50 Selected Opinions of the Bar Council of India

50 SELECTED OPINIONS OFTHE DISCIPLINARY COMMITTEES OFTHE BAR

COUNCIL OF INDIA

CASES OF PROFESSIONAL MISCONDUCT DECIDED BYTHEDISCIPLINARY

COMMITTEES OF THE BAR COUNCIL OF INDIA

S. No Case
1. DC Appeal No. 16/1993 25(1) 1998 IBR 135 1
2. DC Appeal No. 8/1994 25(1) 1998 IBR 153 4
3. D.C. Appeal No. 20/1994 24(3&4) 1997 IBR193 7
4. BCI Transfer Case No. 76/1995 24(3&4) 1997 IBR 201 10
5. BCI Transfer Case No. 104/1990 23(1) 1996 IBR 155 12
6. BCI Transfer Case No. 52/1989 21(1) 1994 IBR 187 13
7. BCI Transfer Case No. 14/1980 16(2) 1989 IBR 264 15
8. DC Appeal No. 35/1987 16(3&4) 1989 IBR 536 18
9. DC Appeal No. 40/1986 14(3) 1987 IBR 488 21
10. DC Appeal No. 7/1981 14(4) 1987 IBR 735 23
11. DC Appeal No. 19/1993* 23(1) 1996 IBR 152 25
12. DC Appeal No. 24/1987* 16(2) 1989 IBR 273 27

13. DC Appeal No. 3/1988* 16(2) 1989 IBR 285 30

WITHHOLDING OF DOCUMENTS
14. DC Appeal No 10/1986 & 10A/1986 14(3) 1987 IBR 491 32

15. DC Appeal No. 12/1986 14(4) 1987 IBR 745 34

NEGLIGENCE IN CONDUCTING CASE

FAILURE TO RENDER ACCOUNTS, MISAPPROPRIATION OF
CLIENT’S
MONEY,BREACH OF TRUST, MISUSE OF CLIENT’S
CONFIDENCE
16. DC Appeal No. 13/1991 24(1&2) 1997 IBR 271 36

17. DC Appeal No. 24/1990 23(1) 1996 IBR 135 38

18. DC Appeal No. 41/1987 16(1) 1989 IBR 122 40
19. DC Appeal No. 21/1985 15(3&4) 1988 IBR 359 42
20. BCI Transfer Case No. 43/1982 15(3&4) 1988 IBR 364 44
21. DC Appeal No. 28/1986 15(3&4) 1988 IBR 374 45

22. DC Appeal No. 38/1984 14(2) 1987 IBR 319 47

23. DC Appeal No. 7/1986 14(3) 1987 IBR 496 49
MISLEADING CLIENT, CHEATING THE CLIENT, MAKING
FALSE ASSURANCES
24. BCI Transfer Case No. 127/1988 19(3&4) 1992 IBR 125 52

25. BCI Transfer Case No. 27/1988 16(3&4) 1989 IBR 542 54
26. BCI Transfer Case No. 24/1986 16(3&4) 1989 IBR 563 57
27. DC Appeal No. 23/1987 15(1&2) 1988 IBR 187 60
28. DC Appeal No. 34/1985 14(4) 1987 IBR 757 62
THREATENING CLIENT, BLACKMAILING THE CLIENT
29. BCI Transfer Case No. 29/1981 16(2) 1989 IBR 245 64
DISREGARD OF CLIENT’S INTEREST
30. DC Appeal No. 33/1986 15(3&4) 1988 IBR 354 68
WITHDRAWAL FROM CASE WITHOUT SUFFICIENT
REASON AND SUFFICIENT NOTICE

31. BCI Transfer Case No. 16/1986 15(1&2) 1988 IBR 197 70
REPRESENTING THE OTHER SIDE, CHANGING OF SIDE,
APPEARING FOR BOTH SIDES
32. BCI Transfer Case No. 39/1987 19(3&4) 1992 IBR 147 72
33. BCI Transfer Case No. 39/1989 19(3&4) 1992 IBR 149 74
34. BCI Transfer Case No. 52/1988 16(1) 1989 IBR 110 76
35. DC Appeal No. 6/1981 15(1&2) 1988 IBR 193 78
36. DC Appeal No. 64/1974 14(2) 1987 IBR 314 79
MISGUIDING COURT
37. BCI Transfer Case No. 40/1991 25(1) 1998 IBR 139 81
38. BCI Transfer Case No. 6/1984 16(3&4) 1989 IBR 550 83
INTERFERING WITH THE DECISION BY INFLUENCING THE
JUDGE

39. DC Appeal No. 46/1986 16(2) 1989 IBR 280 85

40. BCI Transfer Case No. 2/1980 16(2) 1989 IBR 289 87
MAKING SCANDALOUS ALLEGATIONS AGAINST THE
PRESIDING OFFICER
41. BCI Transfer Case No. 101/1988 16(3&4) 1989 IBR 524 89
42. DC Appeal No. 41/1986 15(1&2) 1988 IBR 200 92
CONDUCT UNBECOMING OF AN ADVOCATE, LOWERING
DIGNITY OF PROFESSION
43. BCI Transfer Case No. 16/1988 16(1) 1989 IBR 99 93
44. DC Appeal No. 14/1988 16(2) 1989 IBR 258 95
45. DC Appeal No. 10/1988 16(3&4) 1989 IBR 572 98
ACTING IN A CASE IN WHICH THE ADVOCATE HAS
PECUNIARY INTEREST,SHARING PROFITS OF CASE AND
LENDING MONEY TO THE CLIENT
46. DC Appeal No. 23/1988 16(3&4) 1989 IBR 532 100
CONVICTION FOR OFFENCE INVOLVING MORAL
TURPITUDE
47. BCI Transfer Case No. 10/1986 16(3&4) 1989 IBR 520 102
48. DC Appeal No. 45/1974 15(1&2) 1988 IBR 182 104
FORGERY
49. BCI Transfer Case No. 2/1988 16(1) 1989 IBR 102 106
50. BCI Transfer Case No. 57/1987 14(4) 1987 IBR 753 108
OTHER MISCONDUCT (MAKING ALLEGATIONS AGAINST
VARIOUS AUTHORITIES)
51. DC Appeal No. 43/1996 24(3&4) 1997 IBR 207 109
CASE 1(Negligence in Conducting Case)

D.C. Appeal No. 16/1993

A vs. R25(1) 1998 IBR135

Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members)
Judgement Dated 5th October, 1996

FACTS OF THE CASE

Complainant’s Case:

Complainant had executed a registered sale deed with an option to repurchase a house
property situate in Deeravalli village in favour of one Lanka SambaShiva Rao. However,
the Complainant continued to be in possession and enjoyment of the property. Vendor
made attempts to take the possession of the property forcibly in collusion with the police
and Complainant filed a suit for injunction against him through his Advocate, i.e., the
Respondent at OS No. 87/85. Vendors also filed a counter suit at OS No. 89/85 against the
Complainant in the Sub-Court of Gudivada for foreclosure of the mortgage, claiming the
above mentioned sale deed as mortgage deed. This was opposed by the Complainant in his
WrittenStatement wherein he claimed that the document is sham and nominal.

In the mean while in OS No. 87/85 Court ordered for payment of deficit Court fee
under sec. 24 (b) of the Andhra Pradesh Court Fees and Suits Valuation Act. The
Complainant alleges that the Respondent was negligent in conducting the case and did not
inform the Complainant regarding any progress of the case as a result of which the order of
the Court for payment of deficit Court fee could not be complied with. This resulted
in rejection of the plaint. Even this was not intimated to the Complainant by
the Respondent. The Complainant further alleges that there was no negligence on his
partand he regularly kept in touch with the Respondent-Advocate and asked him about
the stages of both the suits. However, he did not get true reply from the Respondent.
On 23.9.1991 he came to know from some other persons that OS No. 87/85 was
dismissed long back, on 15.4.1986, and that OS No. 89/85 was allowed. On verification,
the Complainant found the rumours true. On 24.9.1991 the Complainant met Respondent-
Advocate and requested him to return the papers of both suits with a “no objection”
toengage another Advocate.

OS No. 89/85 was posted on 27.9.91 for the examination of PW3. On 25.9.1991, the
Respondent-Advocate returned the Complainant’s papers in OS No. 89/85 only, and
promised to take adjournment on 27.9.1991. Accordingly, on 27.9.1991 he
obtained adjournment of OS No. 89/85 to 4.10.91. However, later the case was again
advancedand the evidence of PW3 was recorded. Against his own promise, Respondent-
Advocate cross-examined PW3.

Respondent’s Case:

Respondent-Advocate denied the averments of the complaint and blamed the Complainant
for non-payment of Court fee in OS No. 87/89.

PROCEEDINGS

The D.C. of S.B.C. framed as many as eight issues and heard the parties on 22.6.1995
assisted by their counsels. Both the parties also submitted their written arguments.
Respondent’s daughter who had joined the profession recently also filed a mercy
application.

The D.C. of S.B.C. after going through the records passed a speaking order with the
following observations:

1. When the Complainant sought “no objection” to change Advocates, the

Respondent should have given his no objection and retire from the case without
any hesitation.

2. It is unbecoming of an Advocate to keep his client in darkness about the

progress of the case. The Respondent did the same thing in this case. Therefore,
he could not make good deficit of Court fee and consequently the plaint in OS
No. 87/85 was rejected. The evidence of RW1 and RW2 in respect of the
financial capacity of the Complainant is not acceptable. Allegation that OS No.
87/85 was dismissed on 15.4.86 due to negligence of Respondent stands
established.

3. Respondent-Advocate has cross-examined PW3 in OS No. 89/95 without the

consent and knowledge of the Complainant, especially when Complainant had
lost confidence in the Respondent. It is accepted that the Respondent promised
to obtain adjournment in OS No. 89/85, but cross-examined PW3 therein in the
absence of the Complainant.

4. Respondent has admitted that he refused to file delay condonation application

in application for restoration of OS No. 87/85, which is unbecoming of him.

5. Evidence of the Complainant to the effect that Respondent-Advocate did not

return the records in OS No. 87/85 to the Complainant is accepted.
On the above grounds the D.C. of S.B.C. by its order dated 14.3.1993 debarred the
Respondent-Advocate from practice for a period of One year.

ORDER

D.C. of B.C.I. found no reason to differ with the order and reasons of the D.C. of S.B.C. In
the circumstances, the order passed by the S.B.C. was affirmed and the appellant
was directed to undergo the punishment imposed by the D.C. of S.B.C. The stay order of
the S.B.C. was vacated.
CASE 2: (Negligence in Conducting Case)

A vs. R25(1) 1998 IBR153

D.C. Appeal No. 8/1994

Shri D.V. Patil (Chairman) and Shri S.C. Chawla and Shri S.G. Nair (Members)

Judgement Dated 8th December, 1996

FACTS OF THE CASE

Complainant’s Case:

In 1981 the Complainant paid in all Rs. 70,000 to Rao & Raju Builders Pvt. Ltd.,
Hyderabad, for the construction of a 3 bed room house in the plotallotted to him. But the
builders failed to perform their obligation under the contract. Complainant met Mr. Rao,
Managing Director of the concern to settle the matter amicably. Mr. Rao referred the
Complainant to the Respondent-Advocate to seek his advice. Complainant met the
Respondent in March 1984 and the Respondent advised the Complainant to file a suit
against the builders for recovery of money. Complainant
engaged the Respondent by paying Rs. 5,000 and signed the plaint.

Later the Complainant requested his brother-in-law who was also his General Power
of Attorney-holder to pursue the matter. Complainant’s brother-in-law met the
Respondent in 1991 and enquired about the progress. Respondent told him that suit was
still in registration stage and was yet to be numbered.

Complainant sent a registered letter dated 4.9.91 to the Respondent along with a D.D. for
Rs. 400 towards the expenses and requested him to expedite the matter. As there was no
reply to this letter, he sent another registered letter dated 18.12.1991. Even for this letter,
he did not receive any reply. Therefore, the Respondent has committed professional
misconduct as he had failed to file the suit in spite of having received the amount of fee.

Respondent’s Case:

Respondent in his reply admitted the fact that Complainant had approached him seeking
his advice. But he contended that he could not take up Complainant’s case as Mr. Rao one
of the directors of Rao & Raju Builders Pvt. Ltd. hadalready approached him. He only gave
a friendly advice for instituting a suit against the concern. The Respondent denied all other
facts mentioned in the complaint. As to the D.D. of Rs. 400, the Respondent contended that
he had returned the same on 19.9.91. Therefore, he had not committed any professional
misconduct.

PROCEEDINGS

Based on the pleadings of both sides, the following issues were framed:

1. Whether the Complainant has paid Rs. 5000 to the Respondent for filing the suit against
Rao & Raju Builders Pvt. Ltd., Hyderabad?

2. Whether the Complainant sent Rs. 400 through D.D. to the Respondent for
taking necessary steps in the matter entrusted to him?

3. Whether the Respondent took any steps in respect of the case entrusted by the
complaint to him?

4. Whether the Respondent is guilty of any professional misconduct?

5. What relief?

Appellant argued that there was contradiction in the evidence of Complainant and his
witnesses. Respondent in his evidence admitted that there was no written communication
between him and the Respondent-Advocate after filing the suit until 4.9.1991. He also
admitted that there was no proof for the payment of Rs. 5000.
Similarly, Complainant’s witnesses have not supported the assertion of the Complainant in
respect of the payment and signing of the plaint. Respondent further argued that the suit
was filed by one Shri BhagawanDass Sharma, Advocate, on 7.6.1984 and he was the
Complainant’s Advocate in that suit. Respondent exhibited his letter dated
19.9.91 returning the D.D. for Rs. 400 to the Complainant as he was not concerned in the
case.
Hence, he claimed that the impugned order be set aside on following grounds:

1. As per the Complainant’s own case he did not care to know the fate of a suit
purported to if filed by him in the year 1983, till 1991. Therefore, he was not
interested in the matter.

2. There are discrepancies and contradictions in the evidence led by the Complainant.

3. There is no proof for the Complainant having paid Rs. 5,000 to the Respondent-
Advocate.
4. On above grounds, the Complainant has miserably failed to prove misconduct on the
part of the Respondent-Advocate.

Complainant’s Advocate argued that he had produced enough evidence, oral as well
as documentary to prove his case against the Respondent. He argued that
Complainant’s witnesses have corroborated the evidence of the Complainant on the fact of
Complainant engaging Respondent as his Advocate by paying Rs. 5000. Ex.R1, a letter
dated19.9.1991 sent by Respondent to Complainant was never received by the
Complainant.
He also expressed doubt as to whether an Advocate will reply a registered letter by
an ordinary letter, especially when he was returning a D.D. Hence, as there was no proof
of having the letter posted, Ex.R1 was only a concocted document. Complainant’s case
was supported by an independent witness whose evidence was of great weight and could
not be easily brushed aside.

After careful consideration of the arguments and evidence of both sides, D.C. of B.C.I. was
of the opinion that the Respondent was engaged by the Complainant as his counsel by
paying Rs. 5000 towards his fees. In spite of having received the fees, the Respondent did
not file the suit. D.C. & B.C.I. did not accept the plea of Respondent that he had sent a
letter dated 19.9.1991 to the Complainant and returned the DD for Rs. 400, as therewas no
proof for that. Hence the Respondent was found guilty of professional misconduct and the
D.C. of the B.C.I. found no reason to differ with the finding of S.B.C.

ORDER

In view of the above reasons the D.C. of the B.C.I. dismissed the appeal and upheld
the order of the S.B.C. suspending the Respondent for a period of 6 months from practice.
CASE 3
(Validity of Order of S.B.C. Passed after the Statutory Period of One Year)

A vs. R24(3&4) 1997 IBR193

D.C. Appeal No. 20/1994

Shri G.D. Bhatt (Chairman) and Shri J.B. Pardiwala and Shri V.R. Sharma (Members)

Judgement Dated 1st June, 1996

FACTS OF THE CASE

Complainant’s Case:

One Subhash Jain, brother of the Complainant was convicted under sec. 302, I.P.C., and
was sentenced to undergo life imprisonment. He applied under sec. 2 of the Madhya
Pradesh Prisoners Release on Probation Act, 1954 before the Indore Bench of Madhya
Pradesh High Court at M.P. No. 14/92. The same came to be dismissed by the High Court
on 8.1.1992. Against this Order of the High Court in M.P. No. 14/92, the Complainant’s
brother wanted to prefer SLP and the Complainant engaged the Respondent for the said
purpose. Respondent-Advocate demanded Rs.15,000 towards his professional fees and
expenses. Complainant promptly paid the same to the Respondent along with case
papers. After some time, the Complainant enquired with the Respondent about the progress
in the case. Respondent informed that he had filed S.L.P. and show cause notices had
been issued by the Hon’ble S.C. After persistent demand from the Complainant,
Respondent sent a copy of S.L.P. and the alleged order of the S.C. The Complainant was
suspicious about the genuineness of these documents and on further probe into the matter
found that they were all forged documents and no S.L.P. had in fact been filed by
the Respondent–Advocate.

