Professional ethics 50 Bar council opinions The Bar Council sets forth ethical guidelines, Study Guides, Projects, Research of Ethics

Download Professional ethics 50 Bar council opinions The Bar Council sets forth ethical guidelines and more Study Guides, Projects, Research Ethics in PDF only on Docsity! KARNATAK LAW SOCIETY’S RAJA LAKHAMGOUDA LAW COLLEGE TILAKWADI, BELGAUM 50 SELECTED OPINIONS OF THE DISCIPLINARY COMMITTEES OF THE BAR COUNCIL OF INDIA G. M. WAGH 1998 CASE 1 (Negligence in Conducting Case) 25(1) 1998 IBR135 D.C. Appeal No. 16/1993 A vs. R Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members) Judgement Dated 5th October, 1996 FACTS OF THE CASE Complainant’s Case: Complainant had executed a registered sale deed with an option to repurchase a house property situate in Deeravalli village in favour of one Lanka Samba Shiva Rao. However, the Complainant continued to be in possession and enjoyment of the property. Vendor made attempts to take the possession of the property forcibly in collusion with the police and Complainant filed a suit for injunction against him through his Advocate, i.e., the Respondent at OS No. 87/85. Vendors also filed a counter suit at OS No. 89/85 against the Complainant in the Sub-Court of Gudivada for foreclosure of the mortgage, claiming the above mentioned sale deed as mortgage deed. This was opposed by the Complainant in his Written Statement wherein he claimed that the document is sham and nominal. In the mean while in OS No. 87/85 Court ordered for payment of deficit Court fee under sec. 24 (b) of the Andhra Pradesh Court Fees and Suits Valuation Act. The Complainant alleges that the Respondent was negligent in conducting the case and did not inform the Complainant regarding any progress of the case as a result of which the order of the Court for payment of deficit Court fee could not be complied with. This resulted in rejection of the plaint. Even this was not intimated to the Complainant by the Respondent. The Complainant further alleges that there was no negligence on his part and he regularly kept in touch with the Respondent-Advocate and asked him about the stages of both the suits. However, he did not get true reply from the Respondent. On 23.9.1991 he came to know from some other persons that OS No. 87/85 was dismissed long back, on 15.4.1986, and that OS No. 89/85 was allowed. On verification, the Complainant found the rumours true. On 24.9.1991 the Complainant met Respondent- Advocate and requested him to return the papers of both suits with a “no objection” to engage another Advocate. OS No. 89/85 was posted on 27.9.91 for the examination of PW3. On 25.9.1991, the Respondent-Advocate returned the Complainant’s papers in OS No. 89/85 only, and promised to take adjournment on 27.9.1991. Accordingly, on 27.9.1991 he obtained 1 50 Selected Opinions of the Bar Council of India 2 adjournment of OS No. 89/85 to 4.10.91. However, later the case was again advanced and the evidence of PW3 was recorded. Against his own promise, Respondent-Advocate cross-examined PW3. Respondent’s Case: Respondent-Advocate denied the averments of the complaint and blamed the Complainant for non-payment of Court fee in OS No. 87/89. PROCEEDINGS The D.C. of S.B.C. framed as many as eight issues and heard the parties on 22.6.1995 assisted by their counsels. Both the parties also submitted their written arguments. Respondent’s daughter who had joined the profession recently also filed a mercy application. The D.C. of S.B.C. after going through the records passed a speaking order with the following observations: 1. When the Complainant sought “no objection” to change Advocates, the Respondent should have given his no objection and retire from the case without any hesitation. 2. It is unbecoming of an Advocate to keep his client in darkness about the progress of the case. The Respondent did the same thing in this case. Therefore, he could not make good deficit of Court fee and consequently the plaint in OS No. 87/85 was rejected. The evidence of RW1 and RW2 in respect of the financial capacity of the Complainant is not acceptable. Allegation that OS No. 87/85 was dismissed on 15.4.86 due to negligence of Respondent stands established. 3. Respondent-Advocate has cross-examined PW3 in OS No. 89/95 without the consent and knowledge of the Complainant, especially when Complainant had lost confidence in the Respondent. It is accepted that the Respondent promised to obtain adjournment in OS No. 89/85, but cross-examined PW3 therein in the absence of the Complainant. 4. Respondent has admitted that he refused to file delay condonation application in application for restoration of OS No. 87/85, which is unbecoming of him. 5. Evidence of the Complainant to the effect that Respondent-Advocate did not return the records in OS No. 87/85 to the Complainant is accepted. On the above grounds the D.C. of S.B.C. by its order dated 14.3.1993 debarred the Respondent-Advocate from practice for a period of One year. 3 50 Selected Opinions of the Bar Council of India ORDER D.C. of B.C.I. found no reason to differ with the order and reasons of the D.C. of S.B.C. In the circumstances, the order passed by the S.B.C. was affirmed and the appellant was directed to undergo the punishment imposed by the D.C. of S.B.C. The stay order of the S.B.C. was vacated. 50 Selected Opinions of the Bar Council of India 6 19.9.1991 sent by Respondent to Complainant was never received by the Complainant. He also expressed doubt as to whether an Advocate will reply a registered letter by an ordinary letter, especially when he was returning a D.D. Hence, as there was no proof of having the letter posted, Ex.R1 was only a concocted document. Complainant’s case was supported by an independent witness whose evidence was of great weight and could not be easily brushed aside. After careful consideration of the arguments and evidence of both sides, D.C. of B.C.I. was of the opinion that the Respondent was engaged by the Complainant as his counsel by paying Rs. 5000 towards his fees. In spite of having received the fees, the Respondent did not file the suit. D.C. & B.C.I. did not accept the plea of Respondent that he had sent a letter dated 19.9.1991 to the Complainant and returned the DD for Rs. 400, as there was no proof for that. Hence the Respondent was found guilty of professional misconduct and the D.C. of the B.C.I. found no reason to differ with the finding of S.B.C. ORDER In view of the above reasons the D.C. of the B.C.I. dismissed the appeal and upheld the order of the S.B.C. suspending the Respondent for a period of 6 months from practice. CASE 3 (Validity of Order of S.B.C. Passed after the Statutory Period of One Year) 24(3&4) 1997 IBR193 D.C. Appeal No. 20/1994 A vs. R Shri G.D. Bhatt (Chairman) and Shri J.B. Pardiwala and Shri V.R. Sharma (Members) Judgement Dated 1st June, 1996 FACTS OF THE CASE Complainant’s Case: One Subhash Jain, brother of the Complainant was convicted under sec. 302, I.P.C., and was sentenced to undergo life imprisonment. He applied under sec. 2 of the Madhya Pradesh Prisoners Release on Probation Act, 1954 before the Indore Bench of Madhya Pradesh High Court at M.P. No. 14/92. The same came to be dismissed by the High Court on 8.1.1992. Against this Order of the High Court in M.P. No. 14/92, the Complainant’s brother wanted to prefer SLP and the Complainant engaged the Respondent for the said purpose. Respondent-Advocate demanded Rs. 15,000 towards his professional fees and expenses. Complainant promptly paid the same to the Respondent along with case papers. After some time, the Complainant enquired with the Respondent about the progress in the case. Respondent informed that he had filed S.L.P. and show cause notices had been issued by the Hon’ble S.C. After persistent demand from the Complainant, Respondent sent a copy of S.L.P. and the alleged order of the S.C. The Complainant was suspicious about the genuineness of these documents and on further probe into the matter found that they were all forged documents and no S.L.P. had in fact been filed by the Respondent–Advocate. Hence, the Respondent has committed misconduct by not filing Special Leave Petition in spite of payment of fees as demanded by him. 7 50 Selected Opinions of the Bar Council of India 8 PROCEEDINGS D.C. of S.B.C. framed the following issues: 1. Whether the Respondent-Advocate had been engaged by the Complainant for filing of a S.L.P. before the Supreme Court against the order in MP No. 14/92 dated 8.1.1992, and for this purpose had he paid a sum of Rs. 15,000 to the Respondent-Advocate towards the fees? 2. Whether the alleged copy of the S.L.P. and copy of Supreme Court order was sent by the Respondent to the Complainant? 3. Whether the copy of the S.L.P. order and petition sent by the Respondent- Advocate was not genuine and fake one? 4. Whether on proof of allegation, the Respondent-Advocate is guilty of professional misconduct? After going through the evidence, D.C. of S.B.C. found Respondent guilty of professional misconduct and passed an order dated 2.4.1994 suspending his sanad for a period of 7 years, and also ordered that if the Respondent refunds the amount of Rs. 15,000 with interest at bank rate to the Complainant his sanad would be suspended for 5 years only. In the appeal, Respondent’s case was based on a preliminary contention that the order of the S.B.C. was vitiated as the same was passed beyond the stipulated period of 1 year. In support of this submission, he relied upon a Division Bench decision of Madras High Court reported in 1986(2) MLJ 362. In the opinion of the DC of the BCI, this ground raised by the Respondent was well founded. Though this question was not raised before S.B.C. and also the appeal memo was silent on this point. B.C.I. allowed this question as it went to the root of the matter. The B.C.I. decided the following issue as preliminary issue: Whether the impugned judgement and order dated 2.4.94 of the D.C. & S.B.C. is vitiated on the ground that it is passed beyond the period of limitation of 1 year envisaged under sec. 36B(1) of the Advocates Act, 1961? S.B.C. actually received the complaint on 11.11.1992. S.B.C. referred the complaint to D.C. on 23.1.1993. Notices were issued to the parties by D.C. on 28.2.1993. First date of hearing was fixed on 8.4.1993. The order was passed on 2.4.1994. Sec. 36B(1) provides that proceedings shall be concluded within a period of 1 year from the date of receipt of the complaint or the date of initiation of the complaint at the instance of S.B.C., as the case may be. Hence, in this case the order passed on 2.4.94 is 11 50 Selected Opinions of the Bar Council of India PROCEEDINGS The following issues were framed by the D.C. of the Bar council, after going through the pleadings of the parties. 1. Whether the Respondent took Rs. 4000 from the Complainant? 2. Whether the Respondent did professional misconduct by not rendering the service to the Complainant, if he has paid the alleged amount? 