Deciding Authority: The Supreme Court of India
Name of the Judges: K.T. THOMAS & S.N. PHUKAN
Date of Judgement: 08/01/2002
Facts: Appellant Harish Chandra Tiwari was enrolled as an advocate with the Bar Council of the State of U.P. in May, 1982 and has been practising since then, mainly in the Courts at Lakhimpur Kheri district in U.P. Respondent Baiju engaged the delinquent advocate in a land acquisition case in which the respondent was a claimant for compensation. The disciplinary committee has described the respondent as “an old, helpless, poor illiterate person”. Compensation of Rs. 8,118/- for the acquisition of the land of the said Baiju was deposited by the State in the Court. Appellant applied for releasing the amount and as per orders of the Court, he withdrew the said amount on 2.9.1987. But he did not return it to the client to whom it was payable nor did he inform the client about the receipt of the amount. Long thereafter, when the client came to know of it and after failing to “get the amount returned by the advocate, a complaint was lodged by him with the Bar Council of the State for initiating suitable disciplinary action against the appellant. On 12.7.1988, appellant filed a reply to the said complaint before the Bar Council of the State. He admitted having been engaged by the respondent as his Counsel in the aforesaid land acquisition case, he also admitted that he had withdrawn a sum of Rs. 8,118/- from the Court. But he adopted a defence that he had returned the amount to the client after deducting his fees and expenses. On 3.8.1988, an affidavit purporting to be that of the respondent Baiju was filed by the appellant before the State Bar Council in which it is stated that a compromise had been arrived at between him and his client and that no further action need to be taken on the complaint filed by the respondent. The disciplinary committee of the State Bar Council was not prepared to act on the said affidavit without verifying it from the client concerned. Hence, they summoned the respondent and confronted him with the said affidavit. The respondent totally disowned the said affidavit, repudiated the alleged compromise between him and the appellant and denied having received any amount from the appellant-advocate. The complaint and the proceedings later stood transferred to the Bar Council of India by virtue of Section 36B(2) of the Advocates Act, 1961 (for short ‘the Act’). The disciplinary committee after conducting the inquiry, came to the conclusion that the affidavit dated 3.8.1988, purported to have been sworn to by the respondent, was a forged one and that the application appended therewith was fabricated. The delinquent advocate filed this appeal under Section 38 of the Act.
Judgement: In this appeal, appellant first pleaded that he is not liable to be punished at all and then contended alternatively that he has given the money to the client subsequently. But the factual position is so strong against the appellant that he could not show a single circumstance to accept his defence that he had paid the amount to the client. The finding of the disciplinary committee that the delinquent advocate “has withdrawn the compensation of Rs. 8,118/- and has not paid it to the complainant for the last more than 11 years and is thus, guilty of wrong professional conduct and has maligned the reputation of the noble profession and has committed breach of trust which an advocate enjoys”, does not require any interference in this appeal.
The main purpose of this appeal is to decide as to the quantum of punishment to be awarded to the delinquent appellant-advocate. Three different punishments are envisaged in Section 35 of the Act : (1) reprimand the advocate; (2) suspend the advocate from practice for such period as it may deem fit; (3) remove the name of the advocate from the State roll of advocates.
In determining the punishment to be awarded by the disciplinary committee on proved misconduct in each case, the committee should weigh various factors. One of them is the acute need to cleanse the legal profession from those who are prone to misappropriating the money of the clients. Deterrence is thus a prominent consideration. This is particularly necessary at a time when the legal profession has become crowded as it is today, without there being any effective filtering process at the admission stage. Secondly, to keep up the professional standards, it is necessary that nobody should form the impression that once a person is admitted to the legal profession, he would be immune to any punitive measures and is free to indulge in nefarious or detestable activities.
In the present case, the misappropriation remained unabated even after the disciplinary proceedings commenced and it continued even till now as the delinquent advocate did not care to return even a single pie to the client. The misconduct of the appellant-advocate became more aggravated when he determined to forge an affidavit in the name of his client, which he produced before the disciplinary committee in order to defraud his client and to deceive the disciplinary committee to believe that he and his client had settled the dispute by making a late payment to his client.
Learned Counsel for the appellant cited two decisions of this Court in which the punishment awarded has not been escalated to removal from the roll. One is Prahlad Saran Gupta v. Bar Council of India and Anr., JT 1997 (3) SC 186: 1997 (3) SCC 585. In that case, the finding against the delinquent advocate was that he retained a sum of Rs. 1500/- without sufficient justification from 4.4.1978 till 2.5.1978 and he deposited the amount in the Court on the latter date, without disbursing the same to his client. The said conduct was found by this Court as “not in consonance with the standards of professional ethics expected from a senior member of the profession”. On the said fact situation, this Court imposed a punishment of reprimanding the advocate concerned. The other case cited by the learned Counsel is B. R. Mahalkari v. Y.B. Zurange, JT 1998 (9) SC 385 : 1997 (11) SCC 109. The findings in that case is that the advocate retained the amount of Rs. 1,176/-, though before the commencement of the disciplinary proceedings he sent the said amount to the client. After holding that the advocate is guilty of misconduct, this Court upheld the punishment of suspension from practice for a period of three years.
The facts in the aforecited decisions would speak for themselves and the distinction from the facts of this case is so glaring that the misconduct of the appellant in the present case is of a far graver dimension. Hence the said two decisions are not of any help to the appellant for mitigation of the quantum of punishment.
Decision:
The appeal is disposed of by imposing the punishment of removal of the name of the appellant from the roll of the advocates.
Sudipta Bhowmick, 4th Year, School of Law, KIIT University
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