respondent to file a case in respect of the theft committed in his house. It is alleged against the respondent that the respondent gave him a draft of the complaint which was sent to the Commissioner of Police and other authorities by the complainant. The respondent also issued notice to the SHO Police Station, Lajpat Nager, New Delhi, on behalf of the complainant for supplying the enquiry report. In respect of the complaint lodged by the complainant against Mool Chand and sons who have allegedly committed the theft in the house. It is further alleged that till issuing of the notice no fees was settled between the complainant and the respondent. But the respondent told that he would charge minimum amount of fees. It is further alleged that on 8-12-1993 the complainant paid Rs. 2,000/- to the respondent and also gave his documents for filing the complaint in the court of law. Again he paid Rs. 2,000/-on 5-1-1994 for Court expenditure and preparing the case. After that the respondent asked him to being certain papers like bank account etc. In the meantime the complainant became busy, and asked the respondent not to file the case and later on asked him to return the fees of Rs. 4,000/- which he had allegedly paid to him. On these allegations the complainant came to the bar Council and sought an action against the respondent for professional misconduct.
Notice was sent to the respondent who in his reply denied the allegation and stated that the allegations in the complaint were false and he denied having received any money from the complainant. Further stated that the complainant came to him for filing the complaint case regarding the alleged theft in the house by some neighbours. As he alleged that his complaint to the police was totally ineffective, the respondent issued two notices to the police authorities without charging a single penny from the complainant. A draft of the complaint was also prepared and since heavy amount of theft was alleged to have been involved, the complainant was asked to bring the photocopy of the bank account to substantiate his charges. He was asked to pay legal fees of Rs. 2,200/- for his complaint case as well as the earlier notice issued by him. But after a few days of drafting of the complaint, the complainant came to him and told him that he did not want to file the complaint and asked for the return of the papers. The respondent asked him to sign the receipt for the said paper which the complainant refused and left his office and filed the present complaint against him.
On the bases of the pleadings following issues were framed:-
i) Whether the respondent took Rs. 4,000/- from the complainant? Whether the respondent did professional misconduct by not rendering the service to the complainant, if he has paid the alleged amount?
ii) Any other professional misconduct.
The complainant examined himself as C-1 and closed his evidence. Whereas the respondent also examined himself as RW-1 and did not adduce any other evidence.
The complainant in his statement stated that the respondent Advocate gave him a draft of notice which he typed and then sent it to the SHO which was marked as Ex C-1. He also started that one more notice was given by the respondent on behalf of the complainant on 20-8-1993 which Ex. C-II. He has stated that he paid Rs. 4,000/- to the respondent first installment of Rs. 2,000/- was paid on 18th December, 1993 and second Rs. 2,000/- was paid on 5-1-1994. He had signed the vakalatnama and gave two sets of papers of the respondent for filing the case. The respondent demanded Rs. 11,000/- as his fees. But later on he told the respondent not to file a case and demanded the money and papers back which the respondent refused to do so. The complainant has examined himself as a witness and in his statement he stated that he engaged the respondent for giving notice to the police in respect of theft committed in his house. The notice was drafted by the respondent which was given to the complainant for typing which he typed and sent the same. The copy of notice is marked as Ex. C-1. Another notice was also given by the respondent on 29th August, 1993 the copy of the same was marked as Ex. C-II. He further stated that he gave Rs. 4,000/- to the respondent towards expenses which were paid to the respondent in two installments of Rs. 2,000/- each on 18-2-1993 and 5-1-1994. The respondent demanded Rs. 11,000/- for filing a case which the complainant later on asked him not to do so and then demanded his money and papers back from the respondent which he refused. On the question put by the Committee the complainant stated that he was prepared to pay the drafting of the notices C-1 and C-2 which the committee may decide as the reasonable amount. During the course of cross-examination he has stated that he borrowed this amount of Rs. 4,000/- from his neighborur, the name of which he refused to disclose. She was a household lady and no document was executed for taking the loan from her by the complainant. He has denied the suggestion of the respondent and the respondent was prepared to return the papers provided he gives him the receipts of those papers. He also denied having paid any money to the respondent. No other witness was produced by him in support of his case.