Hence, the Respondent has committed misconduct by not filing Special Leave Petition
in spite of payment of fees as demanded by him.

PROCEEDINGS

D.C. of S.B.C. framed the following issues:

1. Whether the Respondent-Advocate had been engaged by the Complainant for filing of a
S.L.P. before the Supreme Court against the order in MP No. 14/92 dated 8.1.1992, and for
this purpose had he paid a sum of Rs. 15,000 to the Respondent-Advocate towards the
fees?
2. Whether the alleged copy of the S.L.P. and copy of Supreme Court order was sent by the
Respondent to the Complainant?

3. Whether the copy of the S.L.P. order and petition sent by the Respondent-Advocate was
not genuine and fake one?

4. Whether on proof of allegation, the Respondent-Advocate is guilty of professional

misconduct?

After going through the evidence, D.C. of S.B.C. found Respondent guilty of
professional misconduct and passed an order dated 2.4.1994 suspending his sanad for a
period of 7 years, and also ordered that if the Respondent refunds the amount of Rs. 15,000
with interest at bank rate to the Complainant his sanad would be suspended for 5 years
only.

In the appeal, Respondent’s case was based on a preliminary contention that the order of
the S.B.C. was vitiated as the same was passed beyond the stipulated period of 1 year. In
support of this submission, he relied upon a Division Bench decision of Madras High Court
reported in 1986(2) MLJ 362. In the opinion of the DC of the BCI, this ground raised by
the Respondent was well founded. Though this question was not raised before S.B.C. and
also the appeal memo was silent on this point. B.C.I. allowed this question as it went to the
root of the matter.

The B.C.I. decided the following issue as preliminary issue:

Whether the impugned judgement and order dated 2.4.94 of the D.C. & S.B.C. is vitiated
on the ground that it is passed beyond the period of limitation of 1 year envisaged under
sec. 36B(1) of the Advocates Act, 1961?

S.B.C. actually received the complaint on 11.11.1992. S.B.C. referred the complaint
to D.C. on 23.1.1993. Notices were issued to the parties by D.C. on 28.2.1993. First date
of hearing was fixed on 8.4.1993. The order was passed on 2.4.1994.Sec. 36B(1) provides
that proceedings shall be concluded within a period of 1 year from the date of receipt of the
complaint or the date of initiation of the complaint at the instance of S.B.C., as the case
may be. Hence, in this case the order passed on 2.4.94 isbeyond this period mentioned in
the Act. Immediately after the lapse of 1 year, the case stands transferred to the B.C.I. and
the S.B.C. has no jurisdiction to pass any order in the matter. Therefore, the order dt.2.4.94
passed by the S.B.C. is bad in as much as it was passed without any jurisdiction.

Learned counsel for the Respondent also invited the attention of B.C.I. to the provisions of
Rule 17(2) in Part VII of the B.C.I. Rules, which reads as under:
“The date of receipt of the complaint or date of initiation of the proceedings at the
instance of the S.B.C. shall be the date on which the S.B.C. refers the case for disposal to
its D.C. under sec. 35(1).”

As S.B.C. referred the complaint to D.C. on 23.1.1993 and the order was passed
on 2.4.1994, it was clear that the order was passed beyond the period of 1 year
as contemplated by sec. 35(1) of Advocates Act r/w Rule 17(2) of B.C.I. Rules.

Therefore, in the opinion of the B.C.I. the order of the S.B.C. was vitiated and was liable to
be set aside. Now the proceedings were deemed to be transferred to B.C.I.
Therefore, obviously they were treated as pending before B.C.I. and were to be disposed of
by B.C.I. in accordance with law. It was now an original proceeding before B.C.I.

B.C.I. further observed that part of the evidence recorded by D.C. of S.B.C. fell within the
limitations and remaining was recorded beyond that period. Now B.C.I. had to
decide while hearing the case as original proceeding whether it could act upon that
evidence or whether the parties should give additional evidence.

ORDER

The appeal was partly allowed. Impugned order dated 2.4.94 passed by Indore Bench
of Madhya Pradesh S.B.C. in CC No. 67/92 was quashed and set aside. The proceedings
of CC No. 67/92 were held to have stood transferred to the B.C.I. and it was observed
that the B.C.I. would proceed further in accordance with law.
CASE 4
C vs. R ,24(3&4) 1997 IBR 201

B.C.I. Tr. Case No. 76/1995

Shri Jagannath Patnaik (Chairman) and Shri Ashok Deb and Shri S.K. Padhi(Members)

Judgement Dated 12th December, 1996

FACTS OF THE CASE

Complainant’s Case: Complainant engaged Respondent to file a case in respect of

theftcommitted in his house. Respondent–Advocate gave him a draft complaint, which
was sent to the Commissioner of Police and other authorities by the
Complainant. Respondent also issued notice to the Station House Officer, Lajpat Nagar
Police Station, New Delhi, on behalf of the Complainant for supply of enquiry report. Till
then no fees were settled between the Complainant and the Respondent. Respondent had
promised that he would charge minimum fees. Later on, Complainant paid in all Rs.
4000.00 to the Respondent out of which Rs. 2000 were towards fees and Rs. 2000 were
towards expenses for filing the case in Court. He singed vakalatnama and gave two sets of
papers to the Respondent. Respondent asked the Complainant to bring certain documents
such as bank passbook, etc. for filing the case. Respondent demanded Rs. 11,000 as his
fees. During the time, Complainant became very busy, instructed the Respondent not to
file the case, and asked him to return Rs. 4000 paid by him. However, the Complainant
did not return the money.

Respondent’s Case:

Respondent denied the allegations made by the Complainant. He categorically denied that
he had received any money from the Complainant. He admitted the facts in the complaint
in respect of drafting the complaint and issuing notice etc.without receiving any fee from
the Complainant. He stated that the Complainant was referred to him by one Shri
ManojSwarup, Supreme Court Advocate, to help the Complainant, as he was a poor
person, without charging any fees. He averred that as huge amount of money was alleged
to be stolen, he asked the Complainant to bring Photostat copy of the bank passbook so that
the charge may be substantiated. He asked the Complainant to pay him Rs. 2,200 towards
fees for filing the case as well as for the notice and complaint which was drafted by him
earlier. After a few days theComplainant approached the Respondent and told him that he
did not want him to file the case and asked him to return the papers. When the Respondent
asked him to sign a receipt for the said paper, the Complainant refused and left his office
and later filed this complaint against him.
PROCEEDINGS

The following issues were framed by the D.C. of the Bar council, after going through
the pleadings of the parties.

1. Whether the Respondent took Rs. 4000 from the Complainant?

2. Whether the Respondent did professional misconduct by not rendering the service to the
Complainant, if he has paid the alleged amount?
3. Any other professional misconduct?

In his evidence, Complainant supported his pleadings. On the question put by

the committee in respect of the professional service rendered to him by the
Respondent, Complainant stated that he was prepared to pay the reasonable fees as may be
decided by the committee. In the cross-examination he stated that in order to pay the fees,
he had borrowed Rs. 4,000 from a neighbouring lady, whose name he did not disclose.
He also stated that no document was executed for the said loan.

In his evidence, Respondent supported his pleadings. In the cross-examination, he denied

the suggestion put to him that he has received Rs. 4,000 towards fees and expenses and
also denied the suggestion that he had demanded Rs. 11,000 towards
fees.The crucial point involved in this case was whether the Complainant has proved his
case to the effect that he paid Rs. 4,000 to the Respondent as alleged. In support of
his allegations, Complainant did not produce any convincing evidence. In his cross-
examination he gave evasive answers of having received the money from his
neighbour and reused to adduce her evidence. As even refused to disclose her name. To
the question put by the committee he agreed to pay reasonable fee for the
professional service rendered to him by the Respondent. If he had already paid Rs. 4000 to
the Respondent as alleged by him, he would have requested the committee to order refund
of Rs. 4000 after deducting the reasonable fee. It is not uncommon practice when a
senior colleague sends a case to another colleague with a request to help the client,
normally the Advocate obliges. In this case also, the D.C. of B.C.I. felt that the Respondent
might have drafted complaint and issued notice without charging any fees. The D.C. of
the B.C.I. felt that it was not unjustified on the part of Respondent to demand receipt
from the complaint for having received the document.

Therefore, the Complainant failed to prove his case against the Respondent for professional
misconduct.

ORDER

As such the complaint was dismissed. The parties were left to bear their own costs.
CASE 5
(Negligence in Conducting Case and Misleading Client)

C vs R 23(1) 1996 IBR 155

B.C.I. Tr. Case No. 104/1990

Shri Jagannath Patnaik (Chairman) and Shri Ashok Deb and Shri S.K. Padhi (Members)

Judgement Dated 19th November, 1995

FACTS OF THE CASE

Complainant’s Case:

The Complainant had filed a suit in respect of an immovable property and had appointed
the Respondent-Advocate to represent him in the said case. The Complainant visited the
Respondent on different dates to ask about the progress of the case. He was informed that
the case was pending in the Court of the Rent Controller. After aconsiderable time, the
Complainant discovered that the case had been dismissed for default long back. The
Complainant’s efforts to restore the case throughanother Advocate did not yield any results
and he was constrained to file a fresh case.

Respondent’s Case:

Respondent admitted that he had represented the Complainant in the said case, but could
not give any reason for the dismissal of the case for default, and also for making the false
representations to the Complainant that the case was pending.

PROCEEDINGS

Therefore, the B.C.I. had no hesitation in holding that the Respondent had
committed professional misconduct as it is well settled that gross negligence on the part of
an Advocate which leads to the suffering and harassment of the client will amount to
misconduct, and that it was exactly what had happened in this case.The Respondent-
Advocate had neither expressed remorse nor tendered apology in his defence. On the
contrary, he had unnecessarily tried to put blame upon the Complainant himself. It was also
brought to the notice of the D.C. of B.C.I. that the Respondent-Advocate had committed
similar misconduct in the past and had beenpunished with suspension for a period of 1
month. That order was confirmed by the Supreme Court of India.
ORDER
In view of all these circumstances, the D.C. of B.C.I. found it proper to suspend the
Respondent-Advocate from practice for a period of six months.
CASE 6
(Negligence in Conducting Case and Threatening Client)

Kapil Dev Singh vs. PremNath, 21(1) 1994 IBR 187

B.C.I. Tr. Case No. 52/1989

Shri V.C. Sharma (Chairman) and Shri B.N. Sharma and Shri SarveshSharam (Members)
Judgement Dated 20th May, 1990

FACTS OF THE CASE

Complainant’s Case:

Complainant was a party in two cases. He wanted to file two Writ Petitions against some
orders in those two cases. He engaged the Respondent-Advocate as his counsel for filing
these Writ Petitions, and paid him Rs. 2000. Complainant also handed over the necessary
case papers to the Respondent along with several signed plain papers. Respondent assured
the Complainant that he would file the Writ Petitions before the Lucknow Bench of the
High Court. After a few days, when the Complainant met the Respondent, Respondent told
him that he had already got the Writ Petitions filed through a High Court Advocate.
However, he could not tell the name of the High Court Advocate. Becoming suspicious
about the whole incident, the Complainant made
enquiries and found that the Writ Petitions were not filed. Therefore, he met
the Respondent and asked him to refund the money and also to return the papers.
Realising the trouble, the Respondent threatened and insulted the Complainant. Thereby,
he has committed misconduct.

Respondent’s Case:

Respondent in his defence denied all the contentions of the Complainant. He denied that
the Complainant engaged him as Advocate and that he had accepted the vakalatnama. But
he did not deny the payment of Rs. 2,000 or the delivery of papers to him. He contended
that the relation between the parties was strained, and out of animosity, the Complainant
had filed this false complaint. The B.C.I. was surprised to see that the defence was not
verified as required under the provisions ofCPC, and therefore, it did not find the defence
admissible. The Respondent also did not care to file any affidavit in support of his defence.
Therefore, all his contentions were ignored by the B.C.I.

PROCEEDINGS
The Respondent did not even care to appear before the D.C. of either the S.B.C. or
the B.C.I. Hence, D.C. of B.C.I. recorded the statement of the Complainant on oath
and decided the matter on the strength of the records. As the Respondent did not
forcefully and successfully oppose the complaint, the D.C. of the B.C.I. had no hesitation
in upholding the contentions in the complaint, and to hold the Respondent guilty
of misconduct as alleged in the complaint.

ORDER

The Respondent was suspended from practice for a period of six months.
CASE 7
(Vicarious Liability for the Acts of a Partner)

State Bank of India vs. Mrs. S. and Co., 16(2) 1989 IBR 264

B.C.I. Tr. Case No. 14/1980

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 4th March 1989

FACTS OF THE CASE

Complainant filed the complaint before the S.B.C. and the same was referred by the S.B.C.
to one of its D.C.s. Obviously, the D.C. of the S.B.C. could not conclude the casewithin the
statutory period of one year and therefore it stood transferred to the B.C.I.under sec. 36B of
Advocates Act, 1961.

The D.C. of the B.C.I. heard the case on several dates. The evidence on both sides was
recorded and arguments of both sides were heard. The case was posted for
judgement. While writing the judgement the D.C. had some doubts as to the facts and
issued notices to the parties for rehearing. On receiving the notice, the Respondent filed an
application praying the Committee to decide on the maintainability of the case before
going into the merits of the case. On the next date of hearing the Respondent produced
certified copies of two letters written by the Complainant Bank to him and filed an
application for taking those letters on record. The Advocate for Complainant prayed for
time for filing objections to this application and case was adjourned. On the next date of
hearing the Advocate for Complainant submitted that he was not going to file any
objections. The Advocate for Respondent argued on the application. The Advocate of the
Complainant once again prayed for a time for filing objections and submitted that he will
argue only after filing the of the objections. He submitted that on the earlier occasions he
had not received the copies of the letters sought to be produced by the Respondent as
evidence, and therefore he could not file objections. Adjournment was granted as the
prayed for.

Even on the next date of hearing, the arguments were not concluded and the case was
adjourned for further hearing. On the date of further hearing, the Advocate for
Complainant filed an adjournment application, which was rejected. The letters were
admitted in evidence and arguments were closed. The judgement was reserved.

Complainant’s Case: The Respondent is a Solicitor Firm practising in Delhi. Complainant

Bank and its branches used to entrust most of their cases to the Respondent Firm.
JungpuraBranch of the Complainant Bank entrusted a case to the Respondent firm against
a borrower for breach of financial discipline. The Respondent advised the Bank to file a
criminal complaint and also a civil suit for recovery of money against the said borrower.
According to the Bank, it lodged a Police complaint and filed a civil suit through the
Respondent Firm. The Bank entrusted the valuable original loan documents to the firm
along with fees and expenses.

After few days, the Bank enquired with the Respondent Firm about the name of the Court
in which the suit had been filed and the next date of hearing. But no reply was received by
it from the Respondent Firm. Therefore, it became suspicious that the firm waswithholding
vital information regarding the case. It instructed the Respondent Firm to retire from the
case and appointed another Firm to look into the matter. The Bank was informed by the
new Firm that though the suit had been filed by the Respondent firm, the plaint was
returned to it by the Court office for rectifying certain defects in plaint. But the plaint was
not represented. In the meanwhile, the Law Department of the Complainant Bank came
across a case reported in AIR 1978 SC 335. In that case, strictures were passed by the
Supreme Court against a senior member of the Respondent Firm for a similar conduct in
the case reported therein.

Therefore, the Complainant bank believes that the Respondent Firm had misappropriated
the money given to it towards fees and expenses and had failed to account for the same.
The original papers which formed the basis of Complainant Bank’s claim against the
borrower have also been either secreted, destroyed or misappropriated and converted to
their own unlawful benefits by the Respondent Firm. Therefore, the partners of the
Respondent Firm were guilty of professional misconduct.

Respondent’s Case: Only one of the partners appeared and filed his defence. He denied
all the allegations. He contended that the Firm had filed the suit and that the allegation
in the complaint to the effect that the same was returned by the Court for rectification of
defects was false. Hence, he contended that there was no occasion for all holding the
Firm liable for misconduct.

He further contended that the Complainant had signed vakalatnama only in the name of
the senior member of the Firm and not in his name or in the name of any other member
of the firm. Therefore, even if the allegations in the complaint were true, he is not liable
because for the misconduct of one partner another partner is not held liable unless they
abetted or they are accessories to the misconduct directly. He contended that there is no
vicarious liability. He also raised the preliminary objection as to the maintainability of
the proceedings.

PROCEEDINGS
On the basis of the pleadings the following issues were framed:

1. Is the case maintainable?

2. Whether the plaint was returned to the Respondent as alleged?
3. Whether the Respondent wrongfully withheld documents?

The Respondent argued before the Bar of Council of India that the reference of
the complaint by the S.B.C. to its D.C. was mechanical one and the S.B.C. had not
applied its mind to the case before referring it. In its reference the S.B.C. did not mention
that the S.B.C. had considered the complaint and that it had found that there is a prima
facie case. He relied up on the decision of a Supreme Court reported in AIR 19881 SC 477
in support of his argument.

