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Harish Chandra Tiwari v/s Baiju: Misappropriation Of Client’s Money

The respondent Baiju hired the appellant, an advocate registered with the Bar Council of Uttar Pradesh, for a land acquisition case in which Baiju sought compensation. This is an instance of theft of client funds. The attorney had asked for the money to be released, and upon the court's orders, he withdrew the specified sum, but neither returned it to the client nor let him know that the money had been received. Baiju filed a complaint with the State Bar Council as soon as he learned of this.

Later, on July 12, the appellant submitted a response to the complaint in which he acknowledged the representation made by the respondent and the cash withdrawal, but he said that he had returned the total to the customer after deducting his fees and costs. When the respondent's affidavit was being examined by the bar council's disciplinary committee. Both the substance and receiving any money from the appealing party's attorney were denied by the responder.

The Act of Procedures was moved to the Indian Bar Council under section 36-B. The disciplinary committee conducted the investigation and came to the conclusion that the application had been changed and that the oath from August 3, 1988 was a forgery. Based on this evidence, the committee compelled the suspension of the advocate's licence to practice law for a period of three years.

Under the careful eye of the Hon'ble Court and in accordance with Section 38 of the Advocates Act of 1961, an appeal was filed against this request. However, the Supreme Court organised the appeal and imposed the punishment of removing the appellant's name from the list of solicitors.

Primary Details Of The Case
Case No.: Appeal (C) 200 of 2000
Jurisdiction: Supreme Court of India
Case Filed On: August 3, 1988
Case Decided On: January 8, 2002
Judges: Justice K.T. Thomas, Justice S. N. Phukan
Legal Provisions Involved: Advocates Act, 1961, Section 35, 36B (2), 38

Brief Facts Of The Case
Appellant was selected as an Advocate with the Bar Council of U. P. in May 1982, and has been practicing from that point forward. Appellant was locked in by Baiju the respondent, in a land obtaining case in which the respondent was an inquirer for remuneration. The appellant applied for delivering the sum and according to the Courts request pulled out the sum on September 2, 1987 yet he didn't restore it to the customer to whom it was expected nor did he educate the customer about the receipt regarding the sum.

When the customer got the information on it and subsequent to get the sum composed by the Advocate, a complainant was lodged by him with the bar committee of state for reasonable disciplinary action against Appellant. On June 12, 1988, appellant documented an answer to the said accepting the representation of the respondent by him for pulling out cash, however he used the defense that he had restored the add up to the customer subsequent to deducting his charges and costs.

Notwithstanding this Appellant on 3 August 1988 recorded an affidavit before State Bar gathering bar board in which a trade-off between the appellant and respondent had been shown up was expressed. State Bar Disciplinary Advisory Group was checking the affidavit with the respondent.

The respondent denied the substance as well as denied having gotten any sum from the appellant Advocate. Under area 36-B the Act of procedures stood moved to the Bar Council of India. The disciplinary board of trustees led enquiry and reached the resolution that the affidavit dated August 3, 1988 was fabricated one and that application was created. On this conclusion the advisory group forced a discipline of suspending the Advocate from practice for duration of 3 years.

Issues Involved In The Case
  1. What ought to be the quantum of punishment to be imposed on the advocate?

Arguments Of The Parties
The plaintiff, who is an old, poor, vulnerable and an uneducated person, had assigned the appellant for his land acquisition case and later when he realized that his assets had been misappropriated by the appellant, he filled a case with the Bar Council of the State for initiating suitable disciplinary actions against him and also to make sure that he gets his due back.

The defendant Harish Chandra Tiwari, was enlisted as an advocate with the Bar Council of the State of U. P. had filed a reply to the said complaint before the Bar Council of the State. Although he admitted of withdrawing a certain amount of money, he used the defence of returning the money to the client after a deduction of his fees and expenses.

Then later an affidavit implying to be that of Baiju was filled by the defendant before the State Bar Council in which it is expressed that a trade-off had been shown up between him and his customer and that no further move should be made on the complaint made by the respondent and pleaded no liability, however when the Bar Council of the State confronted the plaintiff regarding the same, he flat out denied of having received any amount from the appellant-advocate.