On the other hand the respondent examined and stated that on 14-6-1993 the complainant was referred by Mr. Manoj Swarup, Advocate practicing in Supreme Court to help the complainant as he was a poor man without charging any fee. Accordingly he sent letters on his behalf to the Commissioner of Police and also gave notice to the SHO P.S. Lajpat Nagar, the copies of which have been Ex C-I and C-II. He further states that he sent an application on 28-9-1993 to the Lt. Governor, Delhi, for permission to file the complaint against the Police officers, for filling, the complaint promised to pay in January, 1994 but later on he came and demanded his papers back and when he told him to give receipts of his documents and the vakalatnama he refused to do so. He further stated that he did not charge any fee from the complainant and on the contrary incurred expenses for sending the notices and the complainant has filed a false case against him. In cross-examination by the complainant the respondent denied having received Rs. 4,000/- as alleged and also denied that he demanded Rs. 11,000/- as his professional fee for filing the complaint on behalf of the complainant. He has denied that he refused to return the papers of the complainant only after he would pay Rs. 11,000/- by way of his professional fee. The respondent also closed his evidence without producing any other witness.
The case was fixed for arguments and parties expressed their desire to file written arguments. Written arguments on behalf of the complainant were filed but respondent failed to file written arguments and the case was fixed for 22-6-1996. The matter was deliberated and we have perused the pleadings, documents and evidence on record as well as the written arguments of the complainant. The crucial point involved in this case is whether the complainant has proved his case to the effect that he paid Rs. 4,000/- to the respondent as alleged. The complainant has not produced any convincing evidence to show that he paid Rs. 4,000/- to the respondent as alleged. In his cross-examination he has given very Evasive answers of having received the money from his neighbour and refused to produce her in evidence. Even her name has not been disclosed by the complainant. In answer to the question by the committee he has agreed to pay the reasonable amount for the notices sent by the respondent and if he had paid Rs. 4,000/- to the respondent, he would have positively said that the reasonable amount be deducted from the amount of Rs. 4,000/- which he had already paid. It is not uncommon in practice when a senior colleague sends a case to anther colleague with a request for helping a client, and advocate to whom the case is sent normally help the person and in this case also we feel that the respondent might have issued notices without charging any fees from the complainant. It was also not unjustified by the respondent to take a receipt from the complainant at the time of handing over the documents which the complainant was not willing to do so for reasons best known to him.
Since the complainant has failed to establish that he paid Rs. 4,000/- to the respondent we find complaint has been filed against the respondent with male fide intention in order to harass the respondent.
We, therefore, are of the opinion that the complainant has failed to prove his case against the respondent for professional misconduct. As such the complaint is dismissed. The parties are left to bear their own costs.
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO.43/1996
“A” … APPELLANT
V/s
“R” … RESPONDENT
PRESENT:
ShriD.V.Patil … CHAIRMAN
ShriS.K.Karvendhan … MEMBER
ShriShobha N Shinde … MEMBER
JUDGMENT
DATED 18thMay, 1997
PER CHAIRMAN
This is an interesting matter in which the parties were fighting on preliminaries rather than going deep into the issues involved. The matter involved a complaint lodged with the Bar Council of Tamil Nadu by the present appellant to the effect that certain applications in the form of complaints addressed to various authorities by the respondent amounted to “other” misconduct on the part of the respondent. When the matter was before the State Bar Council, it passed a resolution to the effect that there was prima face case of misconduct and therefore it was placed before a Committee for the final adjudication. Before the D.C. of the State Bar Council a preliminary issue was raised by the respondent that there was nonexus or proximity in his standing as a lawyer and the application made by him to various authorities and therefore the Committee could not go into the merit being sans jurisdiction. The point was upheld by the committee and by its order dated 10-8-1996 it dismissed the complainant on that date when the parties were called twice, the complainant was found to be absent as on earlier dates also. Though a vakalath had been filed on behalf of the complainant, no lawyer was present before the committee on 10-8-1996. The preliminary objection had been filed as early as on 26-4-1996. And a copy of the same ought to have been taken by the lawyer on behalf of the complainant. When a lawyer had filed his vakalath, it was his bounden duty to attend to the case of his client an follow the dates with vigilance. It was neither the fault of the committee nor of respondent if no notice was taken of the preliminary objection raised on 26-4-1996 by the complainant’s said. On this scenario, the committee heard the advocate for the respondent on 10-8-1996 on the point of preliminary objection. While the said advocate was concluding his argument Sri N.Balasubramaniam, Advocate, Madras, entered the committee hall and presented a vakalath which was not is proper form. The committee requested him to make his submission on the preliminary issue after rectifying the vakalath. But Sri N. Balasubramaniam refused to argue on the ground that he had been engaged only n 5-8-1996 and was not ready with the brief. The Committee brought to his notice the facts that the matter was pending fire for a long time and that they would not allow any protraction. Sri N. Balasubramaniam said that he would apply for adjournment, which he did but the committee rejected the same as it felt that the complainant was trying to prolong the matter. Earlier to that on 27-7-1996 the case was fixed and on that day the complainant and his lawyer was absent and therefore fresh notices were again ordered to be sent to the complainant. All this information could be culled out from the proceedings maintained by the said committee.
