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PETITIONER: BHATARAJU NAGESHW ARA RAO

       Vs.

RESPONDENT: THE HON’BLE JUDGES OF THE MADRASHIGH COURT AND OTHERS.

DATE OF JUDGMENT: 03/12/1954

BENCH: DAS, SUDHI RANJAN BENCH: DAS, SUDHI RANJAN MUKHERJEA, B.K. BOSE, VIVIAN

CITATION:  1955 AIR  223            1955 SCR  (1)1055

ACT: Procedure-Supreme  Court-Suspension  of  Advocate  by   High Court-Appeal to Supreme Court-Respondents to be impleaded in such  appeal-Indian Bar  Councils act (XXXVIII of 1926),  s. 12.

HEADNOTE: It  is wrong and inappropriate to implead the Judges of  the High  Court  as respondents in an appeal  preferred  to  the Supreme  Court  by  an Advocate against  whom  an  order  of suspension  was passed by the High Court under s. 12 of  the Indian  Bar Councils Act, 1926.  In such appeal  the  proper respondents  are the complainant if any, the Bar Council  or Secretary  thereof  and the Advocato-General  of  the  State concerned

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 146 of 1954. Appeal  by Special Leave from the Judgment and  Order  dated the  17th  day  of  December, 1952, of  the  High  Court  of Judicature at Madras in Referred Case No. 45 of 1952 arising out of the Report dated the 27th day of March, 1951, of  the Court of District Judge, Krishna in C.M.P. No. 123 of 1951. S.   P.  Sinha, (K.  R. Chaudhary and Sardar  Bahadur,  with him), for the appellant. R.   Ganapathy Iyer and P, G. Gokhale, for respondent No. 1. 1056 T.   Satyanarayana and P. G. Gokhale, for respondent No. 3. 1954.   December 3. The Judgment of the Court was  delivered by DAS J.-This is an appeal by special leave from an order made by a Special Bench of the High Court of Judicature at Madras under section 12 of the Indian Bar Councils Act (Act XXXVIII of  1926)  debarring  the appellant from  practising  as  an advocate for a period of five years. The material facts are these.  The appellant before us is an advocate ordinarily practising at Masaulipatam.  In Calendar Case No. I of 1949 on the file of the Additional First Class Magistrate’s Court at Masaulipatam nine persons were charged

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with the offence of conveying rice from the village to other villages  without  permits.  Accused Nos. 2 and 4  were  not represented by any advocate.  Accused Nos. 1, 3, 5, 6 and 8, all  cart-men, were defended by the appellant.  Accused  No. 7,  who initiated the proceedings out of which  the  present appeal  arises  and who is hereinafter referred to  as  "the petitioner", was defended by another advocate.  The case was disposed of on the 30th September, 1949.  Accused Nos. 1, 3, 5  and  6 were acquitted.  Accused No. 2 was  convicted  and sentenced  to a fine of Rs. 20 and in default of payment  of fine to undergo simple imprisonment for one month.   Accused No. 4 and the petitioner, accused No. 7, were also convicted and sentenced to pay a fine of Rs. 300/- each and in default of  payment of fine to undergo simple imprisonment  for  six months.   Accused No. 8 was sentenced to pay a fine  of  Rs. 100/-  and  in  default of payment of the  fine,  to  simple imprisonment for three months.  Accused No. 2 paid the  fine but  the  other three convicted persons did not.   The  four convicted   persons  including  the  petitioner   thereafter engaged  the appellant to prefer an appeal to  the  Sessions Court.   The appeal was presented before the Sessions  Court on the 8th October, 1949 and on the same day a petition  was filed on behalf of accused Nos. 4, 7 (petitioner) and 8  for an order staying the                             1057 realisation of the fine.  That application for stay came  up before the learned Sessions Judge on the 10th October,  1949 when notice was directed to issue to the Public  Prosecutor. On  the  11th  October, 1949 the learned  Judge  passed  the following order: "Suspended  pending disposal of this petition.  Call on  14. 10". On  the 14th October, 1949 the following further  order  was passed:- "Execution of sentences suspended till disposal of appeal". The appeal was posted for hearing on the 25th November, 1949 and  was  adjourned from time to time.  Eventually,  it  was finally  heard  on the 13th July, 1950 when the  appeal  was allowed  and  the  conviction  and  sentences  of  all   the appellants  were set aside.  On the 25th January,  1951  the petitioner caused a registered notice (Ex.  A/2) to be  sent to the appellant alleging that on the 11th October, 1949 the appellant had represented to him that the Court had  refused to suspend the sentences and that unless the amount of  fine was deposited the petitioner would be sent to jail.  It  was further  alleged that on such representation the  petitioner had  on that day paid to the appellant a sum of Rs. 300  for which the appellant had passed to the petitioner a chit (Ex. A/1)  under his own signature acknowledging receipt  of  the said  sum.   The chit (Ex.  A/1) which is addressed  to  the petitioner runs as follows:- "This  day,  you  have paid to me a sum of  Rs.  300  (three hundred rupees only)". It  is  signed  by the appellant  and  below  his  signature appears the date 11th October 1949 and the time 5-15 P.m. is also  mentioned below the signature.  The allegation in  the registered  notice  further  was  that  the  appellant   had concealed  from the petitioner the fact that the  order  for payment of fine had been suspended until the hearing of  the appeal and also that the appeal had eventually been allowed. The notice ended with a threat that if the appellant  failed to  return the sum of Rs. 300 together with interest  at  12 per cent. per annum from the 11th October 1949 up to date of 1058 payment the petitioner would be constrained, in addition  to