3. Any other professional misconduct? In his evidence, Complainant supported his pleadings. On the question put by the committee in respect of the professional service rendered to him by the Respondent, Complainant stated that he was prepared to pay the reasonable fees as may be decided by the committee. In the cross-examination he stated that in order to pay the fees, he had borrowed Rs. 4,000 from a neighbouring lady, whose name he did not disclose. He also stated that no document was executed for the said loan. In his evidence, Respondent supported his pleadings. In the cross-examination, he denied the suggestion put to him that he has received Rs. 4,000 towards fees and expenses and also denied the suggestion that he had demanded Rs. 11,000 towards fees. The crucial point involved in this case was whether the Complainant has proved his case to the effect that he paid Rs. 4,000 to the Respondent as alleged. In support of his allegations, Complainant did not produce any convincing evidence. In his cross- examination he gave evasive answers of having received the money from his neighbour and reused to adduce her evidence. As even refused to disclose her name. To the question put by the committee he agreed to pay reasonable fee for the professional service rendered to him by the Respondent. If he had already paid Rs. 4000 to the Respondent as alleged by him, he would have requested the committee to order refund of Rs. 4000 after deducting the reasonable fee. It is not uncommon practice when a senior colleague sends a case to another colleague with a request to help the client, normally the Advocate obliges. In this case also, the D.C. of B.C.I. felt that the Respondent might have drafted complaint and issued notice without charging any fees. The D.C. of the B.C.I. felt that it was not unjustified on the part of Respondent to demand receipt from the complaint for having received the document. Therefore, the Complainant failed to prove his case against the Respondent for professional misconduct. ORDER As such the complaint was dismissed. The parties were left to bear their own costs. CASE 5 (Negligence in Conducting Case and Misleading Client) 23(1) 1996 IBR 155 B.C.I. Tr. Case No. 104/1990 C vs R Shri Jagannath Patnaik (Chairman) and Shri Ashok Deb and Shri S.K. Padhi (Members) Judgement Dated 19th November, 1995 FACTS OF THE CASE Complainant’s Case: The Complainant had filed a suit in respect of an immovable property and had appointed the Respondent-Advocate to represent him in the said case. The Complainant visited the Respondent on different dates to ask about the progress of the case. He was informed that the case was pending in the Court of the Rent Controller. After a considerable time, the Complainant discovered that the case had been dismissed for default long back. The Complainant’s efforts to restore the case through another Advocate did not yield any results and he was constrained to file a fresh case. Respondent’s Case: Respondent admitted that he had represented the Complainant in the said case, but could not give any reason for the dismissal of the case for default, and also for making the false representations to the Complainant that the case was pending. PROCEEDINGS Therefore, the B.C.I. had no hesitation in holding that the Respondent had committed professional misconduct as it is well settled that gross negligence on the part of an Advocate which leads to the suffering and harassment of the client will amount to misconduct, and that it was exactly what had happened in this case. The Respondent-Advocate had neither expressed remorse nor tendered apology in his defence. On the contrary, he had unnecessarily tried to put blame upon the Complainant himself. It was also brought to the notice of the D.C. of B.C.I. that the Respondent-Advocate had committed similar misconduct in the past and had been punished with suspension for a period of 1 month. That order was confirmed by the Supreme Court of India. ORDER In view of all these circumstances, the D.C. of B.C.I. found it proper to suspend the Respondent-Advocate from practice for a period of six months. 12 CASE 6 (Negligence in Conducting Case and Threatening Client) 21(1) 1994 IBR 187 B.C.I. Tr. Case No. 52/1989 Kapil Dev Singh vs. Prem Nath Shri V.C. Sharma (Chairman) and Shri B.N. Sharma and Shri Sarvesh Sharam (Members) Judgement Dated 20th May, 1990 FACTS OF THE CASE Complainant’s Case: Complainant was a party in two cases. He wanted to file two Writ Petitions against some orders in those two cases. He engaged the Respondent-Advocate as his counsel for filing these Writ Petitions, and paid him Rs. 2000. Complainant also handed over the necessary case papers to the Respondent along with several signed plain papers. Respondent assured the Complainant that he would file the Writ Petitions before the Lucknow Bench of the High Court. After a few days, when the Complainant met the Respondent, Respondent told him that he had already got the Writ Petitions filed through a High Court Advocate. However, he could not tell the name of the High Court Advocate. Becoming suspicious about the whole incident, the Complainant made enquiries and found that the Writ Petitions were not filed. Therefore, he met the Respondent and asked him to refund the money and also to return the papers. Realising the trouble, the Respondent threatened and insulted the Complainant. Thereby, he has committed misconduct. Respondent’s Case: Respondent in his defence denied all the contentions of the Complainant. He denied that the Complainant engaged him as Advocate and that he had accepted the vakalatnama. But he did not deny the payment of Rs. 2,000 or the delivery of papers to him. He contended that the relation between the parties was strained, and out of animosity, the Complainant had filed this false complaint. The B.C.I. was surprised to see that the defence was not verified as required under the provisions of CPC, and therefore, it did not find the defence admissible. The Respondent also did not care to file any affidavit in support of his defence. Therefore, all his contentions were ignored by the B.C.I. 13 50 Selected Opinions of the Bar Council of India 16 Complainant’s Case: The Respondent is a Solicitor Firm practising in Delhi. Complainant Bank and its branches used to entrust most of their cases to the Respondent Firm. Jungpura Branch of the Complainant Bank entrusted a case to the Respondent firm against a borrower for breach of financial discipline. The Respondent advised the Bank to file a criminal complaint and also a civil suit for recovery of money against the said borrower. According to the Bank, it lodged a Police complaint and filed a civil suit through the Respondent Firm. The Bank entrusted the valuable original loan documents to the firm along with fees and expenses. After few days, the Bank enquired with the Respondent Firm about the name of the Court in which the suit had been filed and the next date of hearing. But no reply was received by it from the Respondent Firm. Therefore, it became suspicious that the firm was withholding vital information regarding the case. It instructed the Respondent Firm to retire from the case and appointed another Firm to look into the matter. The Bank was informed by the new Firm that though the suit had been filed by the Respondent firm, the plaint was returned to it by the Court office for rectifying certain defects in plaint. But the plaint was not represented. In the meanwhile, the Law Department of the Complainant Bank came across a case reported in AIR 1978 SC 335. In that case, strictures were passed by the Supreme Court against a senior member of the Respondent Firm for a similar conduct in the case reported therein. Therefore, the Complainant bank believes that the Respondent Firm had misappropriated the money given to it towards fees and expenses and had failed to account for the same. The original papers which formed the basis of Complainant Bank’s claim against the borrower have also been either secreted, destroyed or misappropriated and converted to their own unlawful benefits by the Respondent Firm. Therefore, the partners of the Respondent Firm were guilty of professional misconduct. Respondent’s Case: Only one of the partners appeared and filed his defence. He denied all the allegations. He contended that the Firm had filed the suit and that the allegation in the complaint to the effect that the same was returned by the Court for rectification of defects was false. Hence, he contended that there was no occasion for all holding the Firm liable for misconduct. He further contended that the Complainant had signed vakalatnama only in the name of the senior member of the Firm and not in his name or in the name of any other member of the firm. Therefore, even if the allegations in the complaint were true, he is not liable because for the misconduct of one partner another partner is not held liable unless they abetted or they are accessories to the misconduct directly. He contended that there is no vicarious liability. He also raised the preliminary objection as to the maintainability of the proceedings. 17 50 Selected Opinions of the Bar Council of India PROCEEDINGS On the basis of the pleadings the following issues were framed: 1. Is the case maintainable? 2. Whether the plaint was returned to the Respondent as alleged? 3. Whether the Respondent wrongfully withheld documents? The Respondent argued before the Bar of Council of India that the reference of the complaint by the S.B.C. to its D.C. was mechanical one and the S.B.C. had not applied its mind to the case before referring it. In its reference the S.B.C. did not mention that the S.B.C. had considered the complaint and that it had found that there is a prima facie case. He relied up on the decision of a Supreme Court reported in AIR 19881 SC 477 in support of his argument. On the perusal of the original records B.C.I. found that the S.B.C. had issued notice to the Respondent and only after hearing the parties the case was referred to its D.C. Hence the requirement of law of “reason to believe” was fulfilled. The B.C.I. also felt that the decision sighted above is not applicable to the instant case. Hence, the objection was rejected. On the question as to whether the plaint was returned as alleged, the Complainant produced a letter written by Respondent Firm to the Complainant. The letter did not bear the signatures of any of the partners of the Firm, and therefore, was objected by the Respondent for marking. Complainant stated in his evidence that the plaint was returned because court fee had not been paid. This was rejected as untrue because if the court fee is not paid or if it is in the deficit, the plaint is not returned, but time is given for the payment of deficit court fee. Therefore, the Complainant was held to have failed in establishing that the plaint had been returned. However, the Complainant Bank successfully established that it had handed over the valuable original loan documents to the senior partner of the Respondent Firm. Hence, the D.C. of B.C.I. held the senior partner of the firm guilty of committing misconduct by withholding the valuable documents of the Bank. The D.C. of B.C.I. held that the other partners cannot be vicariously liable for the misconduct of the senior partner, and they were exonerated of all charges levelled against them. ORDER Therefore the senior partner of the firm was found guilty of serious professional misconduct and was suspended from practice for a period of 5 years. He was also made liable to pay a cost of Rs. 5,000 to the Complainant Bank. Other partners of the Respondent Firm were exonerated of all charges levelled against them. CASE 8 (Latches and Negligence in Conducting the Case) 16(3&4) 1989 IBR 536 D.C. Appeal No. 35/1987 N.M. vs. V.D. Shri L.N.K. Singh (Chairman) and Shri Saradindu Biswas and Shri B.R. Ghosal (Members) Judgement Dated 27th May, 1989 FACTS OF THE CASE Complainant’s Case: Complainant had engaged Respondent-Advocate to represent him in a civil suit. In that case, Complainant had filed 11 documents. Subsequently the Respondent started pressing the Complainant to enter into compromise. This made the Complainant suspicious. Therefore, he engaged another Advocate along with the Respondent. This Advocate discovered that two very important documents which were produced in the case were missing from the records. Further inquiry revealed that they were taken out by the Respondent and he had signed the List of Documents to that effect, but had no put date in order to mislead the Complainant. Without the knowledge of these events, the Complainant had led his evidence and he was put to embarrassment as he could not mark these documents. Thus the Respondent has caused unnecessary expenditure and difficulties to the Complainant due to his latches and negligence. Respondent’s Case: Respondent denied the case of the Complainant in toto. He denied having put pressure upon the Complainant for entering into compromise in the said civil suit. He also denied that another Advocate came to be appointed out of suspicion about his conduct. He contended that the two documents named in the complaint were taken by him and he had signed the list of documents. But the Respondent explained this contention in a different way in his evidence. He told that the suit was decreed ex parte after recording ex parte evidence of the Complainant. The Complainant had got all material documents marked during his examination-in-chief. As the suit was decreed, the Respondent returned the brief to the Complainant. Subsequently the defendants in the suit applied for setting aside the ex parte decree. Therefore the Respondent requested the Complainant to return the papers, but they were never returned to him. Another Advocate was appointed by the Complainant to represent him. Since then, the Respondent was not in picture. Thus, even if the two papers were removed by the Respondent, it has not caused any inconvenience or loss to the Complainant. 