It was contended by Sri R. Swaminathan, who appeared for the complainant before us that he was not aware of the preliminary objection and hence he wanted time. This happened on 17-5-1997. We asked the respondent’s lawyer for furnish a copy of the preliminary objection to Sri R. Swaminathan. According the copy which was kept on record for the complainant and which was not so far collected by him was given to his lawyer in his presence, on 17-5-1997. It was agreed that the matter would be finally argued the next day i.e., 18-5-1997. Accordingly the parties were heard today through their counsel. Sri D.V.P.Raja, the complainant was also present. It was contended by Sri R. Swaminathan that the Bar Council of Tamil Nadu, having passed a resolution that there was a prima face case against the respondent, its D.C could not have in law dismissed the said same complaint, without hearing it on merits. It was simultaneously argued that though the respondent was called upon to give his written say on the complaint, he never filed it and hence the D.C could not have dismissed the complaint on a preliminary issue. We are not impressed by both these arguments. Merely because the Bar Council of Tamil Nadu passed a resolution that there was a prima face case to be enquired into by D.C. does not made the said committee powerless to consider the matter on the various issues raised before it even of a preliminary nature. An analogy could be drawn from criminal prosecution. Merely because a prosecuting agency comes to the conclusion that there is evidence which would be sufficient to file a charge sheet/against a suspect does not mean that the trial court cannot uphold the objection raised at preliminary stage either to its jurisdiction or the maintainability of such a prosecution and thereby discharged the accused. We are of the opinion that when the Bar Council of Tamil Nadu passed the resolution holding a prima facie case against the respondent, it did not have the benefit of the preliminary objection raised by the respondent later on. We are sure if such an objection had been raised at that stage, probably the matter would not had landed in the committee. That takes us to the second contention raised by Mr.Swaminathan, Advocate for the complainant, that the respondent did not file his written say. This argument is devoid f any merits, as it is nowhere compulsory for the respondent to file his written say. Again the anology from criminal prosecution could be drawn. As accused person need not open his month, since the initial burden of proving the case against him is on the prosecution or the complainant as the case may be. Here also the burden is on the complainant to prove misconduct against an advocate. He need not file his written say. It is sufficient if he cross examines the witnesses of the complainant and shows thereby that no case of misconduct is made out against him. He could also show the same by pointing out that there is no case which requires replying to.
The disciplinary committee of the State Bar Council dismissed the complaint mainly on the ground that the complainant had produced only a Xerox copy of document No.9 and had not filed other documents; though called upon to do so that the complainant if he felt that the matter gave rise t defamation could approach a civil or criminal or both courts and that before an act of an advocate could amount to “other” misconduct as contemplated u/s 35 of the Advocates Act, 1961 such conduct should have some nexus or proximity with discharge of professional duties. We may not go full hog with the reasoning of the said committee merely because the complainant had the doors of civil or criminal courts open is no ground not to persue a parallel remedy allowed u/s 35 of the Advocate Act. As regards “other” misconduct, it was submitted by the advocate on behalf of the respondent by citing as many as 25 cases that such act had to be some how connected with the duties of a person as an advocate. We were taken to the facts of these cases to show that acts which was submitted by the respondent’s lawyer that such act should be as held in various decided cases, some how connected with his profession as an Advocate; for example soliciting advertising, setting bribe, bribing judges, purchasing decrees etc, as mentioned in detail in the written arguments submitted by him. We are not inclined to agree with this. The categories of “other” misconduct have not closed. The case law cited is only illustrative and confined to its own facts, and not exhaustive. New category of “order” misconduct could arise in the changing time. Life is not static and so also the ingenuity of a person to mis-conduct. Therefore the case law could be of a very limited value under such circumstances. There fore we are not inclined to accept the contention of the respondents lawyer that the alleged other misconduct should be one of the kinds mentioned in the cited caases.