On the perusal of the original records B.C.I. found that the S.B.C. had issued notice to
the Respondent and only after hearing the parties the case was referred to its D.C. Hence
the requirement of law of “reason to believe” was fulfilled. The B.C.I. also felt that the
decision sighted above is not applicable to the instant case. Hence, the objection
was rejected.

On the question as to whether the plaint was returned as alleged, the Complainant produced
a letter written by Respondent Firm to the Complainant. The letter did not bear the
signatures of any of the partners of the Firm, and therefore, was objected by
the Respondent for marking. Complainant stated in his evidence that the plaint was
returned because court fee had not been paid. This was rejected as untrue because if
the court fee is not paid or if it is in the deficit, the plaint is not returned, but time is
given for the payment of deficit court fee. Therefore, the Complainant was held to have
failed in establishing that the plaint had been returned.

However, the Complainant Bank successfully established that it had handed over
the valuable original loan documents to the senior partner of the Respondent Firm.
Hence, the D.C. of B.C.I. held the senior partner of the firm guilty of committing
misconduct by withholding the valuable documents of the Bank. The D.C. of B.C.I. held
that the other partners cannot be vicariously liable for the misconduct of the senior partner,
and they were exonerated of all charges levelled against them.

ORDER

Therefore the senior partner of the firm was found guilty of serious
professional misconduct and was suspended from practice for a period of 5 years. He was
also made liable to pay a cost of Rs. 5,000 to the Complainant Bank. Other partners of
the Respondent Firm were exonerated of all charges levelled against them.
CASE 8
(Latches and Negligence in Conducting the Case)

N.M. vs. V.D., 16(3&4) 1989 IBR 536

D.C. Appeal No. 35/1987

Shri L.N.K. Singh (Chairman) and Shri Saradindu Biswas and Shri B.R.
Ghosal (Members)
Judgement Dated 27th May, 1989

FACTS OF THE CASE

Complainant’s Case:

Complainant had engaged Respondent-Advocate to represent him in a civil suit. In that

case, Complainant had filed 11 documents. Subsequently the Respondent started pressing
the Complainant to enter into compromise. This made the Complainant suspicious.
Therefore, he engaged another Advocate along with the Respondent. This Advocate
discovered that two very important documents which were produced in the case were
missing from the records. Further inquiry revealed that they were taken out by the
Respondent and he had signed the List of Documents to thateffect, but had no put date in
order to mislead the Complainant. Without the knowledge of these events, the Complainant
had led his evidence and he was put to embarrassment as he could not mark these
documents. Thus the Respondent has caused unnecessary expenditure and difficulties to
the Complainant due to his latches and negligence.

Respondent’s Case:

Respondent denied the case of the Complainant in toto. He denied having put pressure
upon the Complainant for entering into compromise in the said civil suit. He also denied
that another Advocate came to be appointed out of suspicion about his conduct. He
contended that the two documents named in the complaint were taken by him and he had
signed the list of documents. But the Respondent explained this contention in a different
way in his evidence. He told that the suit was decreed ex parte after recording ex parte
evidence of the Complainant. The Complainant had got all material documents marked
during his examination-in-chief. As the suit was decreed, the Respondent returned the brief
to the Complainant. Subsequently the defendants in the suit applied for setting aside the ex
parte decree. Therefore the Respondent requested the Complainant to return the papers, but
they were never returned to him. Another Advocate was appointed by the Complainant to
represent him. Since then, the Respondent was not in picture. Thus, even if the two papers
were removed by the Respondent, it has not caused any inconvenience or loss to the
Complainant.

PROCEEDINGS

D.C. of the S.B.C. found that the documents were taken by the Respondent and he had
not proved that they were delivered to the Complainant. He might have misplaced them
negligently. Contrary to his pleadings and evidence that he had returned the brief
and thereafter had no concern in the suit, it appeared from the records that he acted
for Complainant on subsequent dates also. Therefore, there was variance between
pleadings and evidence. Therefore, the Respondent had committed professional
misconduct.

It was clear that the Respondent did not have any use for those documents. He had nothing
to gain by concealing them. Therefore, he was only negligent in misplacing the documents,
and no mala fide intention could be attributed to this act of the Respondent. The
Complainant had not proved the allegation that Respondent pressurised him to enter into a
compromise. Under the circumstances, the D.C. of the S.B.C. felt it
sufficient to reprimand the Respondent. He was also made to pay a cost of Rs. 2000 to
the Complainant.

Against the above order appeal was preferred on the following the grounds:

1. That the D.C. of the S.B.C. has grossly erred in finding that the action of the Respondent
is not mala fide.

2. That the learned D.C. has erred in finding that the Complainant will not suffer any loss
on account of the action of the Respondent.

3. That the learned D.C. has failed to see that the Respondent wanted that
the Complainant’s civil suit be dismissed.

4. That the D.C. has awarded a very lenient punishment for the grave
professional misconduct and the D.C. ought to have removed the name of the
Respondent from the Rolls.

ORDER

After hearing the parties at length, the D.C. of the B.C.I. dismissed the appeal on
the following grounds:
1. The D.C. of the B.C.I. completely agreed with the order of the D.C. of the S.B.C.
that no case of mala fides could be made out by the Complainant. It was not disputed that
the Respondent could not gain anything either by withholding the document or by losing
them. It goes without saying that the lost documents were of no use to the Respondent.

2. As the burden of proof in the civil suit did not lie on the Complainant but
onthe defendants in the suit, and also because the lost documents could be freshly obtained
by the Complainant, there was no loss to the Complainant in the suit. However, he would
be put to some inconvenience and put to some expenditure in getting these documents
freshly. This aspect had been taken into consideration by the D.C. of the S.B.C. and costs
were awarded to the Complainant to the tune of Rs. 2000.

3. Considering the materials on the record, B.C.I. had no hesitation in holding that the third
ground of appeal was frivolous and baseless. The conduct of the Respondent might put the
Complainant to great difficulties, but it did not go to prove that the Respondent had the
desire to see that his client visits a failure in the suit. On the contrary it was clear from the
records of the case that he had won a decree for the Complainant, may be the same was an
ex parte decree.

4. The D.C. of S.B.C. had not only reprimanded the Respondent, but also saddled him with
heavy costs. The D.C. of the B.C.I. found the punishment adequate.
CASE 9
(Negligence in Conducting Case)

G vs. M 14(3) 1987 IBR 488

D.C. Appeal No. 40/1986

Shri M.L. Garg (Chairman) and Shri R.S. Mahendra and Shri N.N. Mathur (Members)
Judgement Dated 27th April, 1987

FACTS OF THE CASE

Complainant’s Case:

Complainant obtained a temporary injunction against her husband restraining him from
contracting a second marriage. Subsequently the suit was dismissed for non-prosecution.
Taking this opportunity, her husband remarried on 2.5.1985. Thus, due to the negligence of
the Respondent in conducting the case, the Complainant is put to great loss.

Respondent’s Case:

Respondent honestly admitted that he did not appear in the case on the said date and hence
the suit was dismissed. He had to attend the marriage of a relative on the said date and had
requested one of his colleagues to represent in that case. Before the Respondent could
move an application for restoration, the Complainant withdrew the brief from him.

PROCEEDINGS

Neither party led and produced any evidence. The case was decided by the D.C. of
the S.B.C. on the strength of the pleadings alone. It found that there was no negligence
on the part of the Respondent in the non-prosecution of the case, but he was negligent in
not filing the restoration application. As such he was held guilty of misconduct and was
reprimanded.

In the appeal, the Respondent produced a certified copy of an application filed by

the Complainant in the Court of District and Sessions Judge expressing apprehension
that her husband may remarry. The application was filed in July 1985. This showed that
the Complainant’s and averment that her husband had remarried on 2.5.1985 was false.
The Complainant did not appear before the D.C. of the B.C.I. to explain the
discrepancy. Thus, the Complainant’s version that the negligence on the part of the
Respondent gave an opportunity to her husband to remarry was rejected by the D.C. of the
B.C.I.Further, there was no reason for the D.C. of the B.C.I. to disbelieve the
Respondent’s version that he was not given any opportunity by the Complainant to file a
restoration application, especially when the same had gone unchallenged by the
Complainant. Therefore, the view of the D.C. of the S.B.C. that the Respondent was
negligent in not filing the restoration application was held to be not correct.

ORDER

Therefore, the appeal was allowed and their order and judgement of the D.C. of the S.B.C.
was reversed setting aside the conviction and sentence. The Respondent was
exonerated of all the charges levelled against him.
 CASE 10
(Negligence in Conducting the Case, Inordinate Delay in Filing the Complaint)

C vs. P14(4) 1987 IBR 735

D.C. Appeal No. 7/1981

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members)
Judgement Dated 20th March, 1987

FACTS OF THE CASE

Complainant’s Case:

Complainant and his wife wanted to purchase flat and they entered into an agreement for the
purchase of a flat with an estate agent, and also paid him some advance money. But the
estate agent tried to dupe them. In order to take legalrecourse the Complainant approached
the Respondent-Advocate. Complainant paid Rs. 3,000 to the Respondent towards his fees
and expenses and obtained a receipt. But theRespondent-Advocate did not take any action.
In the meanwhile, the Complainant couldrecover almost the entire amount from the estate
agent with the help of the Police. Therefore, he did not feel it necessary to file suit against
the estate agent and therefore, demanded the money back from the Advocate by writing him
a letter. But he did not get any reply from the Advocate. Therefore, he filed acomplaint
against him for the misconduct.

Respondent’s Case:

Respondent admitted almost all the facts. But he contended that at the time of filing the
police complaint itself the Complainant had taken back all the papers as well as the draft
plaint prepared by the Respondent. Respondent had drafted the police complaint and it was
agreed that the Respondent should adjust Rs. 500 towards expenses for effecting the
compromise through police and Rs. 1,500 were his fees. Respondent had returned Rs. 1,000
to the Complainant in cash. He claimed that he had also received a receipt from the
Complainant but it was missing. He expressed suspicion that it might have gone back to the
Complainant along with the case papers. He also contended that the Complainant has filed
the complaint only after six years. If he were really aggrieved, he would not have waited for
six years.

PROCEEDINGS
The D.C. of the S.B.C., after going through the evidence, was of the opinion that
the Respondent had not returned the money to the Complainant and therefore, he was
held guilty of misconduct and was suspended from practice for a period of three years.

In the appeal, the Respondent raised a fresh defence that the complaint was time barred under
art. 137 of the Limitation Act. He again stressed that the delay in filing the
complaint itself showed that it was a false complaint. After going through the records
carefully, the D.C. of the B.C.I. was satisfied that the Respondent had refunded Rs. 1,000 to
the Complainant after deducting Rs. 2,000 towards his professional charges. It accepted the
contention of the Complainant that due to inordinate delay in filing the complaint it was very
difficult for him to produce the necessary evidence. D.C. of the B.C.I. accepted all the
contentions of the Respondent and expressed its reluctance to believe that the aggrieved
Complainant would have waited for a long period of six years before filing the complaint.

ORDER

Hence it allowed the appeal, and the conviction and the sentence passed by and the
lower D.C. was set aside. The D.C. of the B.C.I. did not deem it necessary to give its
opinion on the point limitation.
CASE 11
(Negligence Not Amounting to Misconduct)

A vs R, 23(1) 1996 IBR 152

D.C. Appeal No. 19/1993

Shri G.D. Bhatt (Chairman) and Shri B.R. Sharma and Shri J.B. Pardiwala (Members)

Judgement Dated 30th September, 1995

FACTS OF THE CASE

Complainant’s Case: In his complaint, the Complainant made several allegations against
the Respondent. The main allegations were, 1. That Respondent-Advocate wrongly
identified one woman in place of another at the time of attestation of a General Power of
Attorney before the Sub-Registrar. 2. That the Respondent was in the habit of disclosing
privileged communications and secrets of his clients to the opposite parties for his personal
benefits.3. That the Respondent used to misuse the names of the presiding officers to
get briefs.4. That the Respondent was working as an estate agent.

Respondent’s Case:

In his defence, the Respondent denied all the allegations levelled by the Complainant
against him. He, however, admitted that he had identified some ladies at the time of
attestation of the G.P.A., but contended that he had acted in good faith at the instance of a
deed writer.

PROCEEDINGS

The D.C. of S.B.C. held the Respondent guilty of misconduct only on account of
his identifying the wrong persons at the time of attesting the GPA before the Sub-
Registrar. The S.B.C. was silent about all other allegations.The D.C. of B.C.I. went
through all the records of the case thoroughly. The GPA in question was executed by four
ladies, out of which three ladies were present at the time of attestation, and in place of the
fourth lady, another woman was made to be present before the Sub-Registrar. They were
all identified by the Respondent-Advocate. This wasan admitted fact. The question before
the D.C. of B.C.I. was whether this was a bona fide mistake on the part of the Respondent
or was done with a mala fide intention of causing wrongful loss to another person. The
records revealed that the GPA was not used to the prejudice of the lady in whose place the
wrong woman was identified. The said lady had applied for the cancellation of the GPA on
the ground that a wrong lady was identified in her place, and also for an action against the
deed writer. The GPA-holder admitted in his evidence that the Respondent had represented
the accused in a criminal complaint filed by the Complainant herein. Other serious
allegations made in the complaint were not pressed evidently for the lack of evidence.

In view of all these circumstances, the D.C. of the B.C.I. felt that the reason given by the
Respondent that he had identified a wrong lady at the instance of the deed writer
was acceptable. The Disciplinary Proceedings being quasi criminal in nature,
the Complainant has to prove mens rea beyond reasonable doubt. In this case,
Complainant had failed to prove mens rea beyond reasonable doubt.

ORDER

Hence, the appeal was allowed and the punishment awarded to the Respondent by the D.C.
of S.B.C. was set aside.The D.C. of B.C.I. relied upon decisions reported in 1995
Chandigarh LR 167 and AIR 1940 All. 289.
CASE 12
(Negligence Not Amounting to Misconduct)

R.M. vs. A.R. and P.M., 16(2) 1989 IBR 273

D.C. Appeal No. 24/1987
Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)
Judgement Dated 2nd September 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant entrusted to the Respondent certain files and records for a filing of two cases.
These cases were to be filed against the Stock Exchange and a company for not delivering
shares to him as per the agreement. These two files contained very important records. One
of them was a letter from the company admittingliability to pay Rs. 51,900 to the
Complainant.

Respondent No. 1 advised the company that there is no use in filing the legal proceedings
against the company and that it is better to settle the matter out of the Court through
Respondent No. 2. But the efforts for settling the case out of Court were not fruitful and
Complainant sought for the return of papers. In the mean time, Respondent No. 2 left
Madras and settled at Salem. Respondent No. 1 gave a letter to the Complainant addressing
the Respondent No. 2 for return of those files. Complainant met Respondent No. 2 at
Salem, but could recover only one file. Even though persistent efforts were made, the
Complainant could not recover the files from the Respondents. The file contained material
documents on which the Complainant’s claim against the company was based. As such, the
Respondents have committed the professional misconduct by not returning the papers.

Respondent No. 1’s Case: Respondent No. 1 admitted that he was approached by
the Complainant with the said case. But he contended that he was not well versed in
subject and therefore, he referred the case to Respondent No. 2, and thereafter Respondent
No. 2 took all the responsibilities of the case. Hence, he has nothing to do with the
alleged misconduct.

Respondent No. 2’s Case: Respondent No. 2 admitted that the case was referred to him by
Respondent No. 1 and also that the two files were entrusted to him by the Complainant. He
also admitted that he had advised for settlement of the matter out of
Court and that the settlement could not be materialised. In the meanwhile, due to old age
and certain other problems he had to leave Madras once for all and settle
atSalem. Thereafter the Complainant approached him and sought for return of the files. He
returned the first file, but could not trace the second. He searched his office thoroughly
and also got the office of the Respondent No. 1 searched thoroughly. Respondent No. 2
categorically stated that Respondent No. 1 was in no way involved in the case but for the
fact that the case came to Respondent No. 2 through Respondent No. 1. He stated
that allegations made against Respondent No. 1 were absolutely incorrect. Respond No.
2 also stated that he did not conceal any file, and at the age of 70 years he had no necessity
for doing so. First file contained all the material documents and the second filedid not
contain any material documents. All material documents on which the claim of the
Complainant was based were returned to him and hence there is no case of
misconduct against him also.

PROCEEDINGS

Complainant examined himself as his witness and his examination-in-chief was recorded.
The case was posted for his cross-examination. But he did not present himself for cross-
examination. The Complainant was absent before the S.B.C. on many occasions earlier
also. Keeping in view the nature of allegations made by the Complainant against the
Respondents and his conduct before the D.C. of the S.B.C., the S.B.C. dismissed the case
for default.

The Complainant could have filed an application before the S.B.C. itself for restoration
of the complaint. But he chose to prefer appeal against the order of the S.B.C. But he
was not present before the Bar of Council of India also in spite of the notice served upon
him.He submitted through a letter that he knew only Tamil and could not argue either in
the English or in Hindi. Therefore, he requested the D.C. of the B.C.I. to decide the case
on the merits from the records only. The inquiry was held at Madras. Even then,
the Complainant remained absent. The Respondents were present both before the
S.B.C. and before the B.C.I. throughout the proceedings.

