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PETITIONER: J.S. JADHAV

       Vs.

RESPONDENT: MUSTAFA HAJI MOHAMED YUSUF AND OTHERS

DATE OF JUDGMENT07/04/1993

BENCH: MOHAN, S. (J) BENCH: MOHAN, S. (J) KULDIP SINGH (J)

CITATION:  1993 AIR 1535            1993 SCR  (2)1006  1993 SCC  (2) 562        JT 1993 (2)   652  1993 SCALE  (2)429

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--Legality of.

HEADNOTE: The  respondent  was defendant in a suit.   He  engaged  the appellant  as  an  Advocate.  The suit  was  compromised  on 14.6.77 ordering that out of the amount lying with the Court receiver,  plaintiff was to be paid a sum of Rs. 64,000  and the  balance  to  be paid to  the  defendant-respondent  and possession  of  suit-property  to  be  handed  over  to  the respondent. During the tendency of the suit the Court Receiver  inducted a  tenant  in  a suit property.  The  tenant  filed  a  suit praying  for  an interim injunction  restraining  the  court receiver  from  handing over possession to  the  respondent. Tenant’s suit was continued. After  the  compromise  decree was passed  on  14.6.77,  the appellant  withdrew  a total amount of Rs. 50,379  from  the Court receiver.  Out of the amount, appellant paid only  Rs. 18,000 to the respondent.  On 9.1.81 the respondent filed  a complaint  against the appellant before the Bar  Council  of India.   On  receiving  a notice,  the  appellant  submitted reply. The  Disciplinary  Committee  of the  Bar  Council  rejected certain  receipts  produced  to  evidence  payment  to   the respondent  and  also  the plea of the  appellant  that  the account  books  were  lost.   The  Committee  suspended  the appellant for a period of two years and further directed  to pay a sum of Rs. 500 to the respondent. Before this Court the order of the Disciplinary Committee of the Bar Council of India was challenged contending that  the Committee did not properly appreciate the evidence and  that it was incorrect to hold that the 1007 receipt  dated  8.8.77  was  a  suspicious  document  merely because the account books were not produced. Dismissing the appeal, this Court,

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HELD  :  1.01.  Advocacy is not a craft but  a  calling-,  a profession  wherein  devotion to duty constitutes  the  hall mark.   Sincerity  of  performance and  the  earnestness  of endeavor are the two wings that will bare aloft the advocate to  the  tower  of  success.   Given  these  virtues   other qualifications  will follow of their own account.   This  is the  reason why legal profession is regarded to be  a  noble one.   But  it  cannot be allowed to become  a  sorriest  of trades.  Therefore. an exacting standard is what is expected of an advocate. [1010 C-D, 1011-C] 1.02.     The  members of the noble profession must  set  an example  of  conduct worthy of emulation.  If  any  of  them falls  from the high expectations, the punishment has to  be commensurate with the degree and gravity of the  misconduct. [1012-E] Sharasawood  on legal profession, Harry R. Blythe cited  if? 21 Green Bag 224, referred to. M.  Veerabhadra  Rao v. Tek Chand, [1984]  Supp.   SCC  571, referred to.[1011-C] 2.01.  The appellant had withdrawn the money from the  Court Receiver.   None  of  the correspondence  addressed  to  the respondent mentioned about the receipt dated 8th of  August, 1977.  The plea taken by the appellant based on the  receipt is  clearly false.  The statement of the appellant that  the account  books had been lost in transit cannot be  believed. Under  these circumstances this is a clear case wherein  the misappropriation   by   the   appellant   has   been   fully established. [1012-F] 2.02.  The appellant has been withdrawing the money over  14 years  and lit has illegally retained the amount.  Out of  a sum  of Rs. 50,379 which was admittedly withdrawn  from  the court  receiver  only  Rs.  18,000  was  paid  on  different occasions.  Still a sum of Rs. 22,379 is due. [1012-H, 1013- A] 2.03. In view of the established finding of misappropriation the proper punishment will be the name of the Advocate  must be struck off the rolls. [1013-B] 1008 2.04.  When  Section 38 of the Advocates  Act  says,  ’deems fit",  it must be construed as to meet the ends of  justice. The  respondent  should not be driven to a civil  court  for recovery  of  this amount even when the appellant  has  been found guilty.  Therefore, it is directed that there shall be a decree in favour of the respondent (complainant) for a sum of  Rs. 22,379 together with interest at 9% per  annum  from the date of the complaint till the date of payment 11013  F- G]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6120 of 1983. From   the  Judgment  and  Order  dated  25.4.1983  of   the Disciplinary Committee of the Bar Council of India in B.C.I. Tr.  Case No. 32 of 1982. Bharat Sangal for the Appellant. V.R.  Reddy,  Addl.  Solicitor General, T. Ratnam  and  D.N. Goburdhan for the Respondents. The Judgment of the Court was delivered. by MOHAN, J. This is a statutory appeal under Section 38 of the Advocates Act of 1961. The brief facts are as under:- The  respondent engaged the appellant as a counsel  in  suit No.  510  of 1964, this was in April, 1976.   The  suit  was ultimately  compromised on 14.6.77. It was ordered that  out