18 CASE 9 (Negligence in Conducting Case) 14(3) 1987 IBR 488 D.C. Appeal No. 40/1986 G vs. M Shri M.L. Garg (Chairman) and Shri R.S. Mahendra and Shri N.N. Mathur (Members) Judgement Dated 27th April, 1987 FACTS OF THE CASE Complainant’s Case: Complainant obtained a temporary injunction against her husband restraining him from contracting a second marriage. Subsequently the suit was dismissed for non-prosecution. Taking this opportunity, her husband remarried on 2.5.1985. Thus, due to the negligence of the Respondent in conducting the case, the Complainant is put to great loss. Respondent’s Case: Respondent honestly admitted that he did not appear in the case on the said date and hence the suit was dismissed. He had to attend the marriage of a relative on the said date and had requested one of his colleagues to represent in that case. Before the Respondent could move an application for restoration, the Complainant withdrew the brief from him. PROCEEDINGS Neither party led and produced any evidence. The case was decided by the D.C. of the S.B.C. on the strength of the pleadings alone. It found that there was no negligence on the part of the Respondent in the non-prosecution of the case, but he was negligent in not filing the restoration application. As such he was held guilty of misconduct and was reprimanded. In the appeal, the Respondent produced a certified copy of an application filed by the Complainant in the Court of District and Sessions Judge expressing apprehension that her husband may remarry. The application was filed in July 1985. This showed that the Complainant’s and averment that her husband had remarried on 2.5.1985 was false. The Complainant did not appear before the D.C. of the B.C.I. to explain the discrepancy. Thus, the Complainant’s version that the negligence on the part of the Respondent gave an opportunity to her husband to remarry was rejected by the D.C. of the B.C.I. 21 50 Selected Opinions of the Bar Council of India 22 Further, there was no reason for the D.C. of the B.C.I. to disbelieve the Respondent’s version that he was not given any opportunity by the Complainant to file a restoration application, especially when the same had gone unchallenged by the Complainant. Therefore, the view of the D.C. of the S.B.C. that the Respondent was negligent in not filing the restoration application was held to be not correct. ORDER Therefore, the appeal was allowed and their order and judgement of the D.C. of the S.B.C. was reversed setting aside the conviction and sentence. The Respondent was exonerated of all the charges levelled against him. CASE 10 (Negligence in Conducting the Case, Inordinate Delay in Filing the Complaint) 14(4) 1987 IBR 735 D.C. Appeal No. 7/1981 C vs. P Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members) Judgement Dated 20th March, 1987 FACTS OF THE CASE Complainant’s Case: Complainant and his wife wanted to purchase flat and they entered into an agreement for the purchase of a flat with an estate agent, and also paid him some advance money. But the estate agent tried to dupe them. In order to take legal recourse the Complainant approached the Respondent-Advocate. Complainant paid Rs. 3,000 to the Respondent towards his fees and expenses and obtained a receipt. But the Respondent-Advocate did not take any action. In the meanwhile, the Complainant could recover almost the entire amount from the estate agent with the help of the Police. Therefore, he did not feel it necessary to file suit against the estate agent and therefore, demanded the money back from the Advocate by writing him a letter. But he did not get any reply from the Advocate. Therefore, he filed a complaint against him for the misconduct. Respondent’s Case: Respondent admitted almost all the facts. But he contended that at the time of filing the police complaint itself the Complainant had taken back all the papers as well as the draft plaint prepared by the Respondent. Respondent had drafted the police complaint and it was agreed that the Respondent should adjust Rs. 500 towards expenses for effecting the compromise through police and Rs. 1,500 were his fees. Respondent had returned Rs. 1,000 to the Complainant in cash. He claimed that he had also received a receipt from the Complainant but it was missing. He expressed suspicion that it might have gone back to the Complainant along with the case papers. He also contended that the Complainant has filed the complaint only after six years. If he were really aggrieved, he would not have waited for six years. PROCEEDINGS The D.C. of the S.B.C., after going through the evidence, was of the opinion that the Respondent had not returned the money to the Complainant and therefore, he was held guilty of misconduct and was suspended from practice for a period of three years. 23 50 Selected Opinions of the Bar Council of India 26 causing wrongful loss to another person. The records revealed that the GPA was not used to the prejudice of the lady in whose place the wrong woman was identified. The said lady had applied for the cancellation of the GPA on the ground that a wrong lady was identified in her place, and also for an action against the deed writer. The GPA-holder admitted in his evidence that the Respondent had represented the accused in a criminal complaint filed by the Complainant herein. Other serious allegations made in the complaint were not pressed evidently for the lack of evidence. In view of all these circumstances, the D.C. of the B.C.I. felt that the reason given by the Respondent that he had identified a wrong lady at the instance of the deed writer was acceptable. The Disciplinary Proceedings being quasi criminal in nature, the Complainant has to prove mens rea beyond reasonable doubt. In this case, Complainant had failed to prove mens rea beyond reasonable doubt. ORDER Hence, the appeal was allowed and the punishment awarded to the Respondent by the D.C. of S.B.C. was set aside. The D.C. of B.C.I. relied upon decisions reported in 1995 Chandigarh LR 167 and AIR 1940 All. 289. CASE 12 (Negligence Not Amounting to Misconduct) 16(2) 1989 IBR 273 D.C. Appeal No. 24/1987 R.M. vs. A.R. and P.M. Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members) Judgement Dated 2nd September 1988 FACTS OF THE CASE Complainant’s Case: Complainant entrusted to the Respondent certain files and records for a filing of two cases. These cases were to be filed against the Stock Exchange and a company for not delivering shares to him as per the agreement. These two files contained very important records. One of them was a letter from the company admitting liability to pay Rs. 51,900 to the Complainant. Respondent No. 1 advised the company that there is no use in filing the legal proceedings against the company and that it is better to settle the matter out of the Court through Respondent No. 2. But the efforts for settling the case out of Court were not fruitful and Complainant sought for the return of papers. In the mean time, Respondent No. 2 left Madras and settled at Salem. Respondent No. 1 gave a letter to the Complainant addressing the Respondent No. 2 for return of those files. Complainant met Respondent No. 2 at Salem, but could recover only one file. Even though persistent efforts were made, the Complainant could not recover the files from the Respondents. The file contained material documents on which the Complainant’s claim against the company was based. As such, the Respondents have committed the professional misconduct by not returning the papers. Respondent No. 1’s Case: Respondent No. 1 admitted that he was approached by the Complainant with the said case. But he contended that he was not well versed in subject and therefore, he referred the case to Respondent No. 2, and thereafter Respondent No. 2 took all the responsibilities of the case. Hence, he has nothing to do with the alleged misconduct. Respondent No. 2’s Case: Respondent No. 2 admitted that the case was referred to him by Respondent No. 1 and also that the two files were entrusted to him by the Complainant. He also admitted that he had advised for settlement of the matter out of Court and that the settlement could not be materialised. In the meanwhile, due to old 27 50 Selected Opinions of the Bar Council of India 28 age and certain other problems he had to leave Madras once for all and settle at Salem. Thereafter the Complainant approached him and sought for return of the files. He returned the first file, but could not trace the second. He searched his office thoroughly and also got the office of the Respondent No. 1 searched thoroughly. Respondent No. 2 categorically stated that Respondent No. 1 was in no way involved in the case but for the fact that the case came to Respondent No. 2 through Respondent No. 1. He stated that allegations made against Respondent No. 1 were absolutely incorrect. Respond No. 2 also stated that he did not conceal any file, and at the age of 70 years he had no necessity for doing so. First file contained all the material documents and the second file did not contain any material documents. All material documents on which the claim of the Complainant was based were returned to him and hence there is no case of misconduct against him also. PROCEEDINGS Complainant examined himself as his witness and his examination-in-chief was recorded. The case was posted for his cross-examination. But he did not present himself for cross-examination. The Complainant was absent before the S.B.C. on many occasions earlier also. Keeping in view the nature of allegations made by the Complainant against the Respondents and his conduct before the D.C. of the S.B.C., the S.B.C. dismissed the case for default. The Complainant could have filed an application before the S.B.C. itself for restoration of the complaint. But he chose to prefer appeal against the order of the S.B.C. But he was not present before the Bar of Council of India also in spite of the notice served upon him. He submitted through a letter that he knew only Tamil and could not argue either in the English or in Hindi. Therefore, he requested the D.C. of the B.C.I. to decide the case on the merits from the records only. The inquiry was held at Madras. Even then, the Complainant remained absent. The Respondents were present both before the S.B.C. and before the B.C.I. throughout the proceedings. The B.C.I. looked into the pleadings and material documents present it in the case by the parties. In his appeal memo, the Complainant had made several allegations against the Chairman and the Members of the D.C. of the S.B.C. and had contended that it was a waste of time to be present before them as they were favouring the Respondents. He did not have any hope of getting justice from them. B.C.I. took these allegations seriously, and observed that the Complainant had no business to say any such thing against the Chairman or the Members of the D.C. of S.B.C. without cogent evidence in support of such allegations. However, the B.C.I. also observed that D.C. of S.B.C. had not given the Complainant sufficient opportunity for cross-examination. One of the letters produced by the Complainant was addressed to Respondent No. 1, which stated that Respondent No. 2 was supporting the company, and blackmailing the Complainant. Hence, he should make all efforts to get the papers back from Respondent 31 50 Selected Opinions of the Bar Council of India PROCEEDINGS After going through the evidence on record, the S.B.C. was of the opinion that the Respondent had not produced any evidence to show that he had replied the letters of the Complainant. The Respondent had stated that usually such letters are replied in the routine course by the clerk. However he also stated that he remembered to have replied the letter of the Complainant personally. But he had not sent it through registered post. But for the self-serving statement of the Respondent there was no other evidence on record to show that the letter was supplied by the Respondent. Therefore the D.C. of the S.B.C. found him guilty of misconduct. As far as filing of case is concerned, the Respondent had stated that he had filed the case but the same was returned to him for the want of particulars. He had contacted the Complainant and also his friend for those particulars for no avail. Complainant said that he had inquired with the police station for those details and was informed that the Respondent had already collected those details from the Police Station. S.B.C. did not accept this statement of the Complainant, because an Advocate could not have collected those documents. Therefore the say of the Complainant that he did not reply to letters written by the Respondent because the details were already collected by the Respondent was rejected by the D.C. of the S.B.C. This view of the S.B.C. was upheld by the B.C.I. Now the only question before of the B.C.I. was whether the non-reply of the Complainant’s letter by the Respondent amounted to negligence amounting to professional misconduct. It was clear from the