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such  other  proceedings as he may be advised  to  take  for recovery  of  the  said  amount,  to  complain  against  the appellant  and his unprofessional conduct to the High  Court and  the  Bar  Council.  This notice  was  received  by  the appellant  on  the 12th February 1951 and on the  next  day, 13th  February 1951, the appellant issued  three  registered notices  Exs.  A/3, A/4 and A/5 to the petitioner.   In  Ex. A/5  the appellant complained that the petitioner  had  been evading  payment  of the agreed fee of Rs. 150 and  on  firm demand having been made by the appellant on the 21st January 1951  for payment of such fee before the 25th  January  1951 the  petitioner had issued the registered notice  Ex.   A/2. In  Ex.   A/4  the appellant  alleged  that  the  petitioner instructed  the  appellant to file a stay  petition  as  the petitioner was unable to pay the fine and that the appellant filed  the  petition accordingly and obtained a  stay  order about  which  the  petitioner was  fully  aware.   In  those circumstances the allegations contained in the  petitioner’s notice  Ex.   A/2  were false  and  highly  defamatory.   He further  alleged  that the petitioner was  also  present  in Court on the 13th July 1950 when the appeal was allowed.  In the  circumstances, there was no need for the petitioner  to pay any money to the appellant for the purpose of paying the fine.  The appellant called upon the petitioner to  withdraw the   allegations   and  tender   an   unqualified   apology immediately.   In  Ex.  A/3 the appellant  stated  that  the petitioner had come to him on the 6th October 1949 to engage him  as his advocate for filing an appeal.  Seeing that  the appellant  was  then  pressed for money for  payment  of  an installment  of  a loan No. 616 to the Land  Mortgage  Bank, Pedana, the petitioner volunteered to arrange for a loan  of Rs. 300 for the appellant at Pedana and asked him to give  a chit  in his favour and to send the appellant’s  clerk  with the petitioner.  The petitioner did not, however, succeed in arranging  for any money but the chit Ex. A/I remained  with him.   There was a denial that there was  any  consideration for the chit Ex.  A/I.  On the 7th March 1951 the petitioner sent a reply generally 1059 denying  the  allegations  contained in  the  three  several notices sent by the appellant to the petitioner.  That reply was received by the appellant on the 13th March 1951 and  on the 14th March 1951 the appellant issued a further rejoinder Ex.   A/7 denying the allegations in the petitioner’s  reply and  stating that the statements in his three  notices  were true.   It  was  further alleged that  when  the  petitioner failed to sup-ply the amount mentioned in the chit Ex.   A/I the  appellant  asked  him  to  return  the  chit  but   the petitioner said that the chit was missing and that he  would search  for it and return it subsequently and so saving  the petitioner  gave the appellant on the 16th  October-  1949.a hand  letter  (Ex.  D/8) admitting that the  petitioner  was unable to supply the amount of Rs. 300 mentioned in the said chit as promised.  The petitioner did not send any reply  to this  letter  in spite of the fact that  the  appellant  had therein referred to a hand letter (Ex.  D/8) dated the  16th October  1949 which totally nullified the value of the  chit Ex.  A/I. The  petitioner then on the 27th March 1951 sent a  petition to  the High Court making a complaint against the  appellant of professional misconduct and praying that the Hon’ble High Court  might  be  pleased  to  order  an  enquiry  into  the allegations  made in his complaint and to take  such  action against the appellant as was necessary and expedient in  the circumstances  of  the case.  Along with the  petition  were