But we could still uphold a final conclusion reached by the disciplinary Committee of a State Bar Council with a different reasoning. We have ourselves gone through the list of charges accompanying the complaint. These charges are said to have been made by the respondent against the institution namely madmai Institute of Social sciences. These complaints have been made to the University Grants Commission, to the MaduriKamaraj University C.V.I., the Ministry of Welfare, Home Secretary, Delhi, I.G.Crime, Madras, Madurai Corporation and the Deputy Registrar, T.N.Regn. Deptt. The gist of all these complaints seems to be in relation to the functioning and mismanagement in the Madurai Institute of Social Science. These authorities to whom various complaints were made were directly concerned with the mismanagement complained about and therefore it cannot be said that the complaints were made just to fight the institute or any of its officers including Dr.D.V.P.Raja. In spite of our repeated queries, Sri Swaminathan Advocate, who appeared for the complainant could not point out any particular malice in making such complaint. These complaints have been made only to the concerned authorities and not published before the general public. Their object seems to be to rectify the mismanagement, if any. It was for the authorities to undertake enquiry, which we are told, was initiated and is still going on. Sri Swaminathan Advocate, for the complainant, submitted that an Advocate has to be a Gentleman and must de deport himself in a manner befitting a gentleman, though he could not really pin point that so called ungentlemanly acts on the part of the respondent. He further contended that the respondent was not acting on behalf of his client but had undertaken a so-called clinging operation of his own. The flip said of this argument, if taken to its logical end, would mean that an advocate can act but only on behalf of his client a proposition very difficult to swallow. An advocate has also a role to play as a vigilant citizen to point out the evils prevalent in society and in institutions funded by public money or even otherwise. A perusal the author of the various complaints made to by the respondent would show that apparently the motivation was to bring out the mismanagement in the said institute. History, particularly of our freedom movement, is replete with illustrious brothers and sisters from the Bar, who fought against foreign rule and all kinds of injustice. That role has not been taken away from the members of the Bar. In-deed it would be a sad day if someone were to contend that an advocate has to be only a mouth-piece f his client and has no vice of his own. We cannot countenance such a situation. We feel that taking the entire case of the complainant as it is, no case of professional or other misconduct has been made out against the respondent and therefore proceed to dismiss this appeal
We must also mention the fact that the complaint applications made by the respondent to the various authorities were mainly against Maduri Institute of Social Science and not really against Dr. Raja. The said Institute and Dr. Raja have been alternatively shown to be the complainant in this case, including the vakalath of Sri Swaminathan, Advocate. If Dr. Raja was authorised by the said Institute of file and prosecute his complaint, no such resolution has been produced on record. In the result, we pass the following order.
ORDER
The appeal is dismissed. No order as to costs.
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO. 13/1991
“A” … APPELLANT
V/s
“R” … RESPONDENT
PRESENT:
ShriD.V.Patil … CHAIRMAN
ShriS.C.Chawala … MEMBER
ShriS.Gpakumarn Nair … MEMBER
JUDGMENT
DATED 14thDecember, 1996
This is an appeal from the order of the State Bar Council of Andhra Pradesh dated 13-7-1991 in C.C. No. 21/1990 by which the present appellant was found guilty of professional and other misconduct and his name was struck off from the roll of Advocates maintained by the State under Provisions of Section 35(3) (d) of the Advocates Act, 1961. The allegations against the appellant were that Sri Radhakishan, S/o Shankar Singh, was the owner of some houses in Singavaram Village, Alampur (W), MahaboobnagarDistt. These houses were submerged in Srisailam Project and ultimately a compensation to the tune of Rs. 2,80,533.40 ps. Came to be deposited by the Govt. In Sub-Court, Gadwal. The present appellant had come to be engaged on behalf of the said Sri Radhakishan in O.P. No. 1788 of 1984 in which the order of compensation came to be passed. It is claimed by the present respondent that she used to accompany her husband, namely the said Radhakishan, whenever he would meet the present appellant. It is the claim of the complainant that her husband has been missing since 1985 and an advertisement to that effect had been given in local newspaper by her brother-in-law. The amount of the compensation had been sent by the Court to the Canara Bank, Mahabobnagar Branch, to be deposited into the account of Radhakishan. It was on 18-7-1986. It is further claimed that the present respondent was requesting the appellant to help her and her two sons in getting the amount withdrawn, thereby making it clear that the appellant was aware of the fact that the Radhakishan was missing. The appellant promised to help the complainant but avoided doing so on some pretext or the other. Subsequently, the complainant, on enquiries, came to know that the said amount had been withdrawn from the Bank on 28-5-1987, supposedly by her husband. Thereafter, the complainant went to the appellant and asked for the return of the amount and on his refusal sent a notice on 15-2-1990. The notice came unserved. It is further claimed that all but Rs 80,533.40ps. came to be returned to the complainant b the appellant. The remaining amount as well as the interest due on it was refused by the appellant.
The appellant has denied the entire case of the complainant. He has claimed that he does not know the complainant to be the wife of Radhakishan. Mr.Radhakishan was an illiterate person and therefore with his photograph the account was opened in Canara Bank at Mahabobnagar. He also pleaded ignorance about the whereabouts of Radhakishan. He further denied that he forged any documents or withdrew any amount. He has alleged that he came to know that the complainant was not living with her husband since 1994.
