Case No. 44/1995, Vol. 26(1), 1999, p. 163
Headnote
Advocates Act, 1961 (Act No. 25 of 1961), Section 35 – Professional Misconduct
The respondent advocate received Rs. 25,102/- from the complainant towards court fees in a suit for declaration and damages but paid only Rs. 100/- as court fees. He also withdrew an injunction application before the court without any instructions from the complainant.
Pursuant to the complainant's notice dated 11.01.1993 demanding refund of the court fees and other amounts, the respondent issued a cheque of Rs. 38,000/-, which was dishonoured twice due to "insufficient funds." The respondent denied the allegations and alleged that his cheque book had been stolen.
The Disciplinary Committee observed that "Man may lie but the circumstances do not," emphasizing it as a cardinal principle in the evaluation of evidence.
The Committee questioned how a civil suit could be filed without properly valuing the suit for the purposes of jurisdiction and court fees, with the total amount not being mentioned.
The conduct of the respondent advocate was considered as follows:
He made alterations in the plaint without the knowledge of the plaintiff.
He failed to deposit the court fees realized from the complainant in the court.
The cheque issued by him towards refund of the amount was dishonoured twice.
These circumstances compounded the guilt of the respondent advocate.
The Committee observed that:
"The Bar is not a private guild like that of barbers, butchers, candle stick makers, but by bold contrast, a public institution committed to public justice and pro bono public service, and if any member of this noble profession fails in setting an example of conduct worthy of emulation, then punishment should be inflicted depending upon the degree and gravity of misconduct."
Order: The respondent advocate's name was directed to be struck off from the roll of the Bar Council of Delhi, and costs of Rs. 5,000/- were imposed.
Facts of the Case
The respondent advocate received Rs. 25,102/- from the complainant towards court fees but deposited only Rs. 100/- as court fees.
After the complainant discovered this fact, repeatedly demanded repayment, and served a legal notice seeking return of Rs. 25,000/-, the respondent advocate issued a cheque for Rs. 38,000/- towards repayment of the said amount along with interest. However, upon presentation on two occasions, the cheque was dishonoured with the remark "Funds Insufficient."
The respondent advocate denied the allegations and contended that:
He had not received such a large amount from the complainant;
If any cheque had been issued and dishonoured, the complainant was at liberty to file a complaint under Section 138 of the Negotiable Instruments Act, 1881; and
He had not issued any cheque to the complainant.
Issues Framed by the BCI Disciplinary Committee
On account of the contradictory representations made by both parties, the BCI Disciplinary Committee framed the following issues for determination:
(9 issues to be written as per the pamphlet of DC case law in English.)
Judgment dated 02.03.1998 of the BCI Disciplinary Committee
When the complainant's suit was presented as a civil suit, the paragraph relating to court fees in the plaint did not specifically mention the amount and was drafted in a vague manner.
The plaint was returned by the court due to insufficient court fees. Thereafter, after amendments and changes were made, the plaint was represented with only Rs. 20/- as fixed court fees. The amended paragraph relating to court fees was inserted subsequently.
The complainant had not signed any of the amendments made in the plaint, including the amendment relating to the court fees paragraph.
The respondent advocate had issued receipts acknowledging receipt of Rs. 25,102/- and Rs. 398/-, totaling Rs. 25,400/-, towards court fees and other legal expenses.
The respondent advocate had separately received Rs. 6,500/- as professional fees (Rs. 3,000/- in cash and Rs. 3,500/- by cheque).
Only Rs. 100/- as court fees was ultimately paid. The amount was not mentioned when the plaint was initially drafted but was inserted later by amending the court fees paragraph. The court fees column had been deliberately left blank despite the court specifically directing:
"Claim amount and court fees paid should also be stated."
The respondent advocate also failed to pursue the relief of injunction in the plaint and did so without obtaining the complainant's consent.
Further, he failed to reply to the legal notice sent by the complainant. These circumstances were considered significant against him.
Findings regarding the cheque of Rs. 38,000/-
The BCI Disciplinary Committee observed that:
The cheque bore the signature of the respondent advocate.
It was an Account Payee cheque.
It was not issued personally in the complainant's name but was addressed to M/s. Siemens.
The two receipts issued by the respondent advocate did not confer any benefit upon the complainant. Rather, the cheque amount was intended to be deposited into the account of M/s. Siemens, and therefore the Committee concluded that the complainant had no motive or intention to forge the cheque.