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of the total amount lying with the court receiver, a sum  of Rs. 64,000 shall be paid over to the plaintiff; the  balance was  to  be paid to the respondent and  possession  of  suit property  was  to be handed over to the  respondent  by  the court receiver. During the pendency of the suit the court receiver  inducted one Usman Ghani Haji Mohamed as a tenant.  He filed CS No. 7 of  1978 praying for an interim injunction  restraining  the court   receiver  from  handing  over  possession   to   the respondent.  That suit was continued. After  the  compromise  decree was  passed  on  14.6.77  the appellant  who  was  the  counsel  for  the  respondent  was requested  to  withdraw  the amount  lying  with  the  court receiver and hand over the same to the 1009 respondent.  For this purpose a, letter of authorisation  to enable the appellant to receive the amount was also  issued, Pursuant to the letter of authorisation and instructions,  a total  amount of Rs. 50,379 was withdrawn by  the  appellant from  the  court receiver.  Out of this, he  paid  only  Rs. 18,000 and the rest was not paid.  Therefore, the respondent preferred  a. complaint before the Bar Council of  India  on 9.1.81. The appellant was issued a notice by the Bar Council to  which he submitted his reply.  On consideration  of  his reply and hearing the arguments, the Disciplinary  Committee of the Bar Council of India, was of the view that the burden of  proving the fact that the respondent had paid a  sum  of Rs. 50,379 lay on the appellant.  Certain receipts  produced to  evidence  payment to the respondent were  not  accepted. The  plea of the appellant that the account books  had  been lost  was held to be untrue.  Ultimately the  appellant  was suspended for a period of two years and further directed  to pay  a  sum of Rs. 500 to the  complainant  (the  respondent herein).   It is against this order the present  appeal  has been preferred. Learned  counsel  for  the appellant  took  us  through  the impugned order and urged that the Committee had not properly appreciated the evidence especially the receipts which  were produced  by the appellant to evidence the payment.   It  is incorrect  to  hold  that the receipt  dated  8.8.77  was  a suspicious  document merely because the account  books  were not produced, it would not follow that the payments made  by the appellant could be disbelieved. We pointed out to the learned counsel for the appellant that the  order  under appeal is unexceptional and there  was  no case for interference.  We felt that the order of suspension of  two  years  was not commensurate  with  the  charges  of misappropriation.   Therefore, we directed the issue  notice to  the appellant which came to be accepted by  the  learned counsel  Mr.  Bharat Sangal.  Inspite of the fact  that  the appellant  has not chosen to appear, in order to  make  over the  payment of the amount voluntarily.  Therefore,  we  are left  with  no option then to decide the case  ourselves  on merits. The  Disciplinary Committee of the Bar Council on  a  proper appreciation  of  the  evidence  disbelieved  the  so-called receipts evidencing the payment.  It has come to the correct conclusion  that the receipt dated 8th of August,  1979  was got up on a blank signed paper.  Hence, the due 1010 execution  of  the  receipt  had  not  been  proved  by  the appellant.  Besides, the statement of the appellant that the account  books  had been lost in transit  had  been  rightly disbelieved.  Under these circumstances this is a clear case wherein the misappropriation by the appellant has been fully