On these counter allegations, the Committee of the State Bar Council proceeded to consider the complaint. The complainant never presented herself or any other witness before the Committee. The notices sent to her came unserved. Even before us, the complainant never appeared and therefore this Committee asked the appellant to furnish the present address of the complainant. Thereafter notice of today’s meeting came to be sent to her which was duly served as the record would show. In any case it is to be noted that no oral evidence has been led by the complainant in support of her allegations. The Committee of the State Bar Council proceeded to consider the matter on the basis of its own comparison of the alleged thumb impressions of Radhakishan on the original petition u/s 18 of the Land Acquisition Act and the affidavit dated 12-7-1986. The committee came to the conclusion that in spite of the fact that Radhakishan was missing since 1985, his thumb impression came to be affixed to the affidavit dated 12-7-1986 which had been presented by the appellant. The Committee also suggested that it was necessary to hand over the matter for further investigation to the nearest Magistrate or the Police Officer.
We are unable to agree with the reasoning given by the Committee of the State Bar Council for the simple reason that none of the allegations made by the complainant have been supported by substantive evidence. Merely because an advertisement came to be published in a newspaper would not lead us to the conclusion that the said Radhakishan was really missing. We have no witness before us who has deposed to the fact as to under whose authority the said advertisement came to be published. We do not have either the original scripts of the advertisement or any one claiming to have given the said advertisement. Cuttings from newspaper items cannot be made the basis of decisions dealing with lives of professionals. In the absence of any material whatsoever, the State Committee was not justified in drawing the inference that the newspaper item dated 3-2-1986 about Radhakishan’s missing would not have been made unless it was correct. Unfortunately, the State Committee drew another inference which was also uncalled for. It self proceeded to compare the thumb impressions on the two documents and came to the conclusion that the thumb impression on the affidavit was not of Radhakishan. The further inference that the withdrawal of Rs. 2,79,956.40ps. on 28-5-1987 by a cheque No. 215003 was also of dubious nature was also not born out by facts. It was also surprising that the State Committee, without any evidence, proceeded to observe that the appellant had managed the complainant and had withheld her appearance before the Committee.
In view of this discussion, we are unable to agree with the view taken by the D.C. of the State Bar Council of Andhra Pradesh.
Another flaw in the proceedings was pointed to us, namely, that no issues or charges were framed in this case that was the only flaw, in normal course, we would have ourselves framed necessary charges or issues and thereafter proceeded to hear the matter, but in view of the total lack of evidence in support of the allegations, we are left with no other option than to allow the appeal and to set aside the impugned order.
In the result, D.C. Appeal No. 13/1991 filed by the appellant Advocate, Mahaboobnager, is allowed and the order dated 13-7-1991 passed by the D.C. of the State Bar Council of Andhra Pradesh in C.C. No. 21/1990 removing the name of the appellant from the State Roll of Advocates is hereby set aside. The appellant is hereby found not guilty. No order as to costs.
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(D.V.PATIL) (S.C.CHAWLA) (S.GOPAKUMARAN NAIR)
Chairman Member Member
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO.24/1990
“A” … APPELLANT
V/s
“R” … RESPONDENT
PRESENT:
ShriDhairyasheel V. Patil … CHAIRMAN
ShriR.S.Chahar … MEMBER
ShriKhazan Singh … MEMBER
JUDGMENT
DATED 4thJUNE, 1993
This is an appeal arising out of the Order dated 7-6-1990 passed by the Disciplinary Committee of the Karnataka State Bar Council in D.C.E No. 18/1989 dismissing the complaint and exonerating the respondent. The brief facts leading to the complaint were as follows.