The B.C.I. looked into the pleadings and material documents present it in the case by the
parties. In his appeal memo, the Complainant had made several allegations against the
Chairman and the Members of the D.C. of the S.B.C. and had contended that it wasa waste
of time to be present before them as they were favouring the Respondents. Hedid not have
any hope of getting justice from them. B.C.I. took these allegations seriously, and observed
that the Complainant had no business to say any such thing against the Chairman or the
Members of the D.C. of S.B.C. without cogent evidence in support of such allegations.
However, the B.C.I. also observed that D.C. of S.B.C. had not given the Complainant
sufficient opportunity for cross-examination.

One of the letters produced by the Complainant was addresed to Respondent No. 1, which
stated that Respondent No. 2 was supporting the company, and blackmailing
the Complainant. Hence, he should make all efforts to get the papers back from
RespondentNo. 2. He had also sent a D.D. for Rs. 240 with the letter. This D.D. was not
encashed by Respondent No. 1 as he had nothing to do with the case. The letter also
clearly disclosed that it is only Respondent No. 2 who was involved in the case. Hence,
B.C.I. had no hesitation in holding that the case against Respondent No. 1 was not proved.

From the pleadings and evidence it was clear that Respondent No. 2 was negligent
in losing the case papers entrusted to him. But this negligence did not amount
to misconduct. B.C.I. relied upon the decision of a Supreme Court reported in AIR 1984
SC 101 which is based on a decision of the Madras High Court reported in AIR 1926
Mad 568.

ORDER

Therefore, the appeal was dismissed with a cost of Rs. 1,000 payable to Respondent No. 1
only.
CASE 13
(Negligence Not Amounting to Misconduct)

J.M. vs. S.S., 16(2) 1989 IBR 285

D.C. Appeal No. 3/1988

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated 2nd September 1988

FACTS OF THE CASES

Complainant’s Case: The Complainant had met with an accident due to a rash and
negligent driving of a lorry driver, due to which the lorry hit against the Complainant.
The Complainant was hospitalised and during the period of his treatment in the hospital
as an in-patient, he filed a case for compensation against the lorry driver, the lorry owner
and the insurer of the lorry. This case was a filed through a clerk of the Respondent, who
approached the Complainant for the case. After the discharge of the Complainant from
hospital, the Complainant found that no case had been filed by the Respondent-Advocate.
He sought for the return of papers. Even then the papers were not returned to him. Hence
the Respondent-Advocate is guilty of the grave professional misconduct by not filing the
case in spite of payment of fees and by not returning the case papers in spite of the request.

Respondent’s Case: The Respondent admitted the fact that he had filed the case of
the Complainant, but categorically denied that his clerk had approached the Complainant
for the case. According to the Respondent, a friend of the Complainant had approached the
Respondent for filing of the case. The Respondent further stated that the case filed by him
was returned for the want of certain the particulars. He had written several letters to the
Complainant as well as to the friend of the Complainant who had entrusted the case to him,
for the supply of those details. He had not received any reply from either of them. The
Respondent alleged that the Complainant did not pay him the fees as promised by him.

Respondent admitted that he had received the letter from the Complainant seeking the
return of papers, but contended that though he had written back to him to come to his office
and collect the papers. But the Complainant did not collect papers from his
office. Therefore he has not committed any misconduct, professional or otherwise.

PROCEEDINGS

After going through the evidence on record, the S.B.C. was of the opinion that
the Respondent had not produced any evidence to show that he had replied the letters of
the Complainant. The Respondent had stated that usually such letters are replied in the
routine course by the clerk. However he also stated that he remembered to have replied the
letter of the Complainant personally. But he had not sent it through registered post. But for
the self-serving statement of the Respondent there was no other evidence on
record to show that the letter was supplied by the Respondent. Therefore the D.C. of
the S.B.C. found him guilty of misconduct.

As far as filing of case is concerned, the Respondent had stated that he had filed the case
but the same was returned to him for the want of particulars. He had contacted
the Complainant and also his friend for those particulars for no avail. Complainant said
thathe had inquired with the police station for those details and was informed that the
Respondent had already collected those details from the Police Station. S.B.C. did
not accept this statement of the Complainant, because an Advocate could not have
collected those documents. Therefore the say of the Complainant that he did not reply to
letters written by the Respondent because the details were already collected by the
Respondent was rejected by the D.C. of the S.B.C. This view of the S.B.C. was upheld by
the B.C.I.

Now the only question before of the B.C.I. was whether the non-reply ofthe Complainant’s
letter by the Respondent amounted to negligence amounting to
professional misconduct. It was clear from the records that no substantial injury
or inconvenience was caused to the Complainant by the act of the Respondent.
Therefore, though the Respondent’s act amounted to negligence, it did not amount to
professional or other misconduct.

In support of its order, the B.C.I. relied upon the decision of the Supreme Court reported in
AIR 1984 SC 110, and the decision of Madras High Court reported in AIR 1926 Madras
568.

ORDER

In view of the above circumstances, the D.C. of the B.C.I. was pleased to interfere with the
order passed by the D.C. of S.B.C. finding the Respondent guilty of professional
misconduct and the impugned order was set aside. In the result, the appeal was allowed.
CASE 14
(Withholding Documents)

R vs. L.J. L.J. vs. R14(3) 1987 IBR 491

D.C. Appeal No. 10/1986 D.C. Appeal No. 10A/1986

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members)
Judgement Dated 4th August, 1987

FACTS OF THE CASE

Complainant’s Case:

Complainant had entrusted a Promissory Note to the Respondent to issue a notice to the
debtor, and had paid the fees therefor. The notice came to be issued and subsequently the
Complainant demanded the notice back so that he could file a suit through some other
Advocate. But the Respondent-Advocate refused and demanded exorbitant fee through a
notice. This was replied by the Complainant stating that he was not liable to pay fees as
demanded by the Respondent and again reiterated his demand for the return of the
Promissory Note. The Respondent did not take any step to return the Promissory Note and
the suit became time barred causing loss to the Complainant to the tune of Rs.11,000.

Respondent’s Case:

Respondent admitted the receipt of the Promissory Note. He also admitted the demand of
fees but justified his claim. As the fee was not paid he had exercised his right of lien. The
Complainant and the Respondent resided in the same flat and there were some disputes
between their families in respect of sharing of tap water, etc. Therefore, this complaint was
filed to take revenge.

PROCEEDINGS

From the records and also from the admission of the Respondent it was clear that
the Complainant had entrusted him the Promissory Note. It was also clear that after the
notice was issued by the Respondent, the Complainant demanded the Promissory
Note back and also gave a notice that if the Respondent failed to return the Promissory
Note,he would file a complaint before the S.B.C. But the Respondent did not care to reply
the notice, let alone to return the Promissory Note.

The question before the D.C. of the S.B.C. was whether the Respondent had the right to
withhold the document. Normally no Advocate issues any notice without collecting
the charges. Therefore, the Respondent’s demand for fees after a period of one year was
found to be unusual. Respondent justified his claim for exorbitant fees on the ground that
he had prepared plaint. But the Complainant said that he had not given any instructions for
preparing the plaint. Further, the Respondent did not produce the draft plaint. Therefore,
the Advocate had no right to withhold the document and as such he was held guilty of
misconduct. The D.C. of the S.B.C. punished the Respondent by suspending him for a
period of 1 month without costs.

In appeal there were two questions before the D.C. of the B.C.I.:

1. Whether the failure on the part of the Respondent to return the documents to the
Complainant amounted to misconduct?

2. If so, is the punishment awarded by the lower D.C. sufficient?

ORDER

The D.C. of the B.C.I. agreed with the decision of the D.C. of the S.B.C. on the first issue,
but modified the order of the D.C. of the S.B.C. by adding costs of Rs. 1,000. The D.C. of
the B.C.I. did not interfere to modify the order of suspension by enhancing it as the
Complainant had already initiated civil proceedings to recover the damages for the
loss caused him.
CASE 15
(Failure to Render Accounts, Misappropriation of Money, Withholding ofDocuments)
A vs. P14(4) 1987 IBR 745

D.C. Appeal No. 12/1986

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members)
Judgement Dated 28th February, 1987

FACTS OF THE CASE

Complainant’s Case:

Complainant used to entrust his cases to the Respondent-Advocate for several years. Some
such cases were the rent control cases. In these cases the Respondent did not tender
accounts to the Complainant and never paid the money due to him. Therefore he wanted to
withdraw the cases from the Respondent-Advocate. But the Respondent-Advocate did not
return the case papers to him. Thus he has committed professional misconduct by
withholding the documents.

Respondent’s Case:

In his defence the Respondent categorically denied that the facts mentioned in the
complaint. He also expressed that he was much deplored of the attitude and behaviour of
the Complainant. He pleaded that he used to help the Complainant at the time of financial
distress by obtaining loans for him. It was further contended that the Respondent used to
repay the loans from the rents received by him on behalf of the Complainant. He also
claimed that the Complainant was in arrears of fees. He also produced a statement of
accounts.

PROCEEDINGS

The D.C. of the S.B.C. went through the records carefully and found from the evidence that
the Respondent had returned the case papers to the Complainant and also that he had never
withheld any money from him. It also pointed out that the Complainant had not approached
the Bar Council with clean hands. He had never made any efforts to
realise what amount was due to him from the Respondent. He could have gathered
this information from the court or from the tenants themselves. D.C. of the S.B.C. also
found that the Respondent had helped the Complainant by arranging loans for him
from another client. This was clearly shown by the documents produced by the
Respondent. It was also evident from the records that the Advocate for a tenant had paid
Rs. 500 to the Respondent towards rents due to the Complainant. The Respondent had
returned the money to the Advocate for the tenant as the same was not collected from him
by the Complainant. Postal acknowledgement signed by the Complainant for having
received the case papers sent to him by the Respondent was produced before the D.C. of
the S.B.C. Therefore the D.C. of the S.B.C. dismissed the complaint exonerating the
Respondent.

The D.C. of the B.C.I. upheld the decision of the D.C. of the S.B.C. It observed that the
present complaint filed by the Complainant was criminal in nature. Therefore,
the Complainant had to prove his case beyond all reasonable doubts. The Complainant
hadfailed in proving his case. Therefore D.C. of the S.B.C. was held to be right in
dismissing the complaint.

ORDER

In the result, the appeal was dismissed and the order of the lower D.C. was upheld.
CASE 16
(Misappropriation of Client’s Money)

A vs. R24(1&2) 1997 IBR 271

D.C. Appeal No. 13/1991

Shri D.V. Patil (Chairman) and Shri S.C. Chawla and Shri S.G. Nair (Members)

Judgement Dated 14th September, 1996

FACTS OF THE CASE

Complainant’s Case:

Complainant’s husband was the owner of some houses inSingavaram Village, Alampur
(W), Mahaboobnagar Dist. Those houses were submerged
in Srisailam Project and a compensation of Rs. 2,80,533.40 came to be deposited by
the Govt. in the Sub-Court, Gadwal. Respondent-Advocate represented the
Complainant’s husband in that case. Complainant used to accompany her husband
whenever he went to visit the Respondent. Later on her husband was missing and an
advertisement wasissued in Newspaper by her brother-in-law. In the mean while the
compensation amount was deposited by the Court in Complainant’s husband’s account in
Canara Bank, Mahaboobnagar Branch. Complainant requested the Respondent to help her
to withdraw the amount from the bank, to which the Respondent agreed. Thus, he has
the knowledge that Complainant’s husband was missing. Respondent avoided helping
the Complainant on one pretext or the other. Subsequently, Complainant came to know
thatthe compensation amount was withdrawn by her husband. In fact it was withdrawn
by the Respondent by forgery. She claimed the money from the Respondent but he
refused. She sent him a legal notice which returned unserved. Later on Respondent
returned Rs. 2 lakhs to the Complainant and she claimed the remaining amount of Rs.
80,533.40 with interest. But the same is not returned to her.

Respondent’s Case:

Respondent denied entire case of the Complainant. He denied that he knew the
Complainant to be the wife of his client. His client was illiterate and hence his account was
opened in Canara Bank, Mahaboobnagar with his photograph. He pleaded ignorance about
the whereabouts of his client. He denied that he had forged the cheque to withdraw the
amount. He also contended that he had come to know that Complainant was not living with
her husband for quite some time.
PROCEEDINGS

Complainant did not appear before the D.C. of S.B.C. in spite of several notices. She
also did not produce any evidence. The D.C. of S.B.C. proceeded to consider the matter
on the basis of its own comparison of thumb impressions on the original petition in the
case filed by him and on the affidavit which dated later to the date from which the client
was missing. Hence it became suspicious of the genuineness of the thumb impression
and suggested that it was necessary to hand over the matter for the further investigation
to the Magistrate or the Police Officer.

B.C.I. was unable to agree with the reasoning given by the S.B.C. in the absence of any
substantive evidence on record. Only an advertisement was issued in the newspaper
in respect of missing of the Complainant’s husband. That was not sufficient for the
B.C.I. to reach a conclusion that he was really missing. Neither the script of the
advertisement was produced before the D.C. nor was the evidence of the person who issued
it was recorded. B.C.I. felt it dangerous to make cuttings of newspaper basis of
decisions dealing with the lives of professionals. Hence it was held that the D.C. of the
S.B.C. had erred in depending its decision on such uncreditworthy evidence.

B.C.I. also felt that the inference of S.B.C. that the thumb impressions of Complainant’s
husband on the affidavit were not genuine on its own comparison of the thumb impressions
was uncalled for. Hence the conclusion that the withdrawal of amount was under
suspicious circumstances also went unsupported by the evidence. B.C.I.
expressed its surprise over the observation of S.B.C. that the Complainant’s appearance
before it was withheld by the Respondent in the absence of any creditworthy evidence.

B.C.I. also observed procedural flaws in the proceedings of S.B.C. S.B.C. had not
framed any issues or charges in the case. In normal course the B.C.I. would have framed
the issues itself and proceeded with the case. But in view of total lack of evidence in this
case B.C.I. considered it a futile exercise and decided to set aside the order of
S.B.C. without any further procedure.

ORDER

The Respondent-Advocate was found not guilty. The appeal was allowed and the order
dated 13.7.1991 passed by the D.C. of Andhra Pradesh S.B.C. in CC No. 21/90 removing
the name of the Respondent from the Roll of Advocates was set aside.
CASE 17
(Breach of Trust)
A vs. R
23(1) 1996 IBR 135

D.C. Appeal No. 24/1990

Shri D.V. Patil (Chairman) and Shri R.S. Chahar and Shri Khazan Singh (Members)

Judgement Dated 4th June, 1993

FACTS OF THE CASE

Complainant’s Case: Complainant was a General Power of Attorney-holder of his

mother-in-law, one Mrs. Mary Raymond, during her life time, and her L.R. after her
death. Respondent was the Advocate of the said lady and he had prepared her will. The
will was in the custody of the Respondent. The Respondent had passed a receipt to that
effect. Subsequently Mrs. Raymond changed her Advocate and the new
Advocate requested the Respondent to hand over the will to him. Respondent refused to
hand over the will. Therefore Mrs. Raymond got a new will prepared by the new Advocate.
Even thereafter, the Complainant made several requests to the Respondent to hand over
the will to him, but all his efforts were fruitless. Thus, the act of the Respondent
was mischievous, and had Mrs. Raymond died intestate, it would have resulted in
serious damage to her.

PROCEEDINGS

D.C. of Karnataka S.B.C. rejected the complaint holding that there was no prima facie
case. This order was set aside by the B.C.I. and hearing was ordered.Both parties were
heard by the D.C. of Karnataka S.B.C. and the complaint was dismissed holding that the
will had become res nullius and the Respondent was not liable to return it. D.C. of S.B.C.
gave special emphasis on the fact that there was considerable delay in filing the complaint.
It also observed that the complaint arises out of animosity between parties. In any case, it
was held that the Complainant nowhere alleged the misuse of the will by the Respondent,
and he could not prove that its non return caused any loss or damage to the Complainant or
Mrs. Raymond.

D.C. of B.C.I. differed on all these views expressed by the D.C. of Karnataka S.B.C. The
said will was the property of Mrs. Raymond and she was entitled to recover the same from
the Respondent during her life time. After her death the Complainant who was her Legal
Representative was entitled to recover it. This was not disputed by the Respondent.
Therefore, non-return of will amounted to breach of trust on the part of the Respondent.
Mere refusal to return the will was sufficient to make the Respondent liablefor misconduct
and it was immaterial whether or not the will was misused by him, or
whether or not the non-return of the will resulted into any loss or damage to Mrs. Raymond
or to the Complainant. B.C.I. also observed that mere delay in complaint or strained
relations between the parties per se would not make the complaint false.