records that no substantial injury or inconvenience was caused to the Complainant by the act of the Respondent. Therefore, though the Respondent’s act amounted to negligence, it did not amount to professional or other misconduct. In support of its order, the B.C.I. relied upon the decision of the Supreme Court reported in AIR 1984 SC 110, and the decision of Madras High Court reported in AIR 1926 Madras 568. ORDER In view of the above circumstances, the D.C. of the B.C.I. was pleased to interfere with the order passed by the D.C. of S.B.C. finding the Respondent guilty of professional misconduct and the impugned order was set aside. In the result, the appeal was allowed. CASE 14 (Withholding Documents) 14(3) 1987 IBR 491 D.C. Appeal No. 10/1986 D.C. Appeal No. 10A/1986 R vs. L.J. L.J. vs. R Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members) Judgement Dated 4th August, 1987 FACTS OF THE CASE Complainant’s Case: Complainant had entrusted a Promissory Note to the Respondent to issue a notice to the debtor, and had paid the fees therefor. The notice came to be issued and subsequently the Complainant demanded the notice back so that he could file a suit through some other Advocate. But the Respondent-Advocate refused and demanded exorbitant fee through a notice. This was replied by the Complainant stating that he was not liable to pay fees as demanded by the Respondent and again reiterated his demand for the return of the Promissory Note. The Respondent did not take any step to return the Promissory Note and the suit became time barred causing loss to the Complainant to the tune of Rs.11,000. Respondent’s Case: Respondent admitted the receipt of the Promissory Note. He also admitted the demand of fees but justified his claim. As the fee was not paid he had exercised his right of lien. The Complainant and the Respondent resided in the same flat and there were some disputes between their families in respect of sharing of tap water, etc. Therefore, this complaint was filed to take revenge. PROCEEDINGS From the records and also from the admission of the Respondent it was clear that the Complainant had entrusted him the Promissory Note. It was also clear that after the notice was issued by the Respondent, the Complainant demanded the Promissory Note back and also gave a notice that if the Respondent failed to return the Promissory Note, he would file a complaint before the S.B.C. But the Respondent did not care to reply the notice, let alone to return the Promissory Note. The question before the D.C. of the S.B.C. was whether the Respondent had the right to withhold the document. Normally no Advocate issues any notice without collecting the charges. Therefore, the Respondent’s demand for fees after a period of one year was found to be unusual. Respondent justified his claim for exorbitant fees on the ground that he had prepared plaint. But the Complainant said that he had not given any instructions for preparing the plaint. Further, the Respondent did not produce the draft 32 33 50 Selected Opinions of the Bar Council of India plaint. Therefore, the Advocate had no right to withhold the document and as such he was held guilty of misconduct. The D.C. of the S.B.C. punished the Respondent by suspending him for a period of 1 month without costs. In appeal there were two questions before the D.C. of the B.C.I.: 1. Whether the failure on the part of the Respondent to return the documents to the Complainant amounted to misconduct? 2. If so, is the punishment awarded by the lower D.C. sufficient? ORDER The D.C. of the B.C.I. agreed with the decision of the D.C. of the S.B.C. on the first issue, but modified the order of the D.C. of the S.B.C. by adding costs of Rs. 1,000. The D.C. of the B.C.I. did not interfere to modify the order of suspension by enhancing it as the Complainant had already initiated civil proceedings to recover the damages for the loss caused him. CASE 16 (Misappropriation of Client’s Money) 24(1&2) 1997 IBR 271 D.C. Appeal No. 13/1991 A vs. R Shri D.V. Patil (Chairman) and Shri S.C. Chawla and Shri S.G. Nair (Members) Judgement Dated 14th September, 1996 FACTS OF THE CASE Complainant’s Case: Complainant’s husband was the owner of some houses in Singavaram Village, Alampur (W), Mahaboobnagar Dist. Those houses were submerged in Srisailam Project and a compensation of Rs. 2,80,533.40 came to be deposited by the Govt. in the Sub-Court, Gadwal. Respondent-Advocate represented the Complainant’s husband in that case. Complainant used to accompany her husband whenever he went to visit the Respondent. Later on her husband was missing and an advertisement was issued in Newspaper by her brother-in-law. In the mean while the compensation amount was deposited by the Court in Complainant’s husband’s account in Canara Bank, Mahaboobnagar Branch. Complainant requested the Respondent to help her to withdraw the amount from the bank, to which the Respondent agreed. Thus, he has the knowledge that Complainant’s husband was missing. Respondent avoided helping the Complainant on one pretext or the other. Subsequently, Complainant came to know that the compensation amount was withdrawn by her husband. In fact it was withdrawn by the Respondent by forgery. She claimed the money from the Respondent but he refused. She sent him a legal notice which returned unserved. Later on Respondent returned Rs. 2 lakhs to the Complainant and she claimed the remaining amount of Rs. 80,533.40 with interest. But the same is not returned to her. Respondent’s Case: Respondent denied entire case of the Complainant. He denied that he knew the Complainant to be the wife of his client. His client was illiterate and hence his account was opened in Canara Bank, Mahaboobnagar with his photograph. He pleaded ignorance about the whereabouts of his client. He denied that he had forged the cheque to withdraw the amount. He also contended that he had come to know that Complainant was not living with her husband for quite some time. 36 37 50 Selected Opinions of the Bar Council of India PROCEEDINGS Complainant did not appear before the D.C. of S.B.C. in spite of several notices. She also did not produce any evidence. The D.C. of S.B.C. proceeded to consider the matter on the basis of its own comparison of thumb impressions on the original petition in the case filed by him and on the affidavit which dated later to the date from which the client was missing. Hence it became suspicious of the genuineness of the thumb impression and suggested that it was necessary to hand over the matter for the further investigation to the Magistrate or the Police Officer. B.C.I. was unable to agree with the reasoning given by the S.B.C. in the absence of any substantive evidence on record. Only an advertisement was issued in the newspaper in respect of missing of the Complainant’s husband. That was not sufficient for the B.C.I. to reach a conclusion that he was really missing. Neither the script of the advertisement was produced before the D.C. nor was the evidence of the person who issued it was recorded. B.C.I. felt it dangerous to make cuttings of newspaper basis of decisions dealing with the lives of professionals. Hence it was held that the D.C. of the S.B.C. had erred in depending its decision on such uncreditworthy evidence. B.C.I. also felt that the inference of S.B.C. that the thumb impressions of Complainant’s husband on the affidavit were not genuine on its own comparison of the thumb impressions was uncalled for. Hence the conclusion that the withdrawal of amount was under suspicious circumstances also went unsupported by the evidence. B.C.I. expressed its surprise over the observation of S.B.C. that the Complainant’s appearance before it was withheld by the Respondent in the absence of any creditworthy evidence. B.C.I. also observed procedural flaws in the proceedings of S.B.C. S.B.C. had not framed any issues or charges in the case. In normal course the B.C.I. would have framed the issues itself and proceeded with the case. But in view of total lack of evidence in this case B.C.I. considered it a futile exercise and decided to set aside the order of S.B.C. without any further procedure. ORDER The Respondent-Advocate was found not guilty. The appeal was allowed and the order dated 13.7.1991 passed by the D.C. of Andhra Pradesh S.B.C. in CC No. 21/90 removing the name of the Respondent from the Roll of Advocates was set aside. CASE 17 (Breach of Trust) 23(1) 1996 IBR 135 D.C. Appeal No. 24/1990 A vs. R Shri D.V. Patil (Chairman) and Shri R.S. Chahar and Shri Khazan Singh (Members) Judgement Dated 4th June, 1993 FACTS OF THE CASE Complainant’s Case: Complainant was a General Power of Attorney-holder of his mother-in-law, one Mrs. Mary Raymond, during her life time, and her L.R. after her death. Respondent was the Advocate of the said lady and he had prepared her will. The will was in the custody of the Respondent. The Respondent had passed a receipt to that effect. Subsequently Mrs. Raymond changed her Advocate and the new Advocate requested the Respondent to hand over the will to him. Respondent refused to hand over the will. Therefore Mrs. Raymond got a new will prepared by the new Advocate. Even thereafter, the Complainant made several requests to the Respondent to hand over the will to him, but all his efforts were fruitless. Thus, the act of the Respondent was mischievous, and had Mrs. Raymond died intestate, it would have resulted in serious damage to her. PROCEEDINGS D.C. of Karnataka S.B.C. rejected the complaint holding that there was no prima facie case. This order was set aside by the B.C.I. and hearing was ordered. Both parties were heard by the D.C. of Karnataka S.B.C. and the complaint was dismissed holding that the will had become res nullius and the Respondent was not liable to return it. D.C. of S.B.C. gave special emphasis on the fact that there was considerable delay in filing the complaint. It also observed that the complaint arises out of animosity between parties. In any case, it was held that the Complainant nowhere alleged the misuse of the will by the Respondent, and he could not prove that its non return caused any loss or damage to the Complainant or Mrs. Raymond. D.C. of B.C.I. differed on all these views expressed by the D.C. of Karnataka S.B.C. The said will was the property of Mrs. Raymond and she was entitled to recover the same from the Respondent during her life time. After her death the Complainant who was her 38 41 50 Selected Opinions of the Bar Council of India The parties lead oral evidence and also produced certain documents. The most important of these documents was a copy of R.C.O.P. for deposit of rent on behalf of the Complainant. D.C. of the S.B.C., after going through the oral and documentary evidence carefully came to the conclusion that Complainant had not proved the charge of professional misconduct by the Respondent and therefore, dismissed the complaint. The D.C. of the B.C.I. upheld the order of the D.C. of the S.B.C. Neither the Complainant nor his witnesses had come forward with a clear-cut case of misappropriation of funds. Apart from the oral evidence, there was no substantial evidence on record to show that the monies were entrusted to the Respondent-Advocate. The R.C.O.P. was produced by the Complainant to show that the amount was entrusted to the Respondent. But there was no other evidence to show what order came to be passed on The R.C.O.P. Whether any amount was deposited or whether the petition was dismissed for the want of deposit is not known. The Complainant said that he has taken certain amounts to the Respondent towards fees, expenses, etc. without producing any evidence for the payment of the said amount. Complainant further contended that he had paid the Rs. 4,000 to the Respondent to procure an electricity generator on hire purchase through bank, as the landlord had disconnected electricity to the premises. He did not produce any voucher for the same. Further it was not necessary for him to approach the Respondent-Advocate for the purchase of generator on hire purchase through a bank. He could have done it on his own. He did not even produce any application or recommendation. On all these counts, the D.C. of both S.B.C. as well as the B.C.I. formed the opinion that the evidence produced by the Complainant was not sufficient to establish the severe charges levelled against the Respondent-Advocate. ORDER Hence the Complainant’s case was dismissed. CASE 19 (Misappropriation of Client’s Money) 15(3&4) 1988 IBR 359 D.C. Appeal No. 21/1985 G. vs. T. Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members) Judgement Dated 9th July, 1988 FACTS OF THE CASE Complainant’s Case: Complainant and other co-sharers in a land acquired by the government were awarded compensation in some land acquisition matters. The Respondent-Advocate was authorised to receive the compensation money from the Collector after complying with the necessary legal formalities. Accordingly the Respondent-Advocate received compensation money, but he did not pay the same to the Complainant in spite of several requests. Respondent’s Case: Respondent denied that he had received money from the Collector on behalf of the Complainant. But during the proceedings before a the D.C. of S.B.C. he asserted that he had received the cheque on behalf of the Complainant and after encashing it he had handed over the cash to his registered clerk for delivering it to the Complainant. He prayed for summoning the clerk. The clerk denied that the signature on the receipt was his signature and maintained that it was the signature of the Complainant. PROCEEDINGS The Respondent at first denied that he had received a money on behalf of the Complainant. Then he said that he had received the cheque and after encashing it he had sent the money to the Complainant through his clerk. The receipt produced by the Respondent disclosed that the money paid to the Complainant under that receipt was in respect of some other matters. It was not in respect of the Land Acquisition Matters mentioned in the complaint. Therefore the receipt did not help the Respondent in the present case. The Respondent had admitted that he had received money on behalf of the Complainant, but he failed to prove that he had paid the money to the Complainant. 42 43 50 Selected Opinions of the Bar Council of India ORDER Therefore DC of the SBC held that the Respondent was guilty of professional misconduct by misappropriating client’s money. In the result, his name was removed from the Roll of Advocates. This order was confirmed by the DC of the BCI. DC of the BCI further awarded costs of Rs. 500 to the Complainant. 50 Selected Opinions of the Bar Council of India 46 In the opinion of the B.C.I. he had committed misconduct by not proving worthy of the profession and abusing the trust reposed in him by his client. He had misappropriated client’s money and had allowed the cheque to be dishonoured. The Respondent admitted that he had given the money to his clerk for the purchase of stamps but the client had disappeared with the money and Advocate had filed a police complaint in respect of the matter. ORDER The B.C.I. was of the opinion that the removal of the name of the Respondent from the state Roll was too harsh. Therefore it was reduced to reprimand. CASE 22 (Misappropriation of Client’s Money) 14(2) 1987 IBR 319 D.C. Appeal No. 38/1984 M vs. R Shri V. Rajayyah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members) Judgement Dated 9th February, 1987 FACTS OF THE CASE Complainant’s Case: Complainant had engaged the Respondent in the eviction petition in an H.R.C. case. The Respondent won the case for the Complainant and the tenant preferred revision petition before the District Judge, Mysore. In that revision case, the tenant deposited arrears of rent in the Court. The amount was withdrawn by the Respondent-Advocate, but was not paid to the Complainant in spite of several letters and reminders. Thus, he had committed misconduct by misappropriation of money. Respondent’s Case: Respondent admitted the withdrawal of money but he claimed that the amount was slightly less than what was stated in the complaint. It contended that he had paid the entire amount to the Complainant and had taken vouchers from him. He alleged that the Complainant had not paid him any fee. PROCEEDINGS The D.C. of B.C.I. had two questions before it. 1. Whether the Respondent had paid money to the Complainant and obtained the receipt as averred by him? 2. If not, was the punishment given by the D.C. of the S.B.C. adequate or should it be enhanced? Both the D.C.s went through the records carefully and found from the records and also from the admission of the Respondent that he had withdrawn the money as stated in the complaint. Records also clearly indicated that the act of withdrawal of money was fraudulently concealed from the Complainant, but when the case was filed the Respondent came out with a new theory that he had paid the entire amount to the Complainant. However the receipt produced by him was dated 3.9.1988 to whereas, he had withdrawn the money on 4.9.1988. Therefore, the D.C.s did not choose to believe 47 50 Selected Opinions of the Bar Council of India 48 the version of the Respondent. A cursory perusal of the receipt indicated that it is not a genuine receipt. Respondent had also alleged that the complainant had not paid him his fee. In such an event, the Respondent would have deducted the fee from the money. He would not have paid the entire amount. Thus, the version of the Respondent was totally rejected by the D.C. and he was found guilty of misconduct by misappropriation of client’s money and also by his conduct he had brought down the dignity of the profession. ORDER The D.C. of the S.B.C. recorded conviction and sentenced the Respondent with suspension for a period of one year. The D.C. of the B.C.I. felt the punishment inadequate and ordered the removal of the name of the Respondent from the State Roll. 51 50 Selected Opinions of the Bar Council of India Therefore the D.C. of B.C.I. found the Respondent guilty of forgery and misappropriation and therefore of professional misconduct. The nature of the misconduct committed by him was very grave. Such a person is unfit to be in the legal profession. ORDER Therefore D.C. of B.C.I. was pleased to uphold the sentence of the D.C. of the S.B.C. removing the name of the Respondent from the Roll of the S.B.C. CASE 24 (Cheating the Client) 19(3&4) 1992 IBR 125 B.C.I. Tr. Case No. 127/1988 C vs. A Shri K.J. Shethna (Chairman) and Shri B.N. Sharma and Shri Ajay Kumar (Members) Judgement Dated 30th June 1990 FACTS OF THE CASE Complainant’s Case: Respondent was running a Solicitor’s Firm. He was hand in glove with an impostor who represented himself to the public as a financier. Complainant approached that impostor for a loan of Rs. 7,00,000. The impostor took him to the Respondent. Respondent represented that he was a reputed Advocate, and therefore, worked only for genuine Financial Institutions. He told that the parties have to pay him 3.5% of the loan amount as fees and 2% towards stamp duty that would be required at the time of disbursing the loan. Thus, he demanded, in all, 5.5% of the loan amount in cash. He said that payment in cash will speed up the procedure and the disbursement could be made early. Therefore, the Complainant paid Rs. 38,500 to the Respondent, which is 5.5% of Rs 7,00,000. Later on, the Respondent-Advocate told the Complainant that as the responsibilities were too heavy, he would proceed with his legal work only if the Complainant paid him Rs. 10,000 towards his fees. Complainant reluctantly paid the amount as demanded by the Respondent. But instead of disbursing loan to the Complainant, the financier initiated a false police case against the Complainant himself. Complainant approached the Commissioner of Police, and with his help, the financier was booked to law. But the police advised the Complainant to proceed against the Respondent through the S.B.C. This is not the only such case against the Respondent. The Respondent has committed many such frauds. PROCEEDINGS The following issues were framed by the D.C.: 1. Whether the Respondent-Advocate is engaged in a finance racket to induce and deceive innocent loan seekers? 52 53 50 Selected Opinions of the Bar Council of India 2. Whether the Respondent-Advocate has defrauded the Complainant? 3. Whether the Respondent-Advocate has committed any misconduct? Complainant examined 42 witnesses including himself, and got three documents marked. The Respondent examined himself as his witness and got four documents marked. From the evidence there was no doubt in the minds of the members of the D.C. of B.C.I. that the Respondent-Advocate in collusion with the impostor deceived innocent people, and also that he had defrauded the Complainant among others. Several objections raised by the Respondent on the technicalities were overruled by the D.C. of B.C.I. Once the fact of fraud was proved, there was no doubt that the Respondent had committed professional misconduct. The Respondent did not show any regret or remorse. The misconduct committed by the Respondent was of a very serious nature. There were no extenuating circumstances. ORDER Therefore, the D.C. of B.C.I. ordered for removal of the name of the Respondent from the Roll of Advocates. He was also ordered to pay Rs. 2,000 to the Complainant towards the cost of the proceedings. The D.C. of B.C.I. relied upon the judgements of the Supreme Court reported in AIR 1963 SC 1313 and AIR 1985 SC 28 for giving the punishment in the cases of misconduct. 50 Selected Opinions of the Bar Council of India 56 ORDER In view of the pending litigation between the parties, B.C.I. thought it proper to take a lenient view in respect of punishment and even though the misconduct was of very serious nature, the Respondent was suspended from practice for a period of two years. CASE 26 (Cheating the Client) 16(3&4) 1989 IBR 563 B.C.I. Tr. Case No. 24/1986 C.L. vs N.T.S. Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members) Judgement Dated 26th November, 1988 FACTS OF THE CASE Complainant’s Case: Complainant wanted to initiate legal proceedings against her neighbour and in that connection she contacted the Respondent. The Respondent advised her to issue a notice to the said neighbour and accordingly the Complainant got a notice issued to the neighbour through the Respondent. As the notice was ignored by the neighbour, the Respondent advised the Complainant to institute a suit against the neighbour. He also demanded some money towards his fees and expenses. The same was paid by the Complainant’s husband to the Respondent. After some time the Respondent said that he had filed the suit and a local commissioner had been appointed by the Court. He demanded some more money to pay the commissioner’s fee. The Complainant’s husband paid the same promptly. The Complainant’s husband used to be away on business tours and the Respondent used to give information to the Complainant about the progress of the case. Once when the Complainant’s husband was in Delhi he contacted the Respondent and asked about the progress in the case. Respondent stated that the suit had been decreed in favour of the Complainant, but the neighbour had preferred an appeal against the said order. However he refused to disclose the name of the Court in which the suit was filed and the name of the Court in which the appeal was instituted. When the Complainant’s husband demanded to see the file it was put off by the Respondent on one pretext or other. Even though the Complainant’s husband contacted him on several occasions, the file was not shown to him. Finally the Respondent told the name of the court in which the appeal was filed. On inquiry this turned to be false. When Respondent was confronted with this, he told that due to some lacunae in the previous suit, a fresh suit had to be filed, and demanded more money which was also paid by the Complainant’s husband. Subsequently on inquiry it was found that this time the Respondent had filed a suit as promised, but had affixed court fee to the tune of only 10% of the money received by him from the Complainant’s husband towards court fee. 57 50 Selected Opinions of the Bar Council of India 58 Respondent’s Case: Respondent denied the allegations made against him and stated that the Complainant had not engaged him for instituting any legal proceedings against her neighbour, nor had he issued any notice to the neighbour of the Complainant on behalf of the Complainant. He contended that since the construction of the premises, he had acted for the Complainant as well as her neighbour and he had a procured permission under sec. 21 of Delhi Rent Control Act. Therefore he could not have acted for the Complainant in a suit against the neighbour. As he refused to act for the Complainant on that ground, he was requested to become the mediator and settle their dispute amicably. Thus he has never acted for the Complainant and except for filing a petition under the Delhi Rent Control Act, and he had received a fee for that purpose. He contended that he had issued receipts for those amounts. By this time the Complainant had died and her husband filed a rejoinder to the defence filed by the Respondent. He gave the number and the date of the D.D. through