The complainant is a son-in-law of one late Mary Raymond. The complainant was the general power of Attorney during the life time of Mrs. Raymond and was the legal representative of her estate. The respondent was the lawyer representing Mrs. Raymond and had prepared a will for her. The said will was dated 1-7-1968. It was kept in the safe custody with the respondent and the receipt to that effect, was passed by him on 5-7-1968. Subsequently Mrs. Raymond changed her lawyer and engaged Mr. George de Costa as her Advocate who requested the respondent to hand over the will, which request was refused by the respondent. This happened in 1978 where after Mrs. Raymond prepared a new will be her new lawyer on 4-1-1982. The present complainant wrote to the respondent to return the will. He again wrote on 15-4-1986. The respondent did not care to reply to either of these letters. The Complainant thought that the conduct of the respondent was mischievous and amounted to Breach of Trust which could have resulted into serious damage to Mrs. Raymond had she died intestate. Therefore the complainant filed a complaint before the State Council. By the resolution No. 110/87 dated 12-7-1987 the State Council rejected the complaint holding there in that no prima facie case was made out. The Revision Petition referred by the present Appellant was allowed by the Bar Council of India and the matter was remanded for fresh hearing. Thereafter the parties appeared and the respondent filed his say on 3-7-1989. The complainant thereafter filed rejoinder on 12-8-1989. The Disciplinary Committee of the State Council, after taking into account the submissions and the case law filed by either side proceeded to hold the respondent not responsible for any professional misconduct under Sec. 35 of the Advocates Act, 1961 as alleged by the complainant. Having aggrieved by the said order the appellant came to the Bar Council of India. We have gone through the submissions, both oral as well as written, made before us. It is not disputed that the late Mrs. Raymond had engaged the respondent to prepare her Will and to keep it in safe custody with him. There is some dispute, though not a serious one, as to the return of the Will to Mrs. Raymond in her life time or to anyone on her behalf. It is also not disputed and in fact has been held proved by the Disciplinary Committee of the State Bar Council that the complainant was entitled to demand the return of the Will of Mrs. Raymond. However we are not in agreement with the findings of the Committee that the said Will had become res nullius and that therefore the respondent was not bound to return it. The said Will was the property of Mrs. Raymond and after her death that of the complainant. Therefore he was entitled to demand its return and the respondent was duty bound to do the same. Any document, irrespective of its value, which has been given in the custody of the Advocate in his capacity as a legal adviser of a party has to be returned to the party concerned or to its representatives, particularly when repeated demands were made to do so. Not agreeing to the reply to this demand and not actually returning the Will to the complainant would definitely amount to breach of trust on the part of the lawyer concerned thereby making him liable for professional misconduct under Sec. 35 of the Advocates Act, 1961. Apart from the question whether such a document has been misused or its non return could have caused damage to the interest of the complainant, the mere fact of refusal to return it amounts to misconduct on the part of the Advocate. We also are not able to agree with the observations of the State Bar Council Committee that after the revocation the earlier Will became a mere scrap paper. In fact even the said Committee held that the respondent was bound to return the said Will even if it was a worthless paper after revocation. In fact the Committee held that the position of the respondent was in the nature of a trustee and as such the complainant was entitled to demand possession of the said Will. There was nothing confidential about the Will.
The Disciplinary Committee of the State Bar Council gave too much emphasis on the point of delay in filing the complaint. It also referred to some strained relations between the parties. We are not inclined to agree with these findings. A mere delay or strained relations between the parties per-se would not make a complaint false. These are the points which should put us on ground while appreciating the contentions raised on behalf of either side. But in a case in which most of the facts are admitted there is little to do except holding that non return of the property of the complainant does amount to professional misconduct on the part of the Advocate. The respondent tried to submit that will had been returned but no convincing evidence to that effect was produced.
In the result, we proceed to allow the appeal by setting aside the order of the Disciplinary Committee of the Karnataka State Bar Council passed on 7-6-1990 in D.C.E. No.18/89. We hold that the complainant (the present appellant) has succeeded in proving that the respondent committed professional misconduct and is thereby liable under Section 35 of the Advocates Act, 1961. We hereby proceed to hold respondent Shri “R”, advocate, Bangalore, guilty of professional misconduct under Sec. 35 of the Advocates Act, 1961 and suspend him from practice for a period of one year. Order accordingly.
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(DhairyasheelV.Patil) (R.S.Chahar) (Khazan Singh)
Chairman Member Member
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
D.C.APPEAL NO.19/1993
“A” … APPELLANT
V/s
“R” … RESPONDENT
PRESENT:
ShriGirish D. Bhat … CHAIRMAN
ShriBhagat Ram Sharma … MEMBER
ShriJamshedPaediwala … MEMBER
JUDGMENT
DATED 30thOctober, 1995
This appeal is directed against the order dated 2nd April, 1993 passed by the Disciplinary Committee of the Bar council of Himachal Pradesh in Case No. 4/1991 suspending the licence of the appellant-advocate for a period of three months. The Committee heard this appeal on 26-5-1995 at Shimla. Since Sri.JamshedPardiwala the third member could not be present on that date, therefore this appeal has been now fixed today for deliberations amongst all the three members. All the three members are present today and we have held deliberations amongst ourselves after perusing the entire original records and have considered the respective contentions of the parties. From our deliberations the following points emerge for determination in this appeal.
Point No. 1 : Whether the order under appeal is liable to be set aside?
Point No. 2 : Final order.
Findings on the above points:
Point No. 1 : Yes
Point No. 2 : Appeal accepted.