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established.   Once  this  conclusion  is  arrived  at,  the question is what is the punishment to be imposed? Advocacy is not a craft but a calling; a profession  wherein devotion  to duty constitutes the hall mark.   Sincerity  of performance  and  the earnestness of endeavor  are  the  two wings  that  will bare aloft the advocate to  the  tower  of success.   Given  these virtues  other  qualifications  will follow  of their own account.  This is the reason why  legal profession is regarded to be a noble one.  But it cannot  be allowed  to become a sorriest of trades.  It will be  useful to quote what Sharaswood said of this profession:-               A lower, without the most sterling  integrity,               may shine for a while with meteoric  splendor;               but his light will soon go out in blackness of               darkness.   It is not in every man’s power  to               rise  to eminence by distinguished  abilities.                             It  is  not  in every  man’s  power,  with  fe w               exceptions,    to    attain    respectability,               competence, and usefulness.  The  temptations,               which  beset a young man in the outset of  his               professional  life,  especially if  he  is  in               absolute  dependence  upon  business  for  his               subsistence,  are very great.   The  strictest               principles  of  integrity and honour  are  his               only  safety.  Let him begin by swerving  from               truth  or fairness, in small  particulars,  he               will  find his character gone-whispered  away,               before he knows it.  Such a one may not indeed               be  irrecoverably lost; but it will  be  years               before  he  will  be able  to  regain  a  firm               foothold.   There  is no profession  in  which               moral character is so soon fixed as in that of               the  law;  there  is  none  in  which  it   is               subjected  to severer scrutiny by the  public.               It is well that it is so.  The things we  hold               dearest  on earth, out fortunes,  reputations,               domestic peace, the future of those dearest to               us,  nay,  our  liberty and  life  itself,  we               confide   to  the  integrity  of   our   legal               counselors  and  advocates.   Their  character               must be not only without a stain, but  without               suspicion.   From the very commencement  of  a               lawyer’s career, let him cultivate 1011               above   all  things,  truth,  simplicity   and               candor.   They  are  cardinal  virtues  of   a               lawyer.   Let him always seek to have a  clear               understanding  of  his object: be sure  it  is               honest  and right and then march  directly  to               it.  The covert, indirect and insidious way of               doing  anything, is always the wrong way.   It               gradually hardens the moral faculties, renders               obtuse  the perception of right and  wrong  in               human   actions,  weighs  everything  in   the               balance  of  worldly  policy,  and  ends  most               generally,  in the practical adoption  of  the               vile  maxim,  "that  the  end  sanctifies  the               means."               Therefore  an  exacting standard  is  what  is               expected of an advocate. This  court has taken the view in M. Veerabhadra Rao v.  Tek Chand,  [1984]  Supp.   SCC 571 as to how  in  such  a  case professional misconduct has to be dealt with.  In that case, the advocate committed forgery by attesting false affidavits