which he had paid the money in the first instance. He also stated that the Respondent had got issued a notice to the neighbour through one of his friend Advocates. When the Complainant’s husband asked about this, the Respondent stated that, that Advocate is his associate and therefore there is nothing wrong in issuing a notice in his name. Complainant’s husband also denied having requested the Respondent to act as mediator. PROCEEDINGS S.B.C. initiated inquiry against the Respondent through one of the Advocates. The Advocate conducting inquiry gathered sufficient evidence against the Respondent and categorically directed him to refund the amount to the Complainant as he did not file any suit even after accepting the money. Complainant refused to accept the money without the same being noted in the records of the case because several similar complaints filed by several other persons were pending against the Respondent and he wanted to create a record against the Respondent. The Respondent said that the Complainant’s witness was a got up and false witness who could not even tell the location of the Complainant’s house. B.C.I. did not attach much importance to the evidence of this witness as he was only a messenger sent by the original Complainant to the Respondent. Another witness of the Complainant supported all the facts mentioned in the complaint including the fact that the Respondent did not file suit initially in spite of being paid money and also about the filing of the suit subsequently by receiving more money. He also stated that he recovered 10 times more money than necessary towards court fee. Respondent on the other hand said that he was not given any money for filing suit but it was a fee for having obtained permission under sec. 21 of Delhi Rent Control Act. In his pleadings he had told that he was paid from time to time fee for obtaining permission 61 50 Selected Opinions of the Bar Council of India All the cases were decided in favour of the Respondent by the trial courts and their orders were upheld by the High Court. Appeals in respect of all of them were pending before the Hon’ble Supreme Court. Complainant had chosen to file the complaint at this juncture. As the matters were subjudiced, the D.C. of the B.C.I. did not choose to got into the merits of the cases and to hold whether or not the documents were genuine. Instead, it concentrated on the second allegation as to the false statements by the Respondent. Three documents were produced the relevant portions of which read as under: Ex. C9: “I do not remember exactly if I was the counsel for the mother of the defendant in some ejectment petitions in 1969 as the Shri KST Advocate conducted her affairs. It may be possible that Shri KST Advocate used to come from Chandigarh and maybe he had obtained my signatures on the power of attorney so that in his absence the case may not be dismissed for default. I do not remember if I had ever appeared in any such application in the Court.” Ex. C10: “I never have acted as her Council in any the worse case. I also do not remember having acted as Council for her mother in any ejectment proceedings.” Ex. C11: “Ever since the beginning of 1971 I never conducted a case on behalf of the defendant, nor has she had consulted me in any legal matter.” Perusal of the records showed that the first case lasted for two months and only the power of attorney of the Respondent was filed in it. The second case lasted for seven months before it was compromised and the third case for about two months. In these cases the Respondent was not Advocate. Respondent being the 75 years of the age could not recall the said facts when his statements were recorded. It could not be ruled out that his memory was failing. The standard of proof required in the cases of professional misconduct is of a very strict nature, the proceedings being quasi criminal in nature. Therefore, the B.C.I. was of the opinion that professional or other misconduct had not been proved in the case against the Respondent. The D.C. of the B.C.I. further observed that the fact that the Respondent was guilty of misconduct on earlier occasions cannot be considered too hold him guilty in this case. ORDER In the result, the appeal was allowed and the judgement and order and sentence passed by the Punjab and Haryana S.B.C. against the Respondent was set aside. CASE 28 (Making False Assurances) 14(4) 1987 IBR 756 D.C. Appeal No. 34/1985 R vs. Y and S Judgement Dated 26th September, 1987 FACTS OF THE CASE Complainant’s Case: The Complainants jointly started an industry-cum-laboratory under the name and style of to “The Universal Scientific and Industrial Centre”, under the financial assistance from the Canara Bank. The Bank had originally sanctioned a loan of Rs. 20 lakhs, after releasing a part of the loan it stopped the payment and initiated legal proceedings for the recovery of the loan already released. The Respondent- Advocate was engaged by the Complainant to represent him in the said case. The Respondent-Advocate assured that he will be able to get a compensation of Rs. 50 lakhs from the Bank at the rate of Rs. 60,000 per month for the abrupt stoppage of payment. For this he collected excess money apart from the agreed fee from the Complainants. But he did not take any steps for getting the compensation. On the contrary he even failed to cross-examine the Bank. Thus he had played fraud and therefore was guilty of misconduct. Respondent’s Case: The Respondent admitted that he was engaged by the Complainants to represent them in their case against the Bank. He also admitted that he had received free from the Complainants, but denied that he had collected excessive money from them as claimed in the complaint. The Respondent contended that he had not assured to get them any damages. Considering the various aspects of the suit, the Complainants were not ready to depose before the court, and therefore he had advised them to compromise the case. This was misunderstood by the Complainants. PROCEEDINGS The Complainants did not examine themselves before the D.C. of the S.B.C. Their Power of Attorney-holder was examined as their only witness. He produced several documents and got them marked. Respondent was the only witness on his side. From the records the D.C. of the S.B.C. was satisfied that the Complainants had proved their case against the Respondent that he had collected excess money by making false promise. Therefore the D.C. of the S.B.C. was of the opinion that he was guilty of 62 63 50 Selected Opinions of the Bar Council of India misconduct. However as the Respondent was aged about 80 years and had put in about 50 years of practice he was only reprimanded. The Complainants had produced several counterfoils of cheques to prove their case. They also produced the pass book. The Respondent gave a strange and curious explanation to these. He said that the cheques were sent him through a person who used take the signature of the Respondent on the cheques and he used to take pay cash to the Respondent under the pretext that it was difficult for him because of his age to go to the bank to encash the cheques. He used to take back the cheques and probably he used to tamper with them. This argument of the Respondent was dismissed by the D.C. of the B.C.I. with contempt. At this stage the Respondent offered to refund the money collected by him in excess of his fees. This itself showed that he had collected excess money as alleged by the Complainants. ORDER Therefore the appeal was dismissed and the order of the lower DC was upheld on conviction and punishment. 50 Selected Opinions of the Bar Council of India 66 for recovery of the amount would be dilatory, in the Respondent initiated winding-up proceedings. As the notices issued to the company came unserved, citation was issued in two leading newspapers and after waiting for the representation of the company, the High Court issued ex parte order for winding up of the company. Only then the Complainant approached Respondent with his niece, who is her close friend, and not alone as averred in the complaint. She paid him Rs. 7,600 and promised to pay the balance of Rs. 5,000 on the next day. Accordingly, she paid the balance of Rs. 5,000 through a cheque in the Court lounge. Therefore, this is a false case and the Respondent has not committed any misconduct as averred in the complaint. PROCEEDINGS In her evidence Complainant supported her case and denied to have gone to meet the Respondent when he was a Central Government officer for attestation of any passport applications. She also denied the entire case of the Respondent. The serious allegations made by the Complainant against the Respondent was to the effect that she was forced to pay him a sum of Rs. 10,000 in cash under pressure, coercion and undue influence by the Respondent, and that he issued a receipt for only the Rs. 7,600. However there was no substantial evidence to this effect. It was only her self-serving statement to this effect was on record. On the other hand, the Respondent has not only categorically denied the case of the Complainant but also had led the evidence of his niece who was an eyewitness. The D.C. of B.C.I. found it difficult to believe that being a well educated lady and Managing Director of a company she was forced to pay amount in excess of the receipt given to her. She could have a deposited the money in the High Court, had the Respondent demanded more money than she was bound to pay him. The documents filed by the Complainant did not show any case in support of the Complainant. The Complainant had produced a receipt and a no- objection certificate for vacating the winding-up order. Both documents were signed by the Respondent on the same date as could be seen from the date on them. Therefore, there was no occasion for the Respondent to force her to part with Rs. 5,000 next day for issuing no objection certificate. Further, if the cheque was issued under coercion, the Complainant could have written to the bank to stop payment. The cheque was delivered to the Respondent after the bank hours and on the same day during the post lunch session of the High Court the winding-up proceedings in the High Court were dropped. The cheque was encashed only on the next day. She had ample of time to stop the payment. Therefore the D.C. of the B.C.I. was satisfied that not only has the Complainant dismally failed in proving her case, but the true state of affairs were truthfully brought out in detail by the Respondent in his defence. 67 50 Selected Opinions of the Bar Council of India ORDER In the circumstances the complaint was dismissed. And as it was a case of a dishonest and a malicious prosecution, the Respondent was entitled to a heavy cost which was ordered by the B.C.I. In this case the Respondent filed an application under sec. 340 Cr.P.C. r/w sec. 193 I.P.C. and sec. 42(2) of the Advocates Act. Under sec. 42(2), Advocates Act, the proceedings before the D.C. of the Bar Councils are deemed to be judicial proceedings within the meaning of sec. 193 and 223 of I.P.C. Therefore, if the D.C. finds it a case of giving false evidence and fabricating false evidence for the purpose of being used in the proceedings before it, the D.C. can direct the filing of criminal complaint. In this case, for the reasons recorded therein, the D.C. of B.C.I. found it not a fit case for exercise of its jurisdiction under sec. 42(2) of Advocates Act. CASE 30 (Disregard of Client’s Interest) 15(3&4) 1988 IBR 354 D.C. Appeal No. 33/1986 G. vs. O. Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members) Judgement Dated 9th July 1988 FACTS OF THE CASE Complainant’s Case: Complainant had engaged the Respondent for legal services and had paid him some amount towards fees and expenses. He had also signed vakalatnama in his favour. Respondent advised the Complainant that he would be informed about the progress of the proceedings. But in spite of several reminders Respondent did not inform the Complainant about the progress in the matter. PROCEEDINGS Respondent did not appear before the D.C. of the S.B.C.. The D.C. of the S.B.C. came to the conclusion that there was a wilful and callous disregard of the interest of the client by the Respondent-Advocate and it was a conduct not befitting an Advocate. Therefore it passed order suspending the Respondent from practice for a period of 5 years. Respondent appeared before the D.C. of the B.C.I. for the first time and pleaded that though he had committed professional misconduct, he had refunded the entire amount to the Complainant, and therefore the lapse should be condoned. The Complainant also filed a memo to the effect that he had received the entire amount from the Respondent. The D.C. of the B.C.I. came to the conclusion that the records clearly showed that there was no intentional lapse on the part of the Respondent-Advocate. But at the same time the B.C.I. observed that the Respondent-Advocate had not cared to act in a manner befitting an Advocate in the interest of his client. In view of this he had committed professional misconduct. However looking to the fact that the Respondent did not contest the matter and made a clean breast of the entire matter before the D.C.s of the Bar Councils and also because he had made the refund of the money to the client’s 68 71 50 Selected Opinions of the Bar Council of India sufficient cause and unless the reasonable and sufficient notice was given to the Complainant Rule 12 Section II in Part VII runs as under: “An advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned.” The letter produced by the Respondent as the notice by the Complainant was dated 2.7.1975 whereas the notice given by her on behalf of the Complainant to the Municipal Corporation was dated 19.9.1977. Hence it was not taken into account Further, the Respondent falsely denied that she was not representing the Complainant in the appeal. Therefore, it was held that the Respondent had withdrawn from the case without giving sufficient reason and notice. ORDER The D.C. of the B.C.I. held that the Respondent had committed professional misconduct within the provisions of section 35 of the Advocates Act. But as the matter was a long pending one, D.C. of the B.C.I. gave the punishment of only reprimand under sec. 35(3) (b). CASE 32 (Representing the Other Side) 19(3&4) 1992 IBR 147 B.C.I. Tr. Case No. 39/1987 G vs. S Shri C.L. Sachdeva (Chairman) and Shri Bhagawati Prasad and Smt. Kamala Jain (Members) Judgement Dated 17th September 1991 FACTS OF THE CASE Complainant’s Case: Complainant was a partner in a firm under the name and style of M/s. Asian Live Pharma, and the Respondents were the Advocates and legal advisors to this firm. A meeting of partners of the firm, including the Complainant, with the Respondents took place in the office of the Respondents. At this meeting, the Complainant disclosed all the facts of his case to the Respondents. Subsequently, there was a suit for dissolution of partnership among the members of the said firm. In that suit, the Respondents represented the other partners against the Complainant. As the Complainant had disclosed his case to the Respondents, they have committed misconduct by appearing against him. Respondents’ Case: Respondents denied the case of the Complainant. They denied that the Complainant had supplied or disclosed any information to them, which would make them liable for passing on secrets. PROCEEDINGS The Complainant stated in his deposition that the meeting took place for about 15 minutes. In that meeting all the partners of his firm participated. During the meeting, the Complainant informed the Respondents, in confidence, about manoeuvring of accounts and fraud committed by him in the partnership firm. As the meeting took place only for about 15 minutes, during such a short meeting all the facts averred by the Complainant could not have happened. Therefore, the D.C. of the B.C.I. held that the Respondents had not committed the alleged misconduct. But it felt 72 73 50 Selected Opinions of the Bar Council of India that in the propriety of things, the Respondents should not continue with the case. The Respondents agreed to this. ORDER Therefore, in the light of above reasons, the D.C. of the B.C.I. was pleased to dismiss the complaint. CASE 34 (Changing of Side) 16(1) 1989 IBR 110 B.C.I. Tr. Case No. 52/1988 S.G. vs. C.P. Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members) Judgement Dated 18th March 1989 FACTS OF THE CASE Complainant’s Case: The Complainant has a dispute pending before the Registrar of Firms, Societies and Chit Fund, Kshetra Kajuri, Varanasi. The said case is pending since about 5 years prior to the date of this complaint. In that case, the Complainant is represented by the Respondent-Advocate. The Complainant came to know that the Assistant Registrar had gone in to collusion with the other side, and that he could not expect to get any justice from him. Therefore, he filed a suit in the Court of Munsiff, City Varanasi. In that case, the Respondent represented the other side. The Respondent had represented the Complainant before the Assistant Registrar, and as such, he had been knowing all the facts of the Complainant’s case. Therefore by joining the other side in the case before the Munsiff, the Respondent had committed professional misconduct. Respondent’s Case: Several notices which were issued to the Respondent were returned unserved and finally one notice was served upon him. However, he did not care to appear before the D.C. and to present his side of the case. Therefore, the Committee placed him ex parte. PROCEEDINGS The only question before the Bar Council was: Whether the Complainant has succeeded in establishing that in fact the Respondent had worked for him before the Assistant Registrar? This being an ex parte case, the Complainant did not intend to adduce further evidence and rested his case on his complaint and the records on the file called from the Assistant Registrar. On Annexure 1, Photostat copy of the petition filed before the Assistant Registrar, there was signature purporting to be that of the Respondent. Annexure 2 consisted of some documents which were alleged to be written by the 76 77 50 Selected Opinions of the Bar Council of India Respondent in his own hand. According to the Complainant this clearly showed that the Respondent was duly acquainted with the facts of the Complainant’s case. As such, the Complainant argued that the Respondent has committed professional misconduct by joining the other side in the civil suit. According the Complainant Annexures 1 and 2 were the true copies of their originals, and Annexure 1 contained the signature alleged to be that of the Respondent. But the original called from the Assistant Registrar did not bear any such signature. Annexure 2 was alleged to be in the handwriting of the Respondent. But a sample of Respondent’s admitted handwriting was not made available for comparison. No vakalatnama was produced. No evidence was lead to prove the signature on Annexure 1. Therefore it was held that Annexure 1 was not a true copy of the original. It was also held that Annexure 2 was not proven to be in the handwriting of the Respondent. ORDER In the result, it was held that the Complainant had failed to prove his case. Hence the case was dismissed. CASE 35 (Appearing Against Person Giving Instructions to the Advocate) 15(1&2) 1988 IBR 193 D.C. Appeal No. 6/1981 R vs C Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members) Judgement Dated 31st December, 1987 FACTS OF THE CASE Complainant’s Case: Complainant is the Power of Attorney-holder of a woman whose cases were conducted by the Respondent. The Complainant in his capacity of Power of Attorney-holder gave instructions and supplied evidence to the Respondent. Several cases in which the said a woman was a party were pending with the Respondent. During the pendency of these litigations the said woman cancelled her power of attorney which she had executed in favour of the Complainant. Subsequently she executed a will in favour of the Complainant. The Complainant’s sister’s daughter who was staying with the said a woman also claimed that the said woman had executed a will in her favour. Thus there was a dispute among the Complainant and he is niece, and the Respondent represented the niece in some litigation. He had taken all details about the properties involved in these litigations from the Complainant when he was acting as the Power of Attorney-holder of the said woman. Hence the Respondent has committed professional misconduct by appearing against him. PROCEEDINGS It was admitted by the Complainant that he had not seen the Respondent after the cancellation of the power of attorney. So it was also not disputed that the Respondent had never represented the Complainant in his personal capacity. Complainant never sought the advice of the Respondent in respect of the will or any property of the deceased. Therefore there is no relationship of a client and Advocate between the Complainant and the Respondent. Therefore the DC of Maharashtra S.B.C. held that there was no misconduct of the Respondent if he has represented the opposite party in a suit against the Complainant. ORDER The decision of the Maharashtra Bar Council was upheld by the B.C.I. 78 CASE 37 (Misguiding Court by Filing False Case) 25(1) 1998 IBR139 B.C.I. Tr. Case No. 40/1991 District Judge, Nainital vs. R Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members) Judgement Dated 5th October, 1996 FACTS OF THE CASE Proceedings under sec. 35 of the Advocates Act 1961 were initiated against the Respondent-Advocate in D.C. Case No. 59/89 before the D.C. of Uttar Pradesh S.B.C. It appears from the records that on account of dilatory tactics adopted by the Respondent- Advocate, D.C. of S.B.C. could not dispose of the matter within 1 year. Therefore, the matter stood transferred to the D.C. of B.C.I. under sec. 36 B of the Advocates Act, 1961. Several notices were sent to the Respondent, but the Respondent did not appear. Hence the case was decided ex parte against him. A copy of the judgement dated 2.12.1987 passed by the District Judge, Nainital in a Review Petition in a Motor Accident Case was on record. From this judgement following facts appeared. One Shri Mohsin Ali Khan s/o Mohd. Ali Khan of Bareilly filed a MAC No. 14/82 alleging that he was literally crippled and permanently disabled due to the injuries sustained by him in an accident caused by a mini bus bearing registration No. USE 7725, which was insured by New India Assurance Co. Later on, an application was filed by the L.R.s of the Petitioner Mohsin Ali Khan alleging that Mohsin Ali Khan had died on 28.4.83 due to the injuries sustained by him in the accident, and they prayed that they be included as his Legal Representatives. Another MAC No. 21/84 was also instituted by the said L.R.s of Mohsin Ali Khan alleging that they were the dependants of Shri Mohsin Ali Khan who died in a road accident on 11.9.1983 caused by a mini bus bearing registration No. USM 6949 which was insured by M/s. Oriental Fire and General Insurance Co. Ltd. If Mohsin Ali Khan had died on 28.4.83, MAC No. 21/84 is a false case. This case was filed by the Respondent-Advocate who is no other than the brother of Mohsin Ali Khan. It is clear that in collusion with the family members of Mohsin Ali Khan the Respondent- Advocate had filed this false case to obtain an award from the Tribunal. Being Mohsin 81 50 Selected Opinions of the Bar Council of India 82 Ali Khan’s brother, he very well knew that Mohsin Ali Khan had died on 28.4.83 and not on 11.9.1983 as alleged in the petition. This fraud came to the light when M/s. Oriental Fire & General Insurance Co. Ltd. applied for quashing of the award of MACT in MAC No. 21/84, and got the same quashed. District Judge, Nainital referred the case to U.P. S.B.C. for initiating misconduct proceedings against the Respondent. PROCEEDINGS The D.C. of B.C.I. framed the following issues: 1. Whether the Respondent has stated any falsehood before the MACT, Nainital for illegal gains? 2. Whether the Respondent has committed any fraud in misrepresenting the facts deliberately before the tribunal? 