Legal Aspects Involved In The Case
This case deals with the extent of punishment that the offending Advocate should be imposed. The advocate had filled his appeal under Section 38 of the Advocates Act, 1961 Court upholding the appeal of misconduct, asked the advocate why the punishment shall not be enacted to strike his name from the roll of the Bar Council of the State.

Further grievance and the procedures later stood move to the Bar Council of India by excellence of Section 36B (2) of the Act. Coming to the gravity of the punishment that is to be given to the guilty Advocate Section 38 of the Act empowers the Supreme Court to "pass such order including an order varying punishment awarded by the disciplinary committee of the Bar Council of India as it deems fit".

The only condition for varying the punishment awarded by the Bar Council of India is that if such variation is to prejudicially affect the appellant, he should be given a reasonable opportunity of being heard. Three unique punishments are acted in Section 35 of the Act: (1) censure the advocate (2) suspend the advocate from practice for such period as it might consider plausible (3) eliminate the name of the advocate from the State Roll of Advocates.

Judgement In Brief
In the current scenario, the misappropriation stayed unabated even after the disciplinary procedures initiated and it proceeded even till now as the deficient advocate didn't want to return even a solitary pie to the customer. The wrongdoing of the appellant-advocate turned out to be more disturbed when he resolved to fabricated an affirmation for the sake of his customer, which he created before the disciplinary committee to swindle his customer and to delude the disciplinary committee to accept that he and his customer had settled the contest by making a late instalment to his customer.

The court thinks holding such advocate on the move of the legal profession, it is risky to the calling. The circumstance for this situation along these lines warrants the discipline of expulsion of his name from the move of advocates. In deciding the discipline to be granted by the disciplinary committee on demonstrated wrongdoing for each situation, the committee ought to weigh different factors.

One of them is the intense need to scrub the legal profession from the individuals who are inclined to abusing the cash of the customers. Prevention is consequently a noticeable thought. This is especially vital when the legal profession has gotten swarmed as it is today, without there being any powerful sifting measure at the confirmation stage. Besides, to keep up the professional principles, it is important that no one should frame the feeling that once an individual is admitted to the legal profession, he would be safe to any corrective measures and is allowed to enjoy evil or wretched activities.

The solitary position which can successfully keep up the fidelity of the legal profession is the disciplinary committee of the Bar Council, both of the State or of India. The appropriate message which should go to all individuals from the legal profession is that they are generally being watched, in regards to their professional activities, through optics by the Bar Council of the State just as by the Bar Council of India and that their disciplinary committees would not submit any professional misconduct with escape nibble discipline.

Advocacy is an honourable profession and an Advocate is the most responsible, favored and intelligent individual of the general public and his act are good example for the general public, which are important to be controlled. Professional wrongdoing is the conduct beyond what is viewed as satisfactory or deserving of its enrolment by the overseeing body of a profession.

Professional offense alludes to shocking or disreputable direct not befitting an advocate. Section V of the Advocate Act, 1961, manages the lead of Advocates. It portrays arrangements identifying with discipline for professional and different wrongdoings. Section 35(1) of the Advocate Act, 1961, says, where on receipt of a grievance or in any case a State Bar Council has motivation to accept that any advocate on its roll has been liable of professional or other wrongdoing, it will allude the case for removal to it disciplinary committee.

For the most part legal profession isn't an exchange or business, it's a benevolent, respectable, and purified profession of the general public. Individuals having a place with this profession ought not to support trickery and debasement; however they need to endeavor to tie down justice to their customers.

The believability and notoriety of the profession relies on the way wherein the individuals from the profession act. It's an image of sound connection among Bar and Bench. This case is a classic example of the quantum of punishment that any advocate will get if he/she misappropriates the client's money, here the advocate fraudulently withdrew a certain amount of money from the client without informing him and further when a case was filed against him, he forged a document claiming that he had settled the matter with his client personally and no further action should be taken against him. The Court observing all these activities of the advocate forced the punishment of removal of the name of appellant from the roll of Advocates. m.jpg

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