ORDER

In the result, the appeal was allowed and order of the D.C. of the Karnataka S.B.C. was
set aside. The Respondent was held guilty of misconduct. He was suspended from practice
for a period of one year.
CASE 18
(Failure to Render Accounts, Misappropriation)

A.K. vs. J.L., 16(1) 1989 IBR 122

D.C. Appeal No. 41/1987

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)

Judgement Dated 2nd September 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant had entrusted certain cases under the Rent Control Act to the Respondent-
Advocate and had paid him certain amounts for depositing in theCourt. These amounts
were misappropriated by the Advocate, and he did not properly account for these amounts
whenever called upon by the Complainant. Further, the Respondent did not conduct the
case is properly and as a result, eviction order to vacate the petition premises occupied by
the Complainant as tenant came to be passed against the Complainant. Therefore, as a
result of the Advocate’s act, the Respondent not only suffered monetary loss but also was
evicted from the premises.

Respondent’s Case:

Respondent-Advocate admitted the averments that he was entrusted with the cases as
alleged in the complaint, but denied that he was given any money for the purpose of
depositing in the Court. The relations between the Complainant and the Respondent were
strained and to harass the Respondent the Complainant has also filed a false criminal
complaint against the Respondent, his wife and another. An erstwhile junior of the
Respondent had, out of professional jealousy, tutored the Complainant in filing that false
complaint against the Respondent. All the facts in the complaint are false and the same
should be dismissed.

PROCEEDINGS

From the pleadings of both sides the Bar Council framed the following issues:

1. Whether the Respondent has committed misappropriation of money entrusted to him by

the Complainant for depositing in the Court?
2. Whether the Respondent was negligent in conducting the case of the Complainant as a
result of which adverse orders came to be passed against the Respondent?

The parties lead oral evidence and also produced certain documents. The most important of
these documents was a copy of R.C.O.P. for deposit of rent on behalf of the Complainant.

D.C. of the S.B.C., after going through the oral and documentary evidence carefully came
to the conclusion that Complainant had not proved the charge of professional misconduct
by the Respondent and therefore, dismissed the complaint.

The D.C. of the B.C.I. upheld the order of the D.C. of the S.B.C. Neither the Complainant
nor his witnesses had come forward with a clear-cut case of misappropriation of funds.
Apart from the oral evidence, there was no substantial evidence on record to show that the
monies were entrusted to the Respondent-Advocate. The R.C.O.P. was produced by the
Complainant to show that the amount was entrusted to the Respondent. But there was no
other evidence to show what order came to be passed on The R.C.O.P. Whether any
amount was deposited or whether the petition was dismissed for the want of deposit is not
known.

The Complainant said that he has taken certain amounts to the Respondent towards fees,
expenses, etc. without producing any evidence for the payment of the
saidamount. Complainant further contended that he had paid the Rs. 4,000 to the
Respondent to procure an electricity generator on hire purchase through bank, as the
landlord had
disconnected electricity to the premises. He did not produce any voucher for the same.
Further it was not necessary for him to approach the Respondent-Advocate for
the purchase of generator on hire purchase through a bank. He could have done it on his
own. He did not even produce any application or recommendation.

On all these counts, the D.C. of both S.B.C. as well as the B.C.I. formed the opinion
that the evidence produced by the Complainant was not sufficient to establish the
severe charges levelled against the Respondent-Advocate.

ORDER

Hence the Complainant’s case was dismissed.

CASE 19
(Misappropriation of Client’s Money)

G. vs. T.
15(3&4) 1988 IBR 359

D.C. Appeal No. 21/1985

Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members)

Judgement Dated 9th July, 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant and other co-sharers in a land acquired by the government were awarded
compensation in some land acquisition matters. The Respondent-Advocate was authorised
to receive the compensation money from the Collector after complying with the necessary
legal formalities. Accordingly the Respondent-Advocate received compensation money,
but he did not pay the same to the Complainant in spite of several requests.

Respondent’s Case:

Respondent denied that he had received money from the Collector on behalf of the
Complainant. But during the proceedings before a the D.C. of S.B.C. he asserted that he
had received the cheque on behalf of the Complainant and after encashing it he had handed
over the cash to his registered clerk for delivering it to the Complainant. He prayed for
summoning the clerk. The clerk denied that the signature on the receipt was his signature
and maintained that it was the signature of the Complainant.

PROCEEDINGS

The Respondent at first denied that he had received a money on behalf of the Complainant.
Then he said that he had received the cheque and after encashing it he
had sent the money to the Complainant through his clerk. The receipt produced by
the Respondent disclosed that the money paid to the Complainant under that receipt was
in respect of some other matters. It was not in respect of the Land Acquisition Matters
mentioned in the complaint. Therefore the receipt did not help the Respondent in
the present case.
The Respondent had admitted that he had received money on behalf of the Complainant,
but he failed to prove that he had paid the money to the Complainant.

ORDER

Therefore DC of the SBC held that the Respondent was guilty of professional misconduct
by misappropriating client’s money. In the result, his name was removed from the Roll
of Advocates.This order was confirmed by the DC of the BCI. DC of the BCI further
awarded costs of Rs. 500 to the Complainant.
CASE 20: (Misuse of Position of Advocate and Confidence of the Client)

S and H. vs. T., 15(3&4) 1988 IBR 364

B.C.I. Tr. Case No. 43/1982

Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members)
Judgement Dated 9th July, 1988

FACTS OF THE CASE

Complainant’s Case:

Complainants were entrusting all their cases to the Respondent and had confidence in him.
Respondent made an offer to Complainants that the Complainant No. 1, the wife of the
Respondent and another two persons could form a partnership for the manufacturing and
sale of bricks. This offer was accepted by the Complainant No. 1 and she paid the Rs.
18,496 to the Respondent towards her share capital. The firm was established but no
partnership deed came to the executed. Later on, the Respondent executed a partnership
deed excluding his wife and Complainant No. 1. Complainant realised the foul play on the
part of the Respondent an approached him for the rendition of accounts. But this failed as
the Respondent refused to show accounts. Thus the Respondent has committed
professional misconduct by misusing his power as an Advocate who was enjoying
confidence of the Complainants as their Advocate and legal adviser.

Respondent’s Case:

The Respondent denied all the allegations in the complaint. He denied the facts of payment
of money to him by the Complainant No. 1 and also the fact that his wife was a partner in
the business. Therefore, he had not taken any advantage of his position as Advocate. Hence
there is no misconduct on his part.

PROCEEDINGS
D.C. of the B.C.I. went through the materials on record and heard both sides. There was
some evidence to show that the Respondent’s wife was carrying on the business of bricks.
But there was no evidence as to the partnership. Nowhere it was alleged and
proved that the Respondent was involved in the business. No independent evidence
to show the role of the Respondent in the business was placed on the record. Simply
because the Respondent was the counsel of the Complainants and that resulted
into friendship does not mean that any act committed thereafter would lead to
professional misconduct.

ORDER: On these grounds the complaint was dismissed.

CASE 21
(Misuse of Client’s Confidence)

J. vs. Smt. A.15(3&4) 1988 IBR 374

D.C. Appeal No. 28/1986

Shri M.L. Garg (Chairman) and Shri N.K. Jain (Member)
Judgement Dated 3rd July, 1988

FACTS OF THE CASE

Complainant’s Case: Complainant and her husband negotiated for the purchase of some
immovable property in Bangalore and approached the Respondent for thepreparation of the
sale deed. There were two separate sale agreements prepared by the Respondent.
Complainant paid some advance to the vendee and the agreement was signed by both the
parties. Complainant paid Rs. 23,000 to the Respondent for purchasing the stamp papers
necessary for executing the sale deed. In fact, the stamp papers necessary for the sale deed
where of Rs. 20,800. The Complainant and her husband came from abroad for signing the
sale deed. But the sale deed was not ready. In the meanwhile, the Complainant came to
know through a telegram sent to her by an Advocate that there was a dispute in respect of
the said property. Therefore she cancelled the idea of purchasing the property and
requested the Respondent to hand over the stamp papers to her. But the Respondent told
that the papers were misplaced and assured to repay the amount. In pursuance thereof he
gave her a cheque for Rs. 21,000 which came to be dishonoured. Thereafter, the
Complainant approached the Respondent and the Respondent paid Rs. 8,000 to the
Complainant in two instalments and promised to the Rs. 15,000 later. But he never paid
Rs.15,000 to the Complainant. Thus the Respondent has committed professional
misconduct by misappropriation of the client’s money.

PROCEEDINGS

The D.C. of the S.B.C. found the Respondent guilty of misconduct and ordered removal of
his name from the State Roll. It also ordered him to pay Rs. 15,000 to the Complainant.In
the appeal, the Complainant submitted that she had received the balance of Rs. 15,000 also
from the Respondent. Therefore, she had no objections for allowing the appeal, as she did
not want to pursue the matter. But the B.C.I. did not find it correct to discharge the
Respondent- Advocate from the liability of misconduct committed by him. In the opinion
of the B.C.I. he had committed misconduct by not proving worthy of the profession and
abusing the trust reposed in him by his client. He had misappropriated client’s money and
had allowed the cheque to be dishonoured. The Respondent admitted that he had given the
money to his clerk for the purchase of stamps but the client had disappeared with the
money and Advocate had filed a police complaint in respect of the matter.
ORDER

The B.C.I. was of the opinion that the removal of the name of the Respondent from the
state Roll was too harsh. Therefore it was reduced to reprimand.
CASE 22
(Misappropriation of Client’s Money)

M vs. R ,14(2) 1987 IBR 319

D.C. Appeal No. 38/1984

Shri V. Rajayyah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)
Judgement Dated 9th February, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant had engaged the Respondent in the eviction petition
in an H.R.C. case. The Respondent won the case for the Complainant and the tenant
preferred revision petition before the District Judge, Mysore. In that revision case, the
tenant deposited arrears of rent in the Court. The amount was withdrawn by the
Respondent-Advocate, but was not paid to the Complainant in spite of several letters
and reminders. Thus, he had committed misconduct by misappropriation of money.

Respondent’s Case: Respondent admitted the withdrawal of money but he claimed that
the amount was slightly less than what was stated in the complaint. It contended that
he had paid the entire amount to the Complainant and had taken vouchers from him.
He alleged that the Complainant had not paid him any fee.

PROCEEDINGS

The D.C. of B.C.I. had two questions before it.

1. Whether the Respondent had paid money to the Complainant and obtained the
receipt as averred by him?

2. If not, was the punishment given by the D.C. of the S.B.C. adequate or should it
be enhanced?

Both the D.C.s went through the records carefully and found from the records and also
from the admission of the Respondent that he had withdrawn the money as stated in the
complaint. Records also clearly indicated that the act of withdrawal of money was
fraudulently concealed from the Complainant, but when the case was filed the
Respondent came out with a new theory that he had paid the entire amount to the
Complainant. However the receipt produced by him was dated 3.9.1988 to whereas, he
had withdrawn the money on 4.9.1988. Therefore, the D.C.s did not choose to believe the
version of the Respondent. A cursory perusal of the receipt indicated that it is not a genuine
receipt. Respondent had also alleged that the complainant had not paid him his fee. In such
an event, the Respondent would have deducted the fee from the money. He would not have
paid the entire amount. Thus, the version of the Respondent was totally rejected by the
D.C. and he was found guilty of misconduct by misappropriation of client’s money and
also by his conduct he had brought down the dignity of the profession.

ORDER

The D.C. of the S.B.C. recorded conviction and sentenced the Respondent with suspension
for a period of one year. The D.C. of the B.C.I. felt the punishment inadequate and ordered
the removal of the name of the Respondent from the State Roll.
CASE 23
(Forgery and Misappropriation of Money)

K vs. V, 14(3) 1987 IBR 496

D.C. Appeal No. 7/1986

Shri N. Rangaraj (Chairman) and Shri K.N. Rajashekhar and Shri P.V. Shetty (Members)
Judgement Dated 4th August, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant had filed a suit for recovery of money from
the Defendant in that suit. He filed an application for attachment before judgement in
respect of the defendant’s money standing in deposit at the Post Office. The application
was allowed. Later on, when the suit was decreed in favour of the
Complainant,the attachment was made absolute. The Complainant engaged the
Respondent-Advocate for the purpose of withdrawing the money through the court. He
signed the vakalatnama and paid fees to the Respondent. Even after a long time the
Complainant was told by the Respondent that the court had not yet received the money.
Becoming suspicious,the Complainant made enquiry in the Court and found that the
Respondent had forged the signature of the Complainant on all legal papers and withdrawn
the money which had been received by the Court from the Post Office long back. The
Complainant issued two notices to the Respondent calling upon him to pay him the money.
Though both the notices were received by the Respondent, he did not care to reply them.
Therefore he had committed misconduct by forgery and misappropriation.

Respondent’s Case: The Respondent did not file any defence.

PROCEEDINGS

The Complainant passed away even before the date of first hearing before the D.C. of
the S.B.C. The Legal Representatives of the Complainant were brought on record and
the son of the deceased Complainant appeared with Power of Attorney from other Legal
Representatives. On the subsequent date of hearing the Legal Representatives were not
present before the D.C. of the S.B.C., but their Counsel was present. He expressed that
he had no knowledge about a memo received by the D.C. of the S.B.C. to the effect that
the Legal Representatives had received the money from the Respondent and they had
compromised the matter. Therefore, they had prayed for dropping the proceedings. In
view of the allegations of forgery against the Respondent the D.C. of the S.B.C. considered
it necessary that the Legal Representatives should be present at the time of passing the
order. On the next date the son of the original Complainant was present and his evidence
was recorded and the documents were marked. The documents clearly showed that the
Respondent had forged the signatures of the Complainant. The D.C. ofS.B.C. got a
confirmation from the handwriting expert also. Throughout the proceedings the
Respondent was not present before the D.C. The D.C. of the S.B.C. after elaborately
considering the evidence on record found the Respondent guilty of professional
misconduct and passed an order directing the removal of his name from the State Roll.

The Respondent attacked the order of the D.C. of S.B.C. mainly on two technical grounds:

1. The D.C. of the S.B.C. ought to have acted on the compromise memo and oughtto have
dropped the proceedings.

2. He did not get proper opportunity to a present his case before the disciplinary D.C. of the
S.B.C.

In answer to the first contention that the D.C. of the S.B.C. ought to have to dropped
he proceedings against him as they were compromised, the D.C. of B.C.I. referred to
section 35(1) of Advocates Act, 1961 which reads:

“Where on receipt of a complaint or otherwise a State Bar Council has reason to

believe that any advocate on its roll has been guilty of professional or other misconduct, it
shall refer the case for disposal to its disciplinary committee.”

and Rule 11(3) of Chapter I under Part VII of the Rules of B.C.I. which reads:

“No disciplinary enquiry shall be dropped solely by reason of its having been withdrawn,
settled or otherwise compromised, or that complainant does not want to proceed with the
enquiry.”

and held that the D.C. of the S.B.C. was not under any obligation to act upon the
saidcompromise memo.

The second contention that the Respondent could not represent before the D.C. of the
S.B.C. because he believed that the proceedings would be dropped in view of
the compromise memo was not accepted by the D.C. of B.C.I. as true and bona fide. The
D.C. of the S.B.C. had issued notices at every stage. It had issued him notice
before sending the documents to handwriting expert and also at this stage of recording the
evidence of handwriting expert. Therefore there was no reason for him to believe that
the proceedings against him would be dropped.Therefore the D.C. of B.C.I. found the
Respondent guilty of forgery and misappropriation and therefore of professional
misconduct. The nature of the misconduct committed by him was very grave. Such a
person is unfit to be in the legal profession.
ORDER

Therefore D.C. of B.C.I. was pleased to uphold the sentence of the D.C. of the
S.B.C. removing the name of the Respondent from the Roll of the S.B.C.
CASE 24
(Cheating the Client)

C vs. A, 19(3&4) 1992 IBR 125

B.C.I. Tr. Case No. 127/1988

Shri K.J. Shethna (Chairman) and Shri B.N. Sharma and Shri Ajay Kumar (Members)

Judgement Dated 30th June 1990

FACTS OF THE CASE

Complainant’s Case: Respondent was running a Solicitor’s Firm. He was hand in glove
with an impostor who represented himself to the public as a financier.
Complainant approached that impostor for a loan of Rs. 7,00,000. The impostor took him
to theRespondent. Respondent represented that he was a reputed Advocate, and therefore,
worked only for genuine Financial Institutions. He told that the parties have to pay
him 3.5% of the loan amount as fees and 2% towards stamp duty that would be required
at the time of disbursing the loan. Thus, he demanded, in all, 5.5% of the loan amount in
cash. He said that payment in cash will speed up the procedure and the disbursement could
be made early. Therefore, the Complainant paid Rs. 38,500 to the Respondent, which is
5.5% of Rs 7,00,000.

Later on, the Respondent-Advocate told the Complainant that as the responsibilities were
too heavy, he would proceed with his legal work only if the Complainant paid him Rs.
10,000 towards his fees. Complainant reluctantly paid the amount as demanded by the
Respondent.

But instead of disbursing loan to the Complainant, the financier initiated a false police case
against the Complainant himself. Complainant approached the Commissioner of Police,
and with his help, the financier was booked to law. But the police advised the Complainant
to proceed against the Respondent through the S.B.C. This is not the only such case against
the Respondent. The Respondent has committed many such frauds.

PROCEEDINGS

The following issues were framed by the D.C.:

1. Whether the Respondent-Advocate is engaged in a finance racket to induce and deceive

innocent loan seekers?
2. Whether the Respondent-Advocate has defrauded the Complainant?