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submitted  a photograph of the chit Ex.  A/I and  copies  of the  registered  correspondence  that  passed  between   the petitioner  and  the appellant.  Even in this  petition  the petitioner  did not refer to the band letter (Ex.   D/8)  of the  16th October 1949 and did not specifically deny  having written the same.  Upon the presentation of the petition the appellant  submitted a written explanation before  the  High Court.  The High Court,, under section 10 of the Indian  Bar Councils  Act, referred the matter to the District Judge  to enquire  into  the allegations made in the petition  and  to submit A report. The District Judge issued a notice to the appellant  setting forth the following charges:- 136 1060 "1.  That you have suppressed fraudulently the order of  the Additional   Sessions   Judge,  Krishna   at   Masaulipatam, suspending  payment of fine of Rs. 300 and made in Crl.   M. P. No. 180 of 1949 in C. A. No. 82 of 1949 preferred against the  conviction and sentence passed by the Additional  First Class  Magistrate,  Bandar, in C.C. No. 1 of  1949,  on  his file,  against  the petitioner, who is the  seventh  accused therein; 2.   That  you,  having fraudulently  suppressed  the  above stated  fact,  have represented to the petitioner  that  the amount of fine of Rs. 300 had to be deposited into Court  on pain  of the petitioner being sent to jail and received  the said  sum  of Rs. 300 from him and passed a receipt  in  his favour for the same; 3.   That  you,  even though the above said C.A. No.  82  of 1949  on the file of the Additional Sessions Judge,  Krishna at Masaulipatam was allowed by the judgment dated 13-7-1950, having all knowledge about it did not inform the  petitioner that the said C.A. No. 82 of 1949 was disposed of, and later on  informed him that it was dismissed, and  the  conviction and sentence were confirmed; 4.   That you, therefore, wrongfully withheld the amount  of Rs. 300 belonging to the petitioner without depositing  into Court as represented by you and also without refunding it to the  petitioner  even after the said appeal was  allowed  in spite of repeated requests and demands made by him, and 5.   That  you  have  falsely set up a plea  of  not  having received  the  said sum of Rs.300 from the  petitioner,  for which you have passed a receipt in his favour, and later  on set  up that you wanted to borrow the said amount  from  him during  the subsistence of the relationship of advocate  and client, which (borrowing from a client) itself is prohibited by law". The  petitioner  examined himself (P.W.1)  and  his  brother Potharaju  (P.W.2)  as  his  witnesses  in  support  of  the allegations in the petition.  The appellant examined himself (R.    W.  1)  and  his  clerk  D.  Venkatarangam   (R.W.2), Kameswararao, the secretary of the Vadlamannadu Co-operative Land Mortgage Bank at 1061 Pedana  (R.W.3) and Venktadri, clerk of an advocate  (R.W.4) in support of his defence. On  a  consideration  of the  entire  evidence  the  learned District  Judge found that the testimony of  the  petitioner and  his  brother was not credible and acceptable  and  that there was no reason to reject the testimony of the appellant and  his  clerk  and  other witnesses and  he  came  to  the conclusion  that it bad not been satisfactorily proved  that the  appellant  was  guilty of any  of  the  charges  framed against him.  The District Judge sent a report accordingly.

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The  matter was placed before a Special Bench of the  Madras High Court.  The Special Bench had no hesitation in agreeing with  the findings of the learned District Judge on  charges 1,  2  and 3. In their opinion much reliance  could  not  be placed  on the veracity of the complainant himself The  High Court,  in agreement with the learned District  Judge,  held that  the  appellant  was  not guilty  of  the  first  three charges.  Coming to the last two charges the learned  Judges were struck by several facts, namely, (i) the passing of two receipts  for two sums of money each of Rs. 300  which  were identical  with  the amount of fine imposed on each  of  the accused  Nos.  4  and 7 (petitioner) and (ii)  the  date  of payment,  namely,  the 11th October 1949 on which  date  the petitioner  and the fourth accused had to deposit the  fine. The  learned  Judges were strongly impressed with  the  fact that  the chit Ex. A/I had been allowed to remain  with  the petitioner.  The High Court also noted that if the  arrange- ment  was  that  the appellants clerk would  pass  a  formal stamped  receipt  after  getting  the  money  there  was  no necessity  to  issue an informal receipt in  favour  of  the petitioner  in advance.  The learned Judges further  pointed out  that  in  none  of the three  notices  dated  the  13th February  1951 any reference had been made by the  appellant to the hand letter (Ex.  D/8) ’dated the 16th October  1949. The  High Court concluded that the failure to  mention  this hand  letter  in the earliest reply by  the  appellant  cast considerable  doubt on the genuineness of the  document  and consequently the Court could not act on the basis that it 1062 contained  a  true  statement  of  facts  admitted  by   the petitioner.   The High Court also referred to several  other minor points suggesting the improbability of the appellant’s story.  The High Court held that the appellant had  received a  sum  of Rs. 300 from the petitioner on the  11th  October 1949 as acknowledged by the appellant in the chit Ex.  A/ 1. The  High Court accordingly held that charges Nos. 4  and  5 had  been  proved against the appellant  and  passed  orders against  the appellant debarring him from practicing  as  an advocate  for five years.  The appellant has  now  preferred this  appeal after having obtained special leave  from  this Court. We have been taken through the evidence by learned advocates appearing on both sides.  It appears to us that while  there are  some facts which cast some doubt on the version of  the appellant   there  are  other  material   facts   completely overlooked  by  the  High Court which  nevertheless  have  a material  bearing  on  the truthfulness or  falsity  of  the complainant’s story.  It is true that the appellant did  not refer  to  the hand letter (Ex.  D/8) in  his  replies  Exs. A/3,  A/4 and A/5 to the petitioner’s letter Ex.   A/2,  but the  appellant did refer to it in his rejoinder Ex.  A/7  of the 14th March 1951.  It is significant that the  petitioner did  not send any reply to this last rejoinder and deny  the allegations definitely made by the appellant.  It is further significant that the petitioner did not deny the genuineness of  the band letter Ex.  D/8 even in his petition.   In  his evidence  the  petitioner admits the signature on  the  hand letter to be his own but states that it must have been  made out  by  the  appellant on a blank paper  on  which  he  had induced   the  petitioner  to  put  his  signature  on   the representation that the same would be used as a Vakalatnama. It  is  very  difficult to accept  this  story  because  the petitioner  knew  from his experience as an accused  in  the trial  Court that no Vakalatnama was required in a  criminal case.  Nor has any of the other appellants been produced  as