Reasons for findings:
Appellant-advocate has been held guilty vide impugned order dated 2-4-1993 passed by the Disciplinary Committee of the Bar Council of Himachal Pradesh and his licence to practice as an Advocate has been suspended for a period of three months. The allegations against the appellant as contained in the complaint filed by Smt. “R” are that on 19-3-1993 “A” Appellant identified Smt. Batni, W/o. ShriHaru wrongly in pace of Smt. Churi D/o Late Maddi at the time of attestation of general Power of Attorney executed by Smt. Churi, prito, Vidya, daughters of late Sri Maddi and Smt. Akko, widow of Sri Maddi, all residents of Village Singpura Bhagani, Thei, paonta Sahib, Distt. Sirmur, Himachal Pradesh before the Sub-Registrar, paonta Sahib, Besides this, the other allegations against the appellant are that he was habitual in disclosing the privileged communications / secrets of his clients to the opposite parties for his personal benefits and further that the appellant had been taking up briefs by misusing the names of presiding officers. There is also an allegation in the complaint that the appellant had been dealing in sale and purchase of landed property as a commission agent. In his reply before the Disciplinary Committee of the State Bar Council, the accused Advocate his denied all the allegations but has admitted that he had identified some of the ladies at the time of attestation of the General Power of Attorney, copy of which is Exbt.. P-2 in the original records. It is contended by the delinquent Advocate in his aforesaid reply that he acted in good faith at the instance of one Niranjan Singh as a document writer at Paonta Sahib who executed the said on behalf of the executants. The learned Disciplinary Committee of the State Bar Council has said nothing about the other allegations in the complaint except the allegation of wrong identification of Smt. Batni as Smt. Churi and the members of the D.C. below have held the Appellant guilty of professional misconduct on this count alone. As observed earlier we have thoughly perused the entire documentary evidence on record. The General Power of Attorney is executed by four ladies, the three i.e., Prito, Vidya and their mother Akko were present at the time of execution and attestation of the document. The allegation is that in place of Churi Smt. Batni was made to be present and participated in the act of execution and she alongwith other ladies appeared before the Sub-Registrar and the document was attested and registered and all these ladies are shown to have been identified by Sri. “A” Vakil, paontasahib and the document has been signed by Sri “A” as identifier and he has very rightly admitted this fact of identification. Now the simple question for decision remains whether Sri. “A” Appellant signed the aforesaid General Power of Attorney in good faith acting on the persuasion of Sri. Niranjan Singh, document writer or he did it with any malafide intention in order to cause wrongful loss to somebody. It is admitted case of the parties that there is no doubt about the identify of three other ladies. The Power of Attorney was also not acted upon not used to the prejudice of Sr. Churi Smt. Churi applied for cancellation of the Power of Attorney and for taking appropriate action against Sri niranjan Singh, document writer. Every Sri.Jagish Prasad, Holder of Power of Attorney of Smt. “R” has admitted this fact in his testimony before the D.C below. He has also admitted in his statement that the appellant was counsel for Sri. Khusi Ram in a suit filed by the Complainant against said Khusi Ram and the same was decided on 8-6-1990 by Sub-Judge, 1st Class, Paonta Sahib, copies of the Judgment and decree sheet are Exbt. R-1 and R-2. The complainant also made number of serious allegations against the appellant which later on were not pressed, possibly there was no evidence to prove the same. Appreciating or weighing entire matter in this background, we have no hesitation to accept the explanation of the appellant that he identified Smt. Batni as Smt. Churi in good faith on the persuasion of Sri. Niranjan Singh, Document Writer. An advocate cannot be held guilty and punished for his bonafide action even if they are wrong. It is pertinent to observe that in District and Mofussil courts, an Advocate has to perform variegated functions, as he is in direct contact with the public there and sometimes he can become victim of manipulations without being guilty in any way. The cases of professional The cases of criminal offences. The guilty intent of the delinquent Advocate has to be proved and the charge has also to be proved beyond reasonable shadow of doubt. In this case we are of the view that the means rea is absent on the part of the delinquent Advocate and there is no reason to disbelieve that the acted in good faith. Our view is supported by the Punjab and Haryana High court in Balbir Singh vs State of Punjab reported in 1995 Chandigarh Law Reporter Page 167. In this case before the Punjab High Curt the advocate was facing criminal prosecution for wrongly identifying an executant of a document. However the Punjab High Court quashed the criminal prosecution on the ground of benafide and unintentional act of the Advocate. In another judgment reported in AIR 1940 Allahabad, page 289, it has been held that negligence on the part of Advocate does not amount to professional misconduct. In view of this discussion we hold the appellant not guilty of any professional misconduct. Consequently the appeal is allowed and the impugned order dated 2-4-1993 is set aside. No order as to costs. Copies of this judgment be sent to the parties.