3. Whether the Respondent-Advocate has committed any misconduct?

Complainant examined 42 witnesses including himself, and got three documents marked.
The Respondent examined himself as his witness and got four documents marked.

From the evidence there was no doubt in the minds of the members of the D.C. of B.C.I.
that the Respondent-Advocate in collusion with the impostor deceived innocent
people, and also that he had defrauded the Complainant among others. Several objections
raised by the Respondent on the technicalities were overruled by the D.C. of B.C.I.

Once the fact of fraud was proved, there was no doubt that the Respondent had committed
professional misconduct.The Respondent did not show any regret or remorse. The
misconduct committed by the Respondent was of a very serious nature. There were no
extenuating circumstances.

ORDER

Therefore, the D.C. of B.C.I. ordered for removal of the name of the Respondent from the
Roll of Advocates. He was also ordered to pay Rs. 2,000 to the Complainant towards
the cost of the proceedings.The D.C. of B.C.I. relied upon the judgements of the Supreme
Court reported in AIR 1963 SC 1313 and AIR 1985 SC 28 for giving the punishment in the
cases of misconduct.
CASE 25
(Making False Assurances)

Y.V.R. vs M.K.N.16(3&4) 1989 IBR 542

B.C.I. Tr. Case No. 27/1988

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 10th June, 1988

FACTS OF THE CASE

Complainant’s Case: Complainant, an electronics engineer has his business premises and a
complex, and next to him in the same complex is the legal consultancy run
bythe Respondent. Complainant and the Respondent developed acquaintance with each
other. When the Complainant wanted to purchase an industrial plot, the Respondent
showed him many plots and promised to settle the one which was selected by the
Complainant. As a legal adviser the Respondent asked the Complainant to pay some
amount to him as advance for the purchase of the plot. Complainant paid the Respondent
money as per his demand. After a few days Respondent demanded more money and the
same was again paid by the Complainant through cheques. After this, the Respondent
started avoiding the Complainant. After continuous efforts Complainant could secure a
promissory note from the Respondent for half the amount and post datedcheques for the
remaining half amount. The cheques were dishonoured. Complainant insisted that some
security should be given by the Respondent in respect of the money due tohim. Respondent
pledged his scooter with the Complainant, and later on lodged a police
complaint alleging that his scooter had been stolen. The scooter belonged to
the Respondent’s wife and the Complainant had to return it to her. Thus, the Respondent
has committed misconduct by his dishonest behaviour.

Complainant also averred that he has filed a criminal complaint against the Respondent
which was still pending.

Respondent’s case:

Respondent denied all the facts except for the money received by him from the
Complainant’s through the cheques. He contended that he had given post datedcheques to
the Complainant in respect of the money and had requested him not to the present it prior
to a particular date. Still the Complainant presented the Cheques prior to that date and as a
result, the same came to be dishonoured. He had also given a promissory note in respect of
the same amount only as security for the money. The promissory note and the post
datedcheques were not given in respect of two different sums of money, but they were in
respect of the same sum of money.

The Respondent also contended that in any event, there is no client and Advocate relation
between them. As such, the complaint must be dismissed in limini. The relation between
them is only a relation of creditor and debtor and it is only a civil case. Therefore, there is
no misconduct.

PROCEEDINGS

From the pleadings of the parties, D.C. of the S.B.C. framed the following issues:

1.Whether the Respondent has committed any professional or other misconduct

as alleged in the complaint?

2. If so, what is the punishment?

At least in respect of half the sum alleged to have been taken by the Respondent from the
Complainant there was no dispute. There was also no dispute in respect of delivery of post-
dated cheques by the Respondent to the Complainant. Respondent contended that he had
given promissory note only as additional security for the money. This did not appear
creditworthy to the D.C. There was also no consistency between the pleadings of the
Respondent and the records in respect of the promissory note. Further, the
post datedcheques were dishonoured. D.C. of the B.C.I. observed that once the cheques
were issued it was the duty of the Respondent to see that funds were sufficient for
meeting the cheques. In the event of failure to do so he ought to have intimated the
Complainant in writing that due to some specific reason he could not make the funds
available and should have requested him to present the cheque on some other date.

Respondent also said in his evidence that the promissory note was got signed
byhim through coercion. There was nothing to show on record that the Respondent has
taken
any steps in that respect. He could have filed private complaint. But there was absolutely
nothing that was done by the Respondent in this regard. This showed that it was a false
statement.

Respondent had undertaken to pay the amount admitted by him. Even till the date of
hearing of the case, he had not done so. In view of the all these circumstances the records
revealed that the conduct of the Respondent was not proper and would amount to
misconduct as the same was done by him in the capacity of a legal consultant.
In view of the facts and circumstances of the case the D.C. of the B.C.I. was led to think
that the Respondent had not only committed misconduct of having made the Complainant
believe that he would settle the transaction in pursuance of which he made him to part with
money which was not returned by him.

ORDER

In view of the pending litigation between the parties, B.C.I. thought it proper to take a
lenient view in respect of punishment and even though the misconduct was of very serious
nature, the Respondent was suspended from practice for a period of two years.
CASE 26
(Cheating the Client)

C.L. vs N.T.S.16(3&4) 1989 IBR 563

B.C.I. Tr. Case No. 24/1986

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 26th November, 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant wanted to initiate legal proceedings against her neighbour and in that
connection she contacted the Respondent. The Respondent advised her to issue a notice to
the said neighbour and accordingly the Complainant got a notice issued to the neighbour
through the Respondent. As the notice was ignored by the neighbour, the Respondent
advised the Complainant to institute a suit against the neighbour. He also demanded some
money towards his fees and expenses. The same was paid by the Complainant’s husband to
the Respondent. After some time the Respondent said that he had filed the suit and a local
commissioner had been appointed by the Court. He demanded some more money to pay
the commissioner’s fee. The Complainant’s husband paid the same promptly. The
Complainant’s husband used to be away on business tours and the Respondent used to give
information to the Complainant about the progress of the case. Once when the
Complainant’s husband was in Delhi he contacted the Respondent and asked about the
progress in the case. Respondent stated that the suit had been decreed in favour of the
Complainant, but the neighbour had preferred an appeal against the said order. However he
refused to disclose the name of the Court in which the suit was filed and the name of the
Court in which the appeal was instituted. When the Complainant’s husband demanded to
see the file it was put off by the Respondent on one pretext or other. Even
thoughthe Complainant’s husband contacted him on several occasions, the file was not
shown to
him. Finally the Respondent told the name of the court in which the appeal was filed.
On inquiry this turned to be false. When Respondent was confronted with this, he told that
due to some lacunae in the previous suit, a fresh suit had to be filed, and demanded more
money which was also paid by the Complainant’s husband. Subsequently on inquiry it was
found that this time the Respondent had filed a suit as promised, but had affixed court fee
to the tune of only 10% of the money received by him from the Complainant’s husband
towards court fee.
Respondent’s Case: Respondent denied the allegations made against him and stated that the
Complainant had not engaged him for instituting any legal proceedings against her
neighbour, nor had he issued any notice to the neighbour of the Complainant onbehalf of
the Complainant. He contended that since the construction of the premises, he had acted for
the Complainant as well as her neighbour and he had a procured permission under sec. 21
of Delhi Rent Control Act. Therefore he could not have acted for the Complainant in a suit
against the neighbour. As he refused to act for the Complainant on that ground, he was
requested to become the mediator and settle their dispute amicably. Thus he has never
acted for the Complainant and except for filing a petition under the Delhi Rent Control Act,
and he had received a fee for that purpose. He contended that he had issued receipts for
those amounts.

By this time the Complainant had died and her husband filed a rejoinder to thedefence filed
by the Respondent. He gave the number and the date of the D.D. through which he had
paid the money in the first instance. He also stated that the Respondent had got issued a
notice to the neighbour through one of his friend Advocates. Whenthe Complainant’s
husband asked about this, the Respondent stated that, that Advocate is his associate and
therefore there is nothing wrong in issuing a notice in his name.
Complainant’s husband also denied having requested the Respondent to act as mediator.

PROCEEDINGS

S.B.C. initiated inquiry against the Respondent through one of the Advocates.
The Advocate conducting inquiry gathered sufficient evidence against the Respondent and
categorically directed him to refund the amount to the Complainant as he did not file any
suit even after accepting the money. Complainant refused to accept the money without the
same being noted in the records of the case because several similar complaints filed by
several other persons were pending against the Respondent and he wanted to create a
record against the Respondent. The Respondent said that the Complainant’s witness was a
got up and false witness who could not even tell the location of the Complainant’s house.
B.C.I. did not attach much importance to the evidence of this witness as he was only a
messenger sent by the original Complainant to the Respondent.

Another witness of the Complainant supported all the facts mentioned in the complaint
including the fact that the Respondent did not file suit initially in spite of being paid money
and also about the filing of the suit subsequently by receiving more money. He also stated
that he recovered 10 times more money than necessary towards court fee. Respondent on
the other hand said that he was not given any money for filing suit but it was a fee for
having obtained permission under sec. 21 of Delhi Rent Control Act. In his pleadings he
had told that he was paid from time to time fee for obtaining permissionunder sec. 21 of the
Delhi Rent Control Act. In evidence he said that a Demand Draft was given for payment of
fee in one lump sum. There was no consistency between pleadings and evidence. Further
there was no corroborative evidence. In evidence he also stated that the draft included fee
for drafting a lease deed. This was absolutely a new case. One of the documents produced
by the Complainant was the receipt for a payment for drafting the lease deed and it showed
that the fee was paid in cash. Therefore, the Respondent’s case was not creditworthy.

From the facts stated in the complaint and proved through oral and documentary evidence,
and from the circumstances gathered from the evidence of the Respondent, the D.C. of the
B.C.I. was satisfied that Respondent was guilty of professional misconduct.

ORDER

The Respondent was suspended from practice for a period of for years and costs of
Rs.2000 were awarded to the Complainant.
CASE 27
(Cheating the Client, Making False Statement before the Court)

B.T. vs V.M.15(1&2) 1988 IBR 187

D.C. Appeal No. 23/1987

Shri V.C. Mishra (Chairman) and Shri K.D. Sood and Shri D.K. Trivedi (Members)

Judgement Dated 2nd January, 1988

FACTS OF THE CASE

Complainant’s Case: Respondent is a close relative of the Complainant and he was

thecounsel of Complainant’s parents during their lifetime. After the death
ofthe Complainant’s parents, Respondent continued to give legal advice to the
Complainant.
Complainant reposed great confidence in the Respondent and used to sign any paper on his
asking. This confidence was misused by the Respondent. He planned to
grab Complainant’s property which she got from her parents. On the basis of a false
document he obtained a decree of specific performance of a contract in respect of her
property in his favour, and also obtained an order of ejectment against her. Respondent
also made false statements in the course of evidence that he had not
represented Complainant and her parents. Thus he has committed misconduct by misusing
the trust and confidence reposed in him by his client and by making false statements that he
has not represented Complainant or her parents in any court.

It was further alleged in the complaint that the Respondent had been held guilty of
similar misconduct on an earlier occasion also.

Respondent’s Case:

Respondent denied the case of the Complainant. He stated that on the basis of a sale
agreement he filed a suit against the Complainant which was decreed with costs in his
favour. Complainant’s appeal has been dismissed by the High Court and she has preferred
an appeal before the Supreme Court. He also stated that his subsequent petition for
ejectment and suit for recovery of arrears of rent were also decided in his favour. He had
not committed any misconduct.

PROCEEDINGS
The following issues were framed by the D.C. of the Bar Council:
1. Whether the Respondent has committed any professional or other misconduct?
2. What relief?

All the cases were decided in favour of the Respondent by the trial courts and their orders
were upheld by the High Court. Appeals in respect of all of them were pending before the
Hon’ble Supreme Court. Complainant had chosen to file the complaint at this juncture. As
the matters were subjudiced, the D.C. of the B.C.I. did not choose to got into the merits of
the cases and to hold whether or not the documents were genuine. Instead, it concentrated
on the second allegation as to the false statements by the Respondent. Three documents
were produced the relevant portions of which read as under:

Ex. C9: “I do not remember exactly if I was the counsel for the mother of the defendant in
some ejectment petitions in 1969 as the Shri KST Advocate conducted her affairs. It may
be possible that Shri KST Advocate used to come from Chandigarh and maybe he had
obtained my signatures on the power of attorney so that in his absence the case may not be
dismissed for default. I do not remember if I had ever appeared in any such application in
the Court.”

Ex. C10: “I never have acted as her Council in any the worse case. I also do not remember
having acted as Council for her mother in any ejectment proceedings.”

Ex. C11: “Ever since the beginning of 1971 I never conducted a case on behalf of the
defendant, nor has she had consulted me in any legal matter.”

Perusal of the records showed that the first case lasted for two months and only the power
of attorney of the Respondent was filed in it. The second case lasted for seven months
before it was compromised and the third case for about two months. In these cases the
Respondent was not Advocate. Respondent being the 75 years of the age could not recall
the said facts when his statements were recorded. It could not be ruled out that his memory
was failing. The standard of proof required in the cases of professional misconduct is of a
very strict nature, the proceedings being quasi criminal in nature. Therefore, the B.C.I. was
of the opinion that professional or other misconduct had not been proved in the case
against the Respondent.

The D.C. of the B.C.I. further observed that the fact that the Respondent was
guiltyof misconduct on earlier occasions cannot be considered too hold him guilty in this
case.

ORDER
In the result, the appeal was allowed and the judgement and order and sentence passed by
the Punjab and Haryana S.B.C. against the Respondent was set aside.

CASE 28
(Making False Assurances)

R vs. Y and S14(4) 1987 IBR 756

D.C. Appeal No. 34/1985

Judgement Dated 26th September, 1987

FACTS OF THE CASE

Complainant’s Case: The Complainants jointly started an industry-cum-laboratory under

the name and style of to “The Universal Scientific and Industrial Centre”, under the
financial assistance from the Canara Bank. The Bank had originally sanctioned aloan of
Rs. 20 lakhs, after releasing a part of the loan it stopped the payment and initiated legal
proceedings for the recovery of the loan already released. The Respondent-Advocate was
engaged by the Complainant to represent him in the said case. The Respondent-Advocate
assured that he will be able to get a compensation of Rs. 50 lakhs from the Bank at the rate
of Rs. 60,000 per month for the abrupt stoppage of payment. For this he collected excess
money apart from the agreed fee from the Complainants. Buthe did not take any steps for
getting the compensation. On the contrary he even failed to cross-examine the Bank. Thus
he had played fraud and therefore was guilty of misconduct.

Respondent’s Case: The Respondent admitted that he was engaged by the Complainants to
represent them in their case against the Bank. He also admitted that he had received free
from the Complainants, but denied that he had collected excessive money from them as
claimed in the complaint. The Respondent contended that he had not assured to get them
any damages. Considering the various aspects of the suit, the Complainants were not ready
to depose before the court, and therefore he had advised them to compromise the case. This
was misunderstood by the Complainants.

PROCEEDINGS

The Complainants did not examine themselves before the D.C. of the S.B.C. Their
Power of Attorney-holder was examined as their only witness. He produced several
documents and got them marked. Respondent was the only witness on his side. From the
records the D.C. of the S.B.C. was satisfied that the Complainants had proved their case
against the Respondent that he had collected excess money by making false promise.
Therefore the D.C. of the S.B.C. was of the opinion that he was guilty of misconduct.
However as the Respondent was aged about 80 years and had put in about 50 years of
practice he was only reprimanded. The Complainants had produced several counterfoils of
cheques to prove their case. They also produced the pass book. The Respondent gave a
strange and curious explanation to these. He said that the cheques were sent him through a
person who used take the signature of the Respondent on the cheques and he used to take
pay cash to the Respondent under the pretext that it was difficult for him because of his age
to go to the bank to encash the cheques. He used to take back the cheques and probably he
used to tamper with them. This argument of the Respondent was dismissed by the D.C. of
the B.C.I. with contempt. At this stage the Respondent offered to refund the money
collected by him in excess of his fees. This itself showed that he had collected excess
money as alleged by the Complainants.

ORDER

Therefore the appeal was dismissed and the order of the lower DC was upheld on
conviction and punishment.
CASE 29
(Extortion of Client)

Mrs. H.S. vs. B.D., 16(2) 1989 IBR 245

B.C.I. Tr. Case No. 29/1981

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 26th February 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant is the Managing Director of M/s Hotel Niru Private Limited. The Respondent
was working for a solicitor’s firm. Complainant’s case entrusted to the firm was conducted
by the Respondent. It was a case under sec. 636(2) of the Companies Act. Later on
Complainant’s husband and another director of Hotel Niru Private Limited entrusted
another case to the same Solicitors Firm. This case was in respect of lease and sub-lease of
an immovable property. Fees and expenses of both these cases were paid to the solicitors
for as per their demand.