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a witness to say that any such signature was taken from  any of them on blank paper.  Further, the petitioner was present in Court on the 11th October when 1063 the interim stay order was made.  Ex.  A/1 bears the hour 5- 15  P.m.  below the signature of the appellant  which  shows that  chit  came into existence after court  hours.   It  is utterly  impossible  to believe that  the  petitioner  would deposit  Rs. 300 with his new advocate in spite of the  fact that  in the earlier part of the day the interim  order  for stay had been made.  It is also significant that accused No. 4 who is also alleged to have paid Rs. 300 to the  appellant for  a similar purpose has not been called as a  witness  to corroborate the evidence of the petitioner and his  brother. The question of the ability of the petitioner to advance Rs. 300 is one of great importance in this case.  The petitioner is  not a man of means.  He alleged that he had  raised  the sum  of  Rs.  300 by selling some  miscellaneous  gold.   No goldsmith or shrove was called to produce his books and give evidence in corroboration of the petitioner and his brother. Indeed,  the petitioner could not even mention the  name  of any  shroff to whom he is supposed to have sold his gold.The High Court completely overlooked this aspect of  the  matter and in the absence of satisfactory evidence showing that the petitioner  was in a position to pay the sum of Rs.  300  it will be extremely risky to hold that the fact of payment  of Rs.  300 by the petitioner to the appellant has been  proved only  because there are some weaknesses in  the  appellant’s story.  The appellant’s story that he required Rs. 600 to be paid to the Land Mortgage Bank is supported by the secretary of  the  Land  Mortgage Bank (R.W. 3) who  stated  that  the appellant  bad informed him that he had raised Rs. 300  only and that a person who had promised to arrange for a loan  of Rs. 300 had failed to do so and that the appellant had asked his advice as to what he was to do.  The secretary then told the appellant that as he had made an excess payment in  1948 towards  and on account of the principal it would be  enough if  he  paid the amount of Rs. 377/9/- which  the  appellant bad.   It is significant that the Bank’s records  show  that the appellant had paid only Rs. 377/9/- into the Bank on the 4th November, 1949.  If the petitioner had paid 1064 Rs. 300 to the appellant there would have been no reason why the  appellant  should  not have paid  the  entire  Rs.  600 towards  his  liability to the Bank.  The  learned  District Judge  who  had the advantage of seeing  the  witnesses  and hearing  the  evidence  disbelieved  the  evidence  of   the petitioner  and his brother and we see no compelling  reason to  take  a  different  view  of  it.   On  the  facts   and circumstances  of  this case we think that charges 4  and  5 have not been brought home to the appellant or, at any rate, the  appellant is entitled to the benefit of the doubt.   In the circumstances, we hold that the order passed by the High Court  should be reversed and we direct that  the  complaint against the appellant do stand dismissed as not proved. Before  parting  with this appeal we desire to say  that  it appears to us that it was wholly wrong and inappropriate for the  appellant  to have made the Honourable  Judges  of  the Madras  High Court respondents to this appeal.   It  appears that   in  some  cases  involving  contempt  of  Court   the Honourable  Judges  have  been  made  parties.   It  is  not necessary for us to express any opinion on this occasion  as to the propriety of that procedure in contempt cases but  we are clearly of the opinion that in an appeal arising out  of a  proceeding  under the Bar Councils  Act  the  appropriate

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parties  should be the advocate concerned, the  complainant, if  any,  the Bar Council or the secretary thereof  and  the Advocate-General of the State concerned to whom notices have to be issued under section 12(3) of the Indian Bar  Councils Act. Appeal allowed.                             1065