3. Whether the Respondent has committed any professional misconduct? From the above facts, the D.C. of B.C.I. made the following observations: “In recent past it has been experienced that in the cases of Motor Accident Claim, the role of the lawyers in some of the cases has not been up to the mark. Cases of misappropriation of money by the lawyers awarded by the way of compensation were frequently being brought to the notice of B.C.I. as a result of which necessary amendments were made in the practice of preparation of the cheques in the name of the claimant’s counsel to the claimants themselves, which has now been adopted. Facts of the above noted case are peculiar in nature and the same cannot be dealt softly and casually. The charged Advocate 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 levelled against him.” ORDER Under the circumstances, committee was of the view that the charged Advocate should be debarred for a period of two year from the date of notification of the order. CASE 38 (Identifying Wrong Person before Court) 16(3&4) 1989 IBR 550 B.C.I. Tr. Case No. 6/1984 J.R. vs J.K. Shri V.C. Mishra (Chairman) and Shri B.N. Sharma and Shri Viresh Mishra (Members) Judgement Dated 21st May, 1989 FACTS OF THE CASE Complainant’s Case: Land of the Complainant was acquired by the state along with some other lands. The state deposited compensation amount in the Court. But due to mistake, the list contained the name of some other person (A) in place of the name of the Complainant. A third person (B) withdrew the amount by representing himself to be A. The Respondent identified B as A, and thereby the Respondent had committed misconduct. Respondent’s Case: The list consisted of names of as many as 136 persons and these persons had to furnish security of sarpanch for the money and get the amount released from the Court. The Respondent identified the sarpanch and the sarpanch in turn identified the parties. It was further alleged that the person who withdrew the money belonging to the Complainant subsequently realised the mistake and immediately thereupon he redeposited the amount in the court. PROCEEDINGS The following issue was framed by the Bar Council: Is the Respondent guilty of misconduct by identifying wrong person before the court? The evidence of an independent witness adduced by the Respondent clearly showed that the practice of the court was that the Advocate identifies the sarpanch and numberdars, and the sarpanch and numberdars in turn identify the parties. Another witness on the side of the Respondent also deposed to the same effect. There was no reason to disbelieve these testimonies. Also the receipt showed that the person in question was identified by the sarpanch and an endorsement to that effect was found on the back of the receipt. 83 50 Selected Opinions of the Bar Council of India 86 Sheristedar was not lead to throw light upon the matter. No attempt was also made to explain in whose hand the correction was effected. It is dangerous to conclude that the same was done by the Public Prosecutor on the ground that he was an interested person. The deposition of the said witness in the criminal case showed that he was first asked whether accused were a shown to him prior to the identification parade. This was denied by him. Later a suggestion was made to him that prior to the identification parade the accused were shown to him, and his deposition was recorded as an admission of suggestion. Later on, a change was made to the statement by changing it from “true to say that” to “not true to say that”. Thus it was clear that at the time of deposition itself the correction was made. It was not known at whose resistance it was make. Even if it was made at the instance of the public prosecutor, it was difficult to attribute any mala fide intention or ulterior motive to it. Therefore the Bar Council could not hold the Public Prosecutor guilty of professional misconduct. ORDER Therefore the D.C. of the S.B.C., after considering the records in detail, rejected the Complainant. The order and the reasons for the order given by the D.C. of the S.B.C. were upheld by the D.C. of the B.C.I. and the appeal was dismissed. CASE 40 (Interfering with Decision by Influencing the Judge) 16(2) 1989 IBR 289 B.C.I. Tr. Case No. 2/1980 Suo Motu Enquiry vs. Smt. S.T.B. Shri N. Rangaraj (Chairman) and Shri P.V. Shetty and Shri A.B. Patil (Members) Judgement Dated 12th September 1988 FACTS OF THE CASE Complainant’s Case: Maharashtra S.B.C. initiated suo motu inquiry against the Respondent on the basis of a complaint filed by a Housing Society. There was a dispute between the Housing Society and a Company of Builders in respect of construction of certain building entrusted by the society to the builders. The builders filed a civil suit against a society and obtained a temporary injunction against the society restraining it from getting the building constructed through any other builder. The matter was delayed beyond reasonable period and the society suffered a great hardship, loss and inconvenience. Under these circumstances the Respondent-Advocate assured the society that she would get the matter disposed of early by exercising her personal influence over the judge and demanded certain amount of money for that purpose. All the members of the Society contributed the money and met the demand of the Respondent-Advocate. Therefore the Respondent is guilty of misconduct. Respondent’s Case: The Respondent denied all the allegations made against her. She denied that she had taken any money from the society or that she had any connection with the society. She stated that she had obtained a loan from the Secretary of the Society in his personal capacity and as there was a delay in repayment this false complaint is lodged against her. PROCEEDINGS On the basis of the pleadings of the parties the S.B.C. framed the following issues: 1. Whether Respondent received money from the Society for the purpose of exercising her personal influence over the judge and the temporary injunction vacated? 2. Whether the Respondent had committed any professional misconduct? 87 50 Selected Opinions of the Bar Council of India 88 Both the witnesses produced by the Complainant stated in their evidence as to the fact of payment of money to the Respondent. The first witness also stated the purpose for which it was paid to her while the second witness could not tell why the money was paid to her. The first witness was not cross-examined by the Respondent. The Secretary of the Society, who was the Respondent’s witness supported the Respondent’s case that she had taken loan from him. But the Bar Council was inclined to accept the evidence of the Complainant’s witnesses which categorically stated that the money paid to the Respondent has collected from the members of the society, as this evidence the remained unchallenged by the Respondent. It appeared to the Bar Council that the Respondent’s witness was only trying to support the case of the Respondent. Further, it was the case of the Respondent that the Secretary of the Society was instrumental in filing this complaint as there was a delay in the payment of loan advanced by him to the Respondent. Under these circumstances if the Secretary of the Society comes out and supporters the case of the Respondent, his evidence is not worthy of any credit. Further it was elicited from the second witness of the Complainant in his cross-examination that the money was collected from all the members of the society and was paid to the Respondent in her personal capacity. From this evidence it was clear that the money was paid to her by the Society and that it was not a loan advanced by the Secretary in his personal capacity. The Respondent being an Advocate was required to maintain professional integrity and standard. She was required only to plead for the party and put forward the case and assist the Court to come to a right conclusion. No Advocate can offer to do something to get him the case or get a favourable order from the Court by exercising his personal influence over the presiding officer of the Court. D.C. of B.C.I. held that the Respondent had received money from the Society assuring that she would exercise her personal influence over the judge and get the work done. ORDER Therefore B.C.I. found the Respondent guilty of professional misconduct of severe nature. The Respondent was suspended from practice for a period of 1 year. The Respondent was also ordered to pay a sum of Rs. 1,000 to the Complainant towards the costs of the case. B.C.I. would have taken a very serious view of the matter, having regard to the gravity of misconduct committed by the Respondent. But as she was in the beginning years of her career as an Advocate, and also because she had refunded the entire money to the Society, the D.C. of the B.C.I. was inclined to take lenient view in respect of the quantum of punishment. B.C.I. relied upon the decision of Supreme Court reported in AIR 1985 SC 110 in support of its opinion. CASE 42 (Sending Notice to the Presiding Officer for Passing Remarks against the Advocate in the Judgement) 15(1&2) 1988 IBR 200 D.C. Appeal No. 41/1986 A.K. vs. R.S. Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members) Judgement Dated 17th October, 1987 FACTS OF THE CASE Complainant’s Case: In the judgement in a suit conducted by the Respondent-Advocate before the Complainant, the Complainant made certain remarks against the Respondent Advocate. The Respondent issued a notice under sec. 80 Code of Civil Procedure. In the notice the Respondent claimed damages from the Complainant for making such remarks in the judgement. The Complainant took a serious note of the same and represented the matter to the High Court with the observation that the Respondent had committed professional misconduct in so sending notice to him. The High Court directed him to refer the matter to the Andhra Pradesh S.B.C.. Therefore the S.B.C. initiated suo motu inquiry against the Respondent. Respondent’s Case: The Respondent admitted that he had issued the notice to the Complainant, but that was because of anxiety. He did not have any intention to proceed against the Complainant. He also brought it to the notice of the B.C.I. that he had been prosecuted for contempt of court and in those proceedings he had tendered his apology to the High Court. He also said that he was about 70 years of age and actually did not mean anything against the Complainant. PROCEEDINGS The D.C. of the S.B.C. felt that the Act on the part of the Respondent was highly unethical. It opined that if the Advocate was aggrieved by the findings of the Complainant he should have taken some other recourse for getting the relief. He should not have sent notice to the Presiding Officer. It referred to the duty of the Advocate under section 49(1)(c) in Chapter II of Part VII. Rule 1 clearly states the limit by which the Advocates can conduct himself as a member of a noble profession. Hence he was held guilty of professional misconduct and was reprimanded. 91 50 Selected Opinions of the Bar Council of India 92 D.C. of the B.C.I. also formed the opinion that the Respondent-Advocate had exceeded his limits. But it accepted his submission that the same was done only in a state of anxiety without any intention to insinuate the Complainant. The Respondent had already tendered his apologies to the High Court. Under these circumstances B.C.I. was of the opinion that the act of the Respondent was only a bona fide mistake not amounting to professional misconduct. ORDER Therefore the appeal was allowed setting aside the order of the Andhra Pradesh S.B.C.. The D.C. of the B.C.I. expressed that the Respondent should behave himself properly in future, and should not indulge in any such activities. It cautioned him that he should behave as a member of the noble profession. CASE 43 (Conduct Unbecoming of an Advocate) 16(1) 1989 IBR 99 B.C.I. Tr. Case No. 16/1988 R.G. vs. M.S. Shri L.P. Bhargava (Chairman) and Shri N. Rangaraj and Shri S.N. Tandon (Members) Judgement Dated 16th October 1988 FACTS OF THE CASE Complainant’s Case: Complainant was sitting at the Court compound near the office of the Respondent-Advocate waiting for his wife. Respondent-Advocate all of a sudden came to him and without any pretext abused him and also threatened him of dire consequences. Complainant moved away from that place and searched for his wife. He saw her sitting in the canteen with the junior of the Respondent. Before the Complainant could approach the place, his wife and the junior Advocate had disappeared from that place. Hence the conduct of the Respondent is unbecoming of an Advocate, and therefore, he should be dealt with according to the law. Respondent’s Case: All the allegations made in the complaint were denied by the Respondent. He had nothing to do with the alleged incidents. In fact, the lady alleged to be the wife of the Complainant is not his wife at all. She was, in fact, a client of the Respondent’s junior and on that particular a day she was being chased by the Complainant who was an anti-social element. She entered the Respondent’s office seeking his help. In order to help the lady in distress, the Respondent warned the Complainant and sent him away. PROCEEDINGS S.B.C. sent several notices to the Complainant, but he did not appear before the D.C. In the process, there was efflux of time stipulated under the Advocates Act 1961. Therefore the case stood transferred before the Bar Council India. Before the B.C.I. the Complainant appeared and submitted that he was not pressing the complaint and that it was not directed against the Respondent. He had no grievance against the Respondent. By mistake his name was mentioned as the Respondent. The Complainant wanted to seek the remedy against some other person. 93