Later on, the Respondent separated from the said Solicitors Firm and started to independent
practice. Subsequently, the Solicitors Firm failed to get the lease and sub-lease deed
registered, and the Respondent contacted the Complainant’s husband and offered to get the
work done if it is entrusted to him. Complainant’s husband agreed and paid the fees
demanded by the Respondent. Respondent demanded more money after some time and the
same was paid to him by the Complainant’s husband. The Respondent made a third
demand for money which was refused by the directors of Hotel Niru Private Limited. On
this the Respondent approached the High Court and the initiated a winding-up proceedings
against Hotel Niru Private Limited in the capacity of a creditor. The directors came to
know about these proceedings only when the Official liquidator appointed by the Court
visited the Hotel premises with the winding up order. Surprised by this, especially as no
money was due to Respondent from the Company, the Complainant approached the
Respondent. The Respondent told her that he would get the proceedings dropped if the
Complainant paid him Rs. 10,000 in cash. Under the
pressure of coercion and undue influence the Complainant paid Rs. 10,000 to the
Respondent as per his demand. But the Respondent issued a receipt for only Rs. 7,600,
and told that that was the amount claimed by him in the winding-up proceedings.
Complainant’s request for a separate receipt for Rs. 2,400 was not entertained by the
Respondent.
Complainant got an application for vacating the winding up order through another
Advocate. On the same day Respondent met her in the High Court lounge and told her
that he had come to know that she had filed an application for vacating the winding-up
proceedings. He also threatened that he would oppose the Complainant’s application
and get it dismissed. He offered to sign “no objection” on the application, provided the
Complainant paid him Rs. 5,000. The Complainant gave the amount through cheque,
and to cover up his misconduct the Respondent issued a receipt stating that the amount
was towards his profession and charges. Thus, the Complainant was cheated and
blackmailed by the Respondent and thereby the Respondent has committed misconduct.

Respondent’s Case: The Respondent denied all the allegations made in the complaint as
false, baseless and scandalous, and intended to malign him and harm him
professionally simply because he had insisted upon and realised his professional fees
from the Complainant.

The Respondent was the Director in the Department of Company Affairs. The
Complainant was an old and close friend of his niece. She was introduced to him by his
said niece for the purpose of attesting passport applications of the Complainant and her
husband, which he had done.

After his retirement Complainant joined the profession and started his practice as
lawyer. Subsequently the Complainant and her husband approached him and requested
him to give advice to their Company, Hotel Niru Private Limited, on regular basis for a
period of 1 year. They requested him to pull the Company out of its past troubles, as well
as keep it out of troubles in future, by his expertise and experience in the field of
company affairs. It was also agreed that they would pay him a fee of Rs. 100 per sitting.
For a long period of time he was not paid any amount and therefore he prepared a bill
for Rs. 3,500 and delivered it to the Complainant through his junior. But the payment
was not made even this time.

In the meantime, the Registrar of Companies, New Delhi launched prosecution against
the company and also against the Complainant and her husband for non-compliance of
the requirements of Companies Act. This case was filed before the Metropolitan
Magistrate. This case was also entrusted by the Complainant to the Respondent and he
pursued it. For this he charged a fee of Rs. 1,100 which was never paid.

Complainant and her husband entrusted to the Respondent the work preparing two
lease deeds and getting them registered. One of them required an application under sec.
27(2) of the Urban Land Ceiling Act. The application was rejected by the competent
authority. First Appeal preferred by the Respondent against the order was also rejected
and the Respondent was successful in the Second Appeal. Thereafter the Respondent got
the two deeds registered and he submitted a Bill for Rs. 7,600. In this way he had
rendered professional service to the Complainant’s company which was worth Rs.
12,600. But the amount was never paid in spite of many reminders. As the money suitfor
recovery of the amount would be dilatory, in the Respondent initiated winding-up
proceedings. As the notices issued to the company came unserved, citation was issued
in two leading newspapers and after waiting for the representation of the company, the
High Court issued ex parte order for winding up of the company.

Only then the Complainant approached Respondent with his niece, who is her close
friend, and not alone as averred in the complaint. She paid him Rs. 7,600 and promised
to pay the balance of Rs. 5,000 on the next day. Accordingly, she paid the balance of Rs.
5,000 through a cheque in the Court lounge. Therefore, this is a false case and the
Respondent has not committed any misconduct as averred in the complaint.

PROCEEDINGS

In her evidence Complainant supported her case and denied to have gone to meet the
Respondent when he was a Central Government officer for attestation of any passport
applications. She also denied the entire case of the Respondent.

The serious allegations made by the Complainant against the Respondent was to the
effect that she was forced to pay him a sum of Rs. 10,000 in cash under pressure,
coercion and undue influence by the Respondent, and that he issued a receipt for only
the Rs. 7,600. However there was no substantial evidence to this effect. It was only her
self-serving statement to this effect was on record. On the other hand, the Respondent
has not only categorically denied the case of the Complainant but also had led the
evidence of his niece who was an eyewitness. The D.C. of B.C.I. found it difficult to
believe that being a well educated lady and Managing Director of a company she was
forced to pay amount in excess of the receipt given to her. She could have a deposited
the money in the High Court, had the Respondent demanded more money than she was
bound to pay him. The documents filed by the Complainant did not show any case in
support of the Complainant. The Complainant had produced a receipt and a no-
objection certificate for vacating the winding-up order. Both documents were signed by
the Respondent on the same date as could be seen from the date on them. Therefore,
there was no occasion for the Respondent to force her to part with Rs. 5,000 next day for
issuing no objection certificate. Further, if the cheque was issued under coercion, the
Complainant could have written to the bank to stop payment. The cheque was delivered
to the Respondent after the bank hours and on the same day during the post lunch
session of the High Court the winding-up proceedings in the High Court were dropped.
The cheque was encashed only on the next day. She had ample of time to stop the
payment.
Therefore the D.C. of the B.C.I. was satisfied that not only has the Complainant dismally
failed in proving her case, but the true state of affairs were truthfully brought out in
detail by the Respondent in his defence.

ORDER

In the circumstances the complaint was dismissed. And as it was a case of a dishonest
and a malicious prosecution, the Respondent was entitled to a heavy cost which was
ordered by the B.C.I.

In this case the Respondent filed an application under sec. 340 Cr.P.C. r/w sec. 193
I.P.C. and sec. 42(2) of the Advocates Act. Under sec. 42(2), Advocates Act, the
proceedings before the D.C. of the Bar Councils are deemed to be judicial proceedings
within the meaning of sec. 193 and 223 of I.P.C. Therefore, if the D.C. finds it a case of
giving false evidence and fabricating false evidence for the purpose of being used in the
proceedings before it, the D.C. can direct the filing of criminal complaint. In this case,
for the reasons recorded therein, the D.C. of B.C.I. found it not a fit case for exercise of
its jurisdiction under sec. 42(2) of Advocates Act.
CASE 30: (Disregard of Client’s Interest)

G. vs. O., 15(3&4) 1988 IBR 354

D.C. Appeal No. 33/1986

Shri D.V. Patil (Chairman) and Shri N.K. Jain and Shri J.K. Singh (Members)

Judgement Dated 9th July 1988

FACTS OF THE CASE

Complainant’s Case: Complainant had engaged the Respondent for legal services and had
paid him some amount towards fees and expenses. He had also signed vakalatnama in his
favour. Respondent advised the Complainant that he would be informed about the progress
of the proceedings. But in spite of several reminders Respondent did not inform the
Complainant about the progress in the matter.

PROCEEDINGS

Respondent did not appear before the D.C. of the S.B.C.. The D.C. of the S.B.C. came to
the conclusion that there was a wilful and callous disregard of the interest of the client by
the Respondent-Advocate and it was a conduct not befitting an Advocate. Therefore it
passed order suspending the Respondent from practice for a period of 5 years.

Respondent appeared before the D.C. of the B.C.I. for the first time and pleaded hat though
he had committed professional misconduct, he had refunded the entire amount to the
Complainant, and therefore the lapse should be condoned. The Complainant also filed a
memo to the effect that he had received the entire amount from the Respondent. The D.C.
of the B.C.I. came to the conclusion that the records clearly showed that there was no
intentional lapse on the part of the Respondent-Advocate. But at the same time the B.C.I.
observed that the Respondent-Advocate had not cared to act in a manner befitting an
Advocate in the interest of his client. In view of this he had committed professional
misconduct. However looking to the fact that the Respondent did not contest the matter and
made a clean breast of the entire matter before the D.C.s of the Bar Councils and also
because he had made the refund of the money to the client’s satisfaction the B.C.I. took a
lenient a view of the matter and reduced the punishment from suspension to reprimand.

ORDER

In the result the appeal was partly allowed. The finding by misconduct was upheld and
the punishment was reduced from suspension to reprimand.
CASE 31: (Withdrawal Form Case without Sufficient Reason and Sufficient Notice)

G. vs. O.15(1&2) 1988 IBR 197, C.D. vs. S.S.

B.C.I. Tr. Case No. 16/1986

Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members)

Judgement Dated 24th January, 1988

FACTS OF THE CASE

Complainant’s Case: The Respondent-Advocate represented the Complainant in an appeal

and the Complainant paid Rs. 3,500 in three instalments to the Respondent towards fees
and expenses. After filing the appeal and getting it admitted the Respondent did not give
any information to the Complainant in respect of its progress even when the Complainant
met her from time to time. She also did not return the papers when she was asked to. The
Complainant sent two notices through registered post but the same were returned to the
Complainant unclaimed.

Respondent’s Case: Respondent admitted that Complainant was referred to her by another
Advocate, the reference was without any instructions and papers either
fromthe Complainant or from the Advocate. Therefore she requested the Complainant to
bring
papers without which she could not give her advice. But the Complainant did not comply
with the Respondent’s request. Finally Respondent wrote a letter dated 2.7.1975 calling
up on the Complainant to see her along with all the papers failings which she would be
forced to retire, and also stated that if further instructions and papers are not given, her
duties in the case ended without any outstanding claims whatsoever. Respondent
further denied that she had taken the fees as alleged in the complaint and that she was
attending the Complainant in the appeal.

PROCEEDINGS

The Complainant produced a copy of the notice dated 19.9.1977 given to the Municipal
Corporation by the Respondent on behalf of the Complainant. In that it was
clearly mentioned that the Respondent had filed an appeal on behalf of the Complainant
and the same had been admitted, and stay was granted. This showed that the Respondent
had acted as an Advocate for the Complainant in the appeal. As such she was not entitled
to withdraw from the engagements as an Advocate once accepted without sufficient cause
and unless the reasonable and sufficient notice was given to the Complainant Rule 12
Section II in Part VII runs as under:“An advocate shall not ordinarily withdraw from
engagements once accepted, without sufficient cause and unless reasonable and sufficient
notice is given to the client. Upon his withdrawal from a case, he shall refund such part of
the fee as has not been earned.”

The letter produced by the Respondent as the notice by the Complainant wasdated 2.7.1975
whereas the notice given by her on behalf of the Complainant to the Municipal Corporation
was dated 19.9.1977. Hence it was not taken into account Further, the Respondent falsely
denied that she was not representing the Complainant in the appeal.
Therefore, it was held that the Respondent had withdrawn from the case without giving
sufficient reason and notice.

ORDER

The D.C. of the B.C.I. held that the Respondent had committed professional misconduct
within the provisions of section 35 of the Advocates Act. But as the matter was a long
pending one, D.C. of the B.C.I. gave the punishment of only reprimand under sec. 35(3)
(b).
CASE 32: (Representing the Other Side)

G vs. S19(3&4) 1992 IBR 147

B.C.I. Tr. Case No. 39/1987

Shri C.L. Sachdeva (Chairman) and Shri Bhagawati Prasad and Smt. Kamala
Jain (Members)
Judgement Dated 17th September 1991

FACTS OF THE CASE

Complainant’s Case: Complainant was a partner in a firm under the name and style of M/s.
Asian Live Pharma, and the Respondents were the Advocates and legal advisors to this
firm.A meeting of partners of the firm, including the Complainant, with the Respondents
took place in the office of the Respondents. At this meeting, the Complainant disclosed all
the facts of his case to the Respondents. Subsequently, there was a suit for dissolution of
partnership among the members of the said firm. In that suit, the Respondents represented
the other partners against the Complainant. As the Complainant had disclosed his case to
the Respondents, they have committed misconduct by appearing against him.

Respondents’ Case: Respondents denied the case of the Complainant. They denied that the
Complainant had supplied or disclosed any information to them, which would make them
liable for passing on secrets.

PROCEEDINGS

The Complainant stated in his deposition that the meeting took place for about 15 minutes.
In that meeting all the partners of his firm participated. During the
meeting, theComplainant informed the Respondents, in confidence, about manoeuvring
of accounts and fraud committed by him in the partnership firm.As the meeting took place
only for about 15 minutes, during such a short meeting all the facts averred by the
Complainant could not have happened. Therefore, the D.C. of the
B.C.I. held that the Respondents had not committed the alleged misconduct. But it felt that
in the propriety of things, the Respondents should not continue with the case. The
Respondents agreed to this.

ORDER

Therefore, in the light of above reasons, the D.C. of the B.C.I. was pleased to dismiss the
complaint.
CASE 33: (Representing the Other Side)

F vs. K19(3&4) 1992 IBR 149

B.C.I. Tr. Case No. 39/1989

Shri K.J. Shethna (Chairman) and Shri B.N. Sharma and Shri H.C. Sharma (Members)

Judgement Dated 28th March 1992

FACTS OF THE CASE

Complainant’s Case: As per the averments of the complaint, the Complainant had filed
a suit for partition against 14 persons in the Court of Civil Judge (Junior Division),
Malegaon. He was represented by the Respondent-Advocate. The suit was dismissed by
the Civil Judge (Junior Division), Malegaon, and the Complainant preferred an appeal
against the said order and the appeal was allowed by the appellate Court. The appellate
Court ordered partition and remanded the suit to the trial Court for final decree
proceedings.

Defendant No. 5 in the suit for partition, Shri Md. Ali AyubAsghar filed application for
final decree. In these proceedings he was represented by the Respondent-Advocate.
Hence, the Complainant alleges that the Respondent has committed professional
misconduct by changing sides in the case.

Respondent’s Case: Respondent admitted the facts pleaded by the Complainant. But
according to the Respondent, Defendant No. 5 (Md. Ali AyubAsghar) was not at lis with
the Complainant. In fact, both of them together approached the Respondent for filing of
the suit. In fact they were to file the suit together as co-plaintiffs. But, at the time of
filing of the suit Md. Ali AyubAsghar was not available. Therefore, he was impleaded as
proforma Defendant. In fact, Defendants No. 1 to 4 are the real Defendants. Hence, he
has not, in fact, changed sides, as in that suit for partition, the Complainant and
Defendant No. 5 therein had common interest. Further, when the Respondent filed final
decree application on behalf of Defendant No. 5 Md. Ali AyubAsghar, Complainant
raised objections. Immediately thereupon the Respondent retired from the case. This
shows his bona fides.

PROCEEDINGS

On the basis of the pleadings of the parties, the D.C. of the B.C.I. framed the following
issues:
1. Whether Respondent has committed any professional misconduct as alleged in
the complaint?

2. To what relief, if any, is the Complainant entitled?

The parties examined themselves as their respective witnesses. The Complainant produced
3 documents while the Respondent produced only one document. They did not examine
any independent witnesses. They supported their pleadings and got the documents marked
during the course of their evidence.Rule 33 of the B.C.I. Rules which lays down the
Restrictions on Senior Advocates and Standards of Professional Conduct and Etiquette
reads as under:

“An Advocate who has, at any time, advised in connection with the institution of a
suit, appeal or other matter or has drawn pleadings or acted for a party, shall not
act, appear or plead for the opposite party.”

In the present case it was admitted that Respondent had filed suit on behalf of
the Complainant. The certified copy of the plaint was on record. Para 4 of the plaint
specifically stated that Defendants No. 1 to 4 had acted against the interest of the
plaintiff and Defendants No. 5 to 14. Para 5 of the plaint discloses that the cause of
action to file the suit arose when Defendants No. 1 to 4 denied the claim of the
Complainant.

Therefore, it was clear that the interests of Complainant and Md. Ali AyubAsghar were
common and not distinct in that suit. Therefore, there was nothing to show that the
Respondent had violated the provisions of Rule 33.

ORDER

In the result, the complaint was dismissed.

In support of its decision, the D.C. has relied upon two decisions of the Madras High
Court reported in AIR 1938 Mad 276 and AIR 1916 Mad 344 respectively.
CASE 34: (Changing of Side)

S.G. vs. C.P.16(1) 1989 IBR 110

B.C.I. Tr. Case No. 52/1988

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)

Judgement Dated 18th March 1989

FACTS OF THE CASE

Complainant’s Case: The Complainant has a dispute pending before the Registrar of
Firms, Societies and Chit Fund, KshetraKajuri, Varanasi. The said case is pending since
about 5 years prior to the date of this complaint. In that case, the Complainant is
represented by the Respondent-Advocate. The Complainant came to know that the
Assistant Registrar had gone in to collusion with the other side, and that he could not
expect to get any justice from him. Therefore, he filed a suit in the Court of Munsiff, City
Varanasi. In that case, the Respondent represented the other side. The Respondent had
represented the Complainant before the Assistant Registrar, and as such, he had been
knowing all the facts of the Complainant’s case. Therefore by joining the other side in
the case before the Munsiff, the Respondent had committed professional misconduct.