The respondent advocate alleged that his signature on the cheque had been forged. However, the Committee observed that the bank returned the cheque with the endorsement "Insufficient Funds." At no stage did the bank mention any discrepancy between the authorized signature and the signature appearing on the cheque. Had there been any difference, the bank would have specifically stated that as the reason for dishonour.
Regarding the alleged theft of the cheque book, the Committee noted that no complaint had been lodged with any police station. Consequently, the Committee concluded that there was no possibility that the complainant had forged the respondent advocate's signature.
On the basis of the above facts, the Committee held that the respondent advocate had misappropriated the amount received from the complainant towards court fees.
Findings of the BCI Disciplinary Committee on the Issues
Issue No. 2
Whether the plaint was insufficiently stamped and only Rs. 100/- as court fees was affixed? If so, its effect.
The Committee held that the suit was valued at Rs. 1,00,000/-, and accordingly Rs. 25,102/- had been received towards court fees. However, only Rs. 100/- as court fees was deposited by the respondent advocate.
Issue No. 3
Whether the respondent failed to deposit the process fee in court after 26.02.1992? If so, its effect.
The Committee held that failure to deposit the process fee may occur for several reasons. The complainant failed to establish that the respondent advocate intentionally failed to deposit the process fee.
Issue No. 4
Whether the respondent withdrew the application under Order XXXIX Rules 1 and 2 read with Section 151 of the CPC without instructions from the complainant within two months of filing and failed to appear on the third hearing without any reason? If so, its effect.
The Committee observed that the complainant did not put any question regarding this allegation to the respondent advocate during cross-examination. Consequently, this allegation was held not proved.
Issue No. 7
Whether the present proceedings were barred on account of the remedy available under Order XXXVII CPC and due to pendency of criminal proceedings?
The Committee held that it was not proved that any criminal proceedings relating to the matter were pending. It further observed that the purpose of the disciplinary proceedings was entirely different, namely, to maintain public confidence in the legal profession.
The availability of a civil remedy under Order XXXVII CPC could not bar disciplinary proceedings because the object of such proceedings is to uphold the faith reposed by the public in the legal system, of which advocates are an integral part.
Punishment
While determining the punishment, the Committee relied upon the following Supreme Court decisions:
1. M. Veerabhadra Rao v. Tekchand, 1984 Supp SCC 571 (pp. 587–588)
The Supreme Court held:
"Legal Profession is monopolistic in character and this monopoly itself inheres certain high traditions which its members are expected to upkeep and uphold."
2. Bar Council of Maharashtra v. M. V. Dabholkar
Justice Krishna Iyer observed:
"The Bar is not a private guild (society for mutual aid or with common object) like that of barbers, butchers and candlestick makers but by bold contrast a public institution committed to public justice and pro bono publico service."
Justice Krishna Iyer further observed that pathological cases of professional misconduct committed by a few black sheep must be dealt with firmly to preserve the dignity of the Bar and the legal profession.
Decision of the BCI Disciplinary Committee
After considering the above Supreme Court decisions, the Committee directed that the respondent advocate shall:
Pay Rs. 38,000/- to the complainant together with interest at 9% per annum on Rs. 25,102/- from 31.03.1993 (the date of dishonour of the cheque) until payment, within two months from the date of the judgment.
Remain suspended from practice for five years and be debarred from practising before any court, tribunal or authority in India during the period of suspension.
In default of payment of Rs. 38,000/- together with the above interest within the stipulated period, his name shall stand struck off from the roll of the Bar Council of Delhi, and he shall be permanently debarred from practising anywhere in India.
Pay costs of Rs. 5,000/-.
All payments were directed to be made within two months from the date of communication of the order.
Appeal before the Supreme Court
The respondent advocate preferred an appeal under Section 38 of the Advocates Act, 1961 against the decision of the BCI Disciplinary Committee.
The Supreme Court passed the following orders:
The period of suspension was reduced from five years to two and a half years.
During the pendency of the proceedings before the Supreme Court, the respondent advocate's counsel deposited Rs. 40,000/- as an undertaking regarding the respondent's future good conduct. The amount was kept in a Fixed Deposit by the Supreme Court. The interest accrued thereon was utilized towards payment of Rs. 38,000/- together with interest at 9% per annum from 31.03.1993 until the date of payment, as directed by the Committee. The remaining amount was directed to be paid by the respondent advocate within one month from the date of the Supreme Court's judgment. The order imposing costs of Rs. 5,000/- was also confirmed.