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(Girish D. Bhatt) (Bhagat Ram Sharma) (JamshedPardiwala)
Chairman Member Member
THE DISCIPLINARY COMMITTEE OF THE BAR COUNCIL OF INDIA
B.C.I. TR. CASE NO. 104/1990
“C” … COMPLAINANT
V/s
“R” … RESPONDENT
PRESENT:
ShriJagannathpatnaik … CHAIRMAN
ShriAshok Kumar Deb … MEMBER
ShriS.K.Padhi … MEMBER
JUDGMENT
DATED 19th November, 1995
APPEARANCE:
For the complaint Mr. Denzil D Mello
For the Respondent None.
Per ShriS.K.Padhi, Member.
This proceeding has been initiated at the instance of a complaint made by “C”. Since this application could not be disposed of within the stipulated period by the Disciplinary Committee of the Bar Council of Maharashtra and Goa, it has been transferred to the Disciplinary Committee of the Bar Council of India under section 36B of the Advocates Act, 1961.
We heard the counsel of the complainant Sri Denzil D Mello at length and perused the submissions and the evidence adduced in this case. The complainant has examined one witness i.e., himself. The respondent has not examined any witness.
The gist of the case of the complainant as revealed in his pleadings and evidence is that the respondent was acting as his counsel for a property dispute at Goa. The suit in question was filed by the complainant as plaintiff on 15th March, 1982, in the court of the Rent Controller for eviction. The complainant had made several enquiries about the fate of his case and he was informed that the matter was pending. On 10th August, 1985, the respondent informed the Registered Attorney/ representative of the complainant that the case was pending. Since it is necessary for the purpose of this case, we extract the relevant portion of this letter:-
“ShriSuvarn R. Bandekar vs. Zuari River Literate. On account of Mr. Florian Machado being the speaker at the relevant time the case was kept pending in the Dy. Collector with intimation that date will be communicated later on. However till date I have not received any communication and in the meantime the file for the purpose of calculation rent has been handed over to Mr. SayyadHarun”. (Ex. C-1)
After receipt of this letter, it is stated that the complainant made enquiries in the count of Rent Controller and to his uttar surprise he found out that the case had been dismissed for default on 22-3-1984. Copy of the order sheet of the Court of the Rent Controller has been produced as Ex. C-2. It appears from the order sheet that on 6-5-1986, some Advocate appeared in the Court and it has been recorded in the order-sheet that nothing can be done further as the case has been already dismissed.
On 12-7-1986, the complainant issued a registered notice to the respondent (Ex. C-5). It is stated before us by the Counsel of the complainant that the suit which was dismissed for default was not restored subsequently by the courts and the complainant had to file a fresh suit. The respondent has filed a written statement as well as a written submission in this court. In the written statement he has admitted that he was acting as the counsel of the complainant till 10-8-1985. He has not given any explanation whatsoever as to under what circumstances the case had been dismissed for default on 22-3-1984 and what prompted him to issue letter dated 10-8-1995 informing the complainant that the case is pending and it has been stayed as one of the Defendant had become the Speaker f the Goa Assembly. The respondent’s written statement contains no material facts to explain the gross negligence and callousness in his professional conduct. The stand of the complainant has been fully corroborated in his evidence and documents. The respondent as stated earlier neither adduced any evidence nor produced any documents. Taking all these facts and circumstances into consideration, the committee is of the considered view that the respondent has committed gross professional misconduct not only is not taking diligent steps in attending the court but also mislead. The client by giving wrong information that the case is pending.
It is well settled that gross negligence on the part of the Advocate which leads t suffering and harassment of the client will amount to professional misconduct. In the instant case, there is n escape from the conclusion that the respondent has committed gross professional misconduct and such we find him guilty of the same.
Now coming to the question of quantum f punishment to be imposed, there is no extenuating circumstances and the Advocate has neither expressed remorse nor apology in the written statement. On the contrary, in the written statement, he has unnecessarily tried to put the blame on the complainant. We are informed by the counsel of the complainant that the Respondent-advocate has already been punished by the Disciplinary Committee and imposed the punishment of one month’s suspension for some such misconduct. The order passed in the earlier case appears to have been confirmed by the Hon’ble Supreme Court of India. A memo has been filed by the counsel of the complainant to that effect and some orders have been produced before us.
We are of the view that the punishment of suspension from practice for six months would meet the ends of justice. We, therefore, direct that the respondent be suspended for a period of six months from the date f notification by the State Bar Council of Maharashtra and Goa pursuant to out order. There will be no order as to costs.
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(Jagannathpatnaik) (Ashok Kumar Deb) (S.K.Padhi)
Chairman Member Member
Selected opinions of the Bar council of India
