Equivalent citations: 1993 AIR 1535, 1993 SCR (2)1006

Author: S Mohan

Bench: Mohan, S. (J)

Act:

Advocacy–Significance of profession–Punishment whether  to be commensurate with the degree and gravity of misconduct. Advocates Act, 1961-Section 38-Appeal-Misappropriation-Proof of–Enhancement of punishment and direction of Supreme Court to refund of amount pending with advocate.

Introduction:

Ethical codes apply to every profession irrespective of the nature of work. Doctors, teachers, corporate employees, every professional is guided by a set of ethical guidelines he/she is expected to adhere to. Professional ethics drive a person’s professional life and success. When it comes to the legal profession, ethical codes are given utmost importance. These apply to everyone starting from an intern to the Supreme Court Chief Justice. It is an advocate’s responsibility that he/she be truthful. The current case deals with misappropriation of amount paid. It is one of the rarest and unfortunate cases wherein the advocate was at fault and used his position to deceive his client who trusted him. The Bar Council and the court interpreted the facts right and based on the merits of the case found the advocate guilty of professional misconduct.

Issues Raised:

Whether the decision of the disciplinary Committee of the Bar Council be set aside ?

Whether there is misappropriation at the end of appellant?

Whether the appellant be punished for professional misconduct?

Facts of the Case:

1.     The respondent in the current case engaged the appellant in an earlier suit in which he was the defendant.

2.     The suit was compromised and the court ordered the respondent to pay Rs. 64,000 out of the total amount lying with the court receiver to the plaintiff.

3.     The court ordered to pay the balance to the respondent and to hand over the suit property over to the respondent by the court receiver.

4.     While the suit was pending, the court receiver inducted a tenant who filed for an interim injunction restraining the court receiver from handing over possession of the property to the respondent.

5.     That suit was continued.

6.     Upon the passing of the compromise decree, the appellant being the counsel for the respondent was requested to withdraw the amount lying with the court receiver and hand over the same to the respondent. A letter of authorisation was issued for the same.

7.     Pursuant to the instructions given in the letter, the appellant withdrew Rs. 50,379 from the court receiver but paid only Rs. 18,000 to the respondent.

8.     The respondent therefore filed a complaint before the Bar Council of India upon which the a notice was issued to the appellant.

9.     The appellant submitted his reply to the notice.

10.  The Disciplinary Committee of the Bar Council of India after hearing his arguments and considering the evidence produced by him as explanation, said that the burden of proof with respect to the total sum being paid to the respondent was on the appellant.  

11.  The committee did not accept the receipts the appellant produced as evidence of payment. He pleaded that the account books were lost which the committee believed was untrue.

12.  The appellant was suspended for two years and was directed to pay a sum of Rs. 500 to the complainant.

13.  He subsequently filed the present appeal against the order of the Disciplinary Committee of Bar Council of India.

Judgement:

The Court in this case pointed out that the order under appeal is unexceptional and found that there was no case for interference. It further stated that the order of two year’s suspension was not commensurate with the charges of misappropriation directing the issue of notice to the appellant.

The court with respect to the decision of the disciplinary committee was of the opinion that the committee had come to a conclusion that the receipts were faulty after proper appreciation of the evidence owing to the fact that the receipt was got up on a blank signed paper. The court recognised the fact that the appellant could not prove the due execution of the receipt. The Court stated that the appellant’s statement of account books had being lost in transit were rightly disbelieved. The Court firmly stated that considering all the circumstances it is a clear case of the misappropriation by the appellant and professional misconduct can be established. 

The court with respect to the appropriate punishment to be given to the appellant, spoke at length about the duties of an advocate and the responsibilities he must be bound by. The Court reiterated how and why the legal profession is considered to be noble.

The court referred to M. Veerabhadra Rao v. Tek Chand, wherein the advocate had committed forgery. It was held as a serious misconduct. This was referred in an attempt to discuss how professional misconduct must be dealt with.

The court referring to  Bar Council Of Maharashtra v. M.V Dabholkar stated that the role of the members of the Bar must be appreciated.

In this regard, the court spoke of the assumptions monopoly licence to practice law is based on. While the first is that lawyer has a socially useful function to perform, the second is that the lawyer is the professional person who must perform that particular function, and third about his/her performance  as a professional lawyer being regulated by themselves and by the profession as a whole formally.  

With respect to the punishment for professional misconduct, the court having regard to the gravity of the misconduct and keeping in view the motto that the punishment must be commensurate with the gravity of the misconduct, the court ordered for suspension of five years.

Besides the punishment to be given to the appellant, the court with respect to justice being served to the respondent, was of the view that the respondent should not be driven to a civil court for recovery of this amount after the appellant was found guilty thereby directing the decree in favour of the respondent for a sum of Rs. 22,379 with interest at 9% per annum from the date of the complaint till the date of payment.

The appeal was dismissed.

Conclusion:

No matter how much courts and their lengthy procedures are criticsed, people still say “I will see you at court”, “Justice prevails”, etc. This is reflective of people’s trust in judiciary. A client engages a lawyer and completely trusts him/her. A layman will not understand legal proceedings and cannot speak while the case is being heard in the court. The entire burden is on the advocate. Considering the amount of trust and hopes in the advocate, it is their obligation to atleast be truthful to the client if not help them win the case.

In the current case, the issue at hand was monetary in nature. When money is involved the last thing an advocate must do is fall prey to temptation and greed. The advocate deceiving the client for money is unfortunate and totally uncalled for. However, the case sends two strong messages. One from the respondent and one from the bar council and court. The respondent was vigilant and rightly identified the fraud and reported it. Often people either ignore the mishap and be happy that some money has reached them or let it go thinking it is a risk to mess with lawyers. The respondent fought for justice and got it delivered. It is often believed that professional relations are strong and a lawyer supports their peer. This was proved wrong in this case. The Disciplinary committee could rightly gazed through the facts and chose justice over supporting their professional peer. The court instead of striking the committee’s report, giving a harsher punishment restored faith in justice. As an advocate, the appellant tried to cover up his mistakes and play around with the loopholes in cases of monetary relief. A suspension was definitely called for. It can be concluded that when he ignored his professional responsibilities, the court used it’s professional duty towards the general public who fight for justice.