Topic: J.S. Jadhav vs Mustafa Haji Mohamed Yusuf - Misappropriation of amount paid

J.S. Jadhav vs Mustafa Haji Mohamed Yusuf
Equivalent citations: 1993 AIR 1535, 1993 SCR (2)1006 - 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 - Date of Judgment: 07/04/1993

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

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receipt     dated    8.8.77    was a    suspicious document merely because the account books were not produced. Dismissing the appeal, this Court,

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]

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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 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 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

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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 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-

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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 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

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(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.