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which  was  held  to be a serious  misconduct.   This  court pointed  out  the duties of the members of the  bar  in  the following passage:-               "Legal profession is monopolistic in character               and this monopoly itself inheres certain  high               traditions  which its members are expected  to               upkeep and uphold.  Members of the  profession               claimed  that they are the leaders of  thought               and society.  In the words of Justice  Krishna               Iyer  in  Bar Council of  Maharashtra  v.  M.V               Dabholkar,  [19751 2 SCC 702 the role  of  the               members  of  the Bar can be  appreciated.   He               said at page 718:               The  bar is not a private guild, like that  of               ’barbers,  butchers  and   candlestick-makers’               but,  by bold contrast, a  public  institution               committed  to  public  justice  and  pro  bono               public  service.   The  grant  of  a  monopoly               licence  to  practice law is  based  on  three               assumptions:  (1) There is a  socially  useful               function  for the lawyer to perform,  (2)  The               lawyer  is  a  professional  person  who  will               perform that function, and (3) His performance               a,,  a  professional person  is  regulated  by               himself  and more formally, by the  profession               as  a  whole.  The central function  that  the               legal profession must perform is nothing  less               than the ad- 1012               ministration of justice (’The Practice of  Law               is  a Public Utility’-’The Lawyer, the  Public               and Professional Responsibility’ by F. Raymond               Marks  et al-Chicago American Bar  Foundation,               1972, pp. 288-289).  A glance at the functions               of  the Bar Council, and it will  be  apparent               that  a  rainbow  of  public  utility  duties,               including  legal aid to the poor, is  cast  on               these  bodies  in the national hope  that  the               members  of this monopoly will  serve  society               and  keep  to canons of  ethics  befitting  an               honorable  order.   If pathological  cases  of               member  misbehavior occur, the reputation  and               credibility  of  the Bar suffer a  mayhem  and               who,  but the Bar Council, is  more  concerned               with and sensitive to this potential disrepute               the few black sheep bring about?  The official               heads  of the Bar, i.e. the  Attorney  General               and  the Advocates-General too are  distressed               if  a lawyer ’stoops to conquer’ by resort  to               soliciting,   touting   and   other    corrupt               practices. If these are the high expectations of what is describes as a noble profession, its members must set an example of conduct worthy  of emulation.  If any of them falls from  that  high expectation, the punishment has to be commensurate with  the degree and gravity of the misconduct". Accordingly,   the  punishment  was  increased  to  one   of suspension for a period of five years, 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. In the case on hand admittedly the complainant  (respondent) does  not  know English.  It is equally  admitted  that  the appellant  had withdrawn the money from the Court  Receiver. None  of  the  correspondence addressed  to  the  respondent

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mentioned about the receipt dated 8th of August, 1977.   The plea taken by the appellant based on the receipt is  clearly false. The  appellant has been withdrawing the money over 14  years and  he has illegally retained the amount.  Out of a sum  of Rs.  50,379  which was admittedly withdrawn from  the  court receiver  only Rs. 18,000 was paid on  different  occasions. The said amount was also spread over and paid on 1013 different occasions.  On a direction of this court a sum  of Rs.  10,000  had been deposited by the appellant  which  has been  withdrawn  by the respondent as per  order  dated  3rd September, 1991.  Still a sum of Rs. 22,379 is due. In  view of the established finding of misappropriation,  we think the proper punishment will be the name of the Advocate must  be  struck off the rolls.  We order  accordingly.   In addition to this the question arises, whether we can  direct the  refund of the sum of Rs. 22,379 which still is  pending for the appellant.  Section 38 of the Advocates Act says  as follows.               "Appeal  to  the Supreme  Court:-  Any  person               aggrieved by an order made by the disciplinary               committee  of the Bar Council of  India  under               Section  36  or Section 37 [or  the  Attorney-               General  of India or the  Advocate-General  of               the State concerned, as the case may be],  may               within  sixty  days of the date on  which  the               order is communicated to him, prefer an appeal               to the Supreme Court and the Supreme Court may               pass  such order [including an  order  varying               the  punishment  awarded by  the  disciplinary               committee of the Bar Council of India] thereon               as it deems fit:               [Provided  that no order of  the  disciplinary               committee of the Bar Council of India shall be               varied   by  the  Supreme  Court  so   as   to               Prejudicially  affect  the  person   aggrieved               without giving him a reasonable opportunity of                             being heard]." "when  it says,’ deems fit, it must be construed as to  meet the  ends of justice.  We feel the respondent should not  be driven  to  a civil court for recovery of this  amount  even when  the appellant has been found guilty by his  own  peers which  we  have also confirmed.  Therefore, we  direct  that there  shall  be  a  decree  in  favour  of  the  respondent (complainant) for a sum of Rs. 22,379 together with interest at 9% per annum from the date of the complaint till the date of payment. The  appeal is dismissed- in the above terms with  costs  of the  respondent which is quantified at Rs. 3000  (Rs.  three thousand only). Before we part with the case we may usefully quote Harry  R. Blythe 1014 (cited    in 21 Green Bag, 224):-               "Great  God  the hour has come  when  we  must               clear  The legal fields from poison  and  from               fear; We must remould our standards-build them               higher,  And  clear  the  air  as  though   by               cleansing fire, Weed out the damning  traitors               to  the law, Restore her to her ancient  place               of awe." V.P.R.          Appeal dismissed. 1015

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