Respondent’s Case: Several notices which were issued to the Respondent were returned
unserved and finally one notice was served upon him. However, he did not care to
appear before the D.C. and to present his side of the case. Therefore, the Committee
placed him ex parte.

PROCEEDINGS

The only question before the Bar Council was:

Whether the Complainant has succeeded in establishing that in fact the Respondent had
worked for him before the Assistant Registrar?

This being an ex parte case, the Complainant did not intend to adduce further evidence
and rested his case on his complaint and the records on the file called from the Assistant
Registrar. On Annexure 1, Photostat copy of the petition filed before the Assistant
Registrar, there was signature purporting to be that of the Respondent. Annexure 2
consisted of some documents which were alleged to be written by the Respondent in his
own hand. According to the Complainant this clearly showed that the Respondent was duly
acquainted with the facts of the Complainant’s case. As such, the Complainant argued that
the Respondent has committed professional misconduct by joining the other side in the
civil suit.

According the Complainant Annexures 1 and 2 were the true copies of their originals,
and Annexure 1 contained the signature alleged to be that of the Respondent. But
the original called from the Assistant Registrar did not bear any such signature. Annexure
2 was alleged to be in the handwriting of the Respondent. But a sample of Respondent’s
admitted handwriting was not made available for comparison. No vakalatnama
was produced. No evidence was lead to prove the signature on Annexure 1. Therefore it
was held that Annexure 1 was not a true copy of the original. It was also held that
Annexure 2 was not proven to be in the handwriting of the Respondent.

ORDER

In the result, it was held that the Complainant had failed to prove his case. Hence the
case was dismissed.
CASE 35: (Appearing Against Person Giving Instructions to the Advocate)

R vs C15(1&2) 1988 IBR 193

D.C. Appeal No. 6/1981

Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members)

Judgement Dated 31st December, 1987

FACTS OF THE CASE

Complainant’s Case: Complainant is the Power of Attorney-holder of a woman whose

cases were conducted by the Respondent. The Complainant in his capacity of Power of
Attorney-holder gave instructions and supplied evidence to the Respondent. Several
cases in which the said a woman was a party were pending with the Respondent. During
the pendency of these litigations the said woman cancelled her power of attorney which
she had executed in favour of the Complainant. Subsequently she executed a will in
favour of the Complainant. The Complainant’s sister’s daughter who was staying with
the said a woman also claimed that the said woman had executed a will in her favour.
Thus there was a dispute among the Complainant and he is niece, and the Respondent
represented the niece in some litigation. He had taken all details about the properties
involved in these litigations from the Complainant when he was acting as the Power of
Attorney-holder of the said woman. Hence the Respondent has committed professional
misconduct by appearing against him.

PROCEEDINGS

It was admitted by the Complainant that he had not seen the Respondent after the
cancellation of the power of attorney. So it was also not disputed that the Respondent
had never represented the Complainant in his personal capacity. Complainant never
sought the advice of the Respondent in respect of the will or any property of the
deceased.

Therefore there is no relationship of a client and Advocate between the Complainant and
the Respondent. Therefore the DC of Maharashtra S.B.C. held that there was no
misconduct of the Respondent if he has represented the opposite party in a suit against
the Complainant.

ORDER
The decision of the Maharashtra Bar Council was upheld by the B.C.I.
CASE 36: (Appearing for Both Sides)

P vs. V14(2) 1987 IBR 314

D.C. Appeal No. 64/1974

Shri B.P. Samaiyar (Chairman) and Shri K.P. Sinha and Shri V.C. Mishra (Members)
Judgement Dated 27th December, 1986

FACTS OF THE CASE

Complainant’s Case: Complainant was the Defendant in a suit. He had engaged the
Respondent-Advocate to represent him in that suit by paying him Rs. 250 towards his
professional fees. Later on, the Complainant again met the Respondent and gave him all
the documents of the case with instructions to conduct the case. He also made as
further payment of Rs. 500 towards fees and expenses. The Respondent filed his
vakalatnama and appeared for the Complainant in the said suit. However, on the next
date of hearing, he moved an application for the withdrawal of the vakalatnama on the
ground that he could not represent the Complainant in that suit inasmuch as, he was
already representing the Plaintiff therein. Thus, the Respondent had accepted briefs
from both the sides and had known their respective cases. Therefore, the complainant
demanded that the Respondent should retire from the case entirely. He should not
represent the Plaintiff in the suit after knowing the case of the opposite side. But, the
Respondent did not agree to this. Therefore, he is guilty of professional misconduct.

Respondent’s Case: Respondent denied the case of the Complainant in toto. In fact, the
said suit was instituted by the Respondent-Advocate, who was the counsel for the
plaintiff. He had conducted the case efficiently and the Defendant in that suit, i.e. the
present Complainant had no chance of winning the case at all. Therefore, he approached
the Respondent’s son who was a junior advocate of 3 years’ standing and told him that
he wished that the Respondent should be his advocate in the said suit. He gave him the
vakalatnama and requested him to file it in the court. When the Respondent’s son asked
him whether the Respondent was in any way involved in the case, the Complainant
answered in the negative. Therefore, innocently the Respondent’s son filed the
vakalatnama. As soon as the Respondent got the knowledge of this fact, he applied for
withdrawal of the same. Then the Complainant objected to his representing the Plaintiff
also. Thus, the Complainant had played fraud to prevent the Respondent from
representing the Plaintiff in the suit. The Respondent emphatically denied that he had
received any fees, documents or instructions from the Complainant.

PROCEEDINGS
During the proceedings before the D.C. of the S.B.C. Complainant submitted that if the
Respondent withdraws from the case, he would withdraw his complaint. Respondent
maintained that though he was not really keen to represent the Plaintiff in the suit, in
order to defeat the ill motive of the Complainant, he would represent the Plaintiff.
Otherwise, it would amount to “putting a premium on the dishonest and fraudulent
action of the Complainant.”

After going through the evidence carefully, the D.C. of the S.B.C. had no doubt that the
Complainant had known fully well that the Respondent was the Advocate for the
Plaintiff. The D.C. also found the evidence on the Complainant’s side to the effect that he
had paid fee to the Respondent unworthy of any credence. On the other hand, the D.C.
found that the evidence of the Respondent that the Complainant had got the
vakalatnama filed by the Respondent’s son through fraud, worthy of credit.

ORDER

Therefore, the D.C. of the S.B.C. was pleased to dismiss the complaint. The order of the
D.C. of S.B.C. was upheld by the D.C. of the B.C.I., and the appeal filed by the
Complainant was dismissed with costs of Rs. 500.
CASE 37: (Misguiding Court by Filing False Case)

District Judge, Nainital vs. R 25(1) 1998 IBR139

B.C.I. Tr. Case No. 40/1991

Shri C.L. Sachdeva (Chairman) and Shri O.P. Sharma and Shri T.P. Singh (Members)

Judgement Dated 5th October, 1996

FACTS OF THE CASE

Proceedings under sec. 35 of the Advocates Act 1961 were initiated against
the Respondent-Advocate in D.C. Case No. 59/89 before the D.C. of Uttar Pradesh S.B.C.
It appears from the records that on account of dilatory tactics adopted by the Respondent-
Advocate, D.C. of S.B.C. could not dispose of the matter within 1 year. Therefore,
the matter stood transferred to the D.C. of B.C.I. under sec. 36 B of the Advocates Act,
1961.Several notices were sent to the Respondent, but the Respondent did not appear.
Hencethe case was decided ex parte against him.

A copy of the judgement dated 2.12.1987 passed by the District Judge,Nainital in a Review
Petition in a Motor Accident Case was on record. From this judgement following facts
appeared.

One Shri Mohsin Ali Khan s/o Mohd. Ali Khan of Bareilly filed a MAC No. 14/82
alleging that he was literally crippled and permanently disabled due to the injuries
sustained by him in an accident caused by a mini bus bearing registration No. USE 7725,
which was insured by New India Assurance Co. Later on, an application was filed by the
L.R.s of the Petitioner Mohsin Ali Khan alleging that Mohsin Ali Khan had died on
28.4.83 due to the injuries sustained by him in the accident, and they prayed that they be
included as his Legal Representatives.

Another MAC No. 21/84 was also instituted by the said L.R.s of Mohsin Ali Khan
alleging that they were the dependants of Shri Mohsin Ali Khan who died in a road
accident on 11.9.1983 caused by a mini bus bearing registration No. USM 6949 which
was insured by M/s. Oriental Fire and General Insurance Co. Ltd.

If Mohsin Ali Khan had died on 28.4.83, MAC No. 21/84 is a false case. This case was
filed by the Respondent-Advocate who is no other than the brother of Mohsin Ali Khan.
It is clear that in collusion with the family members of Mohsin Ali Khan the Respondent-
Advocate had filed this false case to obtain an award from the Tribunal. Being Mohsin Ali
Khan’s brother, he very well knew that Mohsin Ali Khan had died on 28.4.83 and not
on 11.9.1983 as alleged in the petition. This fraud came to the light when M/s. Oriental
Fire & General Insurance Co. Ltd. applied for quashing of the award of MACT in MAC
No. 21/84, and got the same quashed. District Judge, Nainital referred the case to U.P.
S.B.C. for initiating misconduct proceedings against the Respondent.

PROCEEDINGS

The D.C. of B.C.I. framed the following issues:

1. Whether the Respondent has stated any falsehood before the MACT, Nainital for
illegal gains?

2. Whether the Respondent has committed any fraud in misrepresenting the facts
deliberately before the tribunal?

3. Whether the Respondent has committed any professional misconduct?

From the above facts, the D.C. of B.C.I. made the following observations:

“In recent past it has been experienced that in the cases of Motor Accident Claim, the
role of the lawyers in some of the cases has not been up to the mark. Cases of
misappropriation of money by the lawyers awarded by the way of compensation were
frequently being brought to the notice of B.C.I. as a result of which necessary
amendments were made in the practice of preparation of the cheques in the name of the
claimant’s counsel to the claimants themselves, which has now been adopted. Facts of
the above noted case are peculiar in nature and the same cannot be dealt softly and
casually. The charged Advocate who has taken the matter very lightly, though serious in
nature and has not led any effective evidence in support of his defence, a word of
apology cannot exonerate him from the charge levelled against him.”

ORDER

Under the circumstances, committee was of the view that the charged Advocate should
be debarred for a period of two year from the date of notification of the order.
CASE 38: (Identifying Wrong Person before Court)

J.R. vs J.K. 16(3&4) 1989 IBR 550

B.C.I. Tr. Case No. 6/1984

Shri V.C. Mishra (Chairman) and Shri B.N. Sharma and Shri Viresh Mishra (Members)
Judgement Dated 21st May, 1989

FACTS OF THE CASE

Complainant’s Case: Land of the Complainant was acquired by the state along with some
other lands. The state deposited compensation amount in the Court. But due to mistake, the
list contained the name of some other person (A) in place of the name of the Complainant.
A third person (B) withdrew the amount by representing himself to be A. The Respondent
identified B as A, and thereby the Respondent had committed misconduct.

Respondent’s Case: The list consisted of names of as many as 136 persons and
these persons had to furnish security of sarpanch for the money and get the amount
released from the Court. The Respondent identified the sarpanch and the sarpanch in turn
identified the parties. It was further alleged that the person who withdrew the
money belonging to the Complainant subsequently realised the mistake and immediately
thereupon he redeposited the amount in the court.

PROCEEDINGS

The following issue was framed by the Bar Council:

Is the Respondent guilty of misconduct by identifying wrong person before the court?

The evidence of an independent witness adduced by the Respondent clearly showed that
the practice of the court was that the Advocate identifies the sarpanch and numberdars,
and the sarpanch and numberdars in turn identify the parties. Another witness on the
side of the Respondent also deposed to the same effect. There was no reason to
disbelieve these testimonies. Also the receipt showed that the person in question was
identified by the sarpanch and an endorsement to that effect was found on the back of
the receipt.

Therefore no case of misconduct was made out against the Respondent-Advocate. The
D.C. of the B.C.I. felt that the complaint was misconceived and therefore it was liable to
be dismissed.

ORDER: The complaint was accordingly dismissed.

CASE 39: (Interfering with the Decision by Influencing the Judge)

Bar Council of Maharashtra vs. G.M.16(2) 1989 IBR 280

D.C. Appeal No. 46/1986

Shri V.C. Mishra (Chairman) and Shri K.D. Sood and Shri D.K. Trivedi (Members)

Judgement Dated 20th April 1988

FACTS OF THE CASE

An Advocate issued a pamphlet containing allegations of corruption, misconduct,

etc against the members of the bar as well as the judiciary. It appears that the name of the
Respondent also figured therein. It was alleged that the Respondent was appearing as a
Public Prosecutor in a criminal case. In that case one of the witnesses had made a
statement as under:

“It is true that I was shown the accused persons who were kept in the lock-up before I
identified them in the identification room”.

This was a material evidence. To this the judge added the word “not” before the word
“true”. He thereby changed the entire nature of the case. This was done at the instance
of the Respondent Public Prosecutor behind the back of the defence counsel. After
inquiry, the Maharashtra S.B.C. initiated suomotu disciplinary proceedings against the
Respondent.

PROCEEDINGS

It was not the disputed that the word “not” was not in the handwriting of the
Respondent. It was not alleged that the word was written by him, but what was alleged
was that the word was written at his instance. In support of this allegation the two
defence counsels in the case were examined. They deposed to the effect that the word
“not” did not appear in their copy of the judgement but was found only in the copies of
the judge and the Public Prosecutor. Therefore it was apparent that the word was
subsequently inserted by the judge at the instance of the Public Prosecutor. When the
defence counsels objected to this, the judge scored out the word “not”.

According to the Respondent the correction was made by the judge in the open Court.
One of the Complainant’s witnesses stated that he did not know who made the
correction. The deposition was in the custody of the Sheristedar. Evidence of
theSheristedar was not lead to throw light upon the matter. No attempt was also made
toexplain in whose hand the correction was effected. It is dangerous to conclude that the
same was done by the Public Prosecutor on the ground that he was an interested
person. The deposition of the said witness in the criminal case showed that he was first
asked whether accused were a shown to him prior to the identification parade. This was
denied by him. Later a suggestion was made to him that prior to the identification parade
the accused were shown to him, and his deposition was recorded as an admission of
suggestion. Later on, a change was made to the statement by changing it from “true to
say that” to “not true to say that”. Thus it was clear that at the time of deposition itself
the correction was made. It was not known at whose resistance it was make. Even if it
was made at the instance of the public prosecutor, it was difficult to attribute any mala
fide intention or ulterior motive to it. Therefore the Bar Council could not hold the Public
Prosecutor guilty of professional misconduct.

ORDER

Therefore the D.C. of the S.B.C., after considering the records in detail, rejected
the Complainant. The order and the reasons for the order given by the D.C. of the S.B.C.
were upheld by the D.C. of the B.C.I. and the appeal was dismissed.
CASE 40: (Interfering with Decision by Influencing the Judge)

Suo Motu Enquiry vs. Smt. S.T.B., 16(2) 1989 IBR 289

B.C.I. Tr. Case No. 2/1980

Shri N. Rangaraj (Chairman) and Shri P.V. Shetty and Shri A.B. Patil (Members)
Judgement Dated 12th September 1988

FACTS OF THE CASE

Complainant’s Case: Maharashtra S.B.C. initiated suomotu inquiry against the Respondent
on the basis of a complaint filed by a Housing Society. There was a dispute between the
Housing Society and a Company of Builders in respect of construction of certain building
entrusted by the society to the builders. The builders filed a civil suit against a society and
obtained a temporary injunction against the society restraining it from getting the building
constructed through any other builder. The matter was delayed beyond reasonable period
and the society suffered a great hardship, loss and inconvenience.

Under these circumstances the Respondent-Advocate assured the society that she would
get the matter disposed of early by exercising her personal influence over the judge and
demanded certain amount of money for that purpose. All the members of the Society
contributed the money and met the demand of the Respondent-Advocate. Therefore the
Respondent is guilty of misconduct.

Respondent’s Case: The Respondent denied all the allegations made against her.She denied
that she had taken any money from the society or that she had any connection
with the society. She stated that she had obtained a loan from the Secretary of the Society
in his personal capacity and as there was a delay in repayment this false complaint is
lodged against her.

PROCEEDINGS

On the basis of the pleadings of the parties the S.B.C. framed the following issues:
1. Whether Respondent received money from the Society for the purpose of exercising her
personal influence over the judge and the temporary injunction vacated?

2. Whether the Respondent had committed any professional misconduct?

Both the witnesses produced by the Complainant stated in their evidence as to the fact of
payment of money to the Respondent. The first witness also stated the purpose for which it
was paid to her while the second witness could not tell why the money was paid to her. The
first witness was not cross-examined by the Respondent. The Secretary of the Society, who
was the Respondent’s witness supported the Respondent’s case that she had taken loan
from him. But the Bar Council was inclined to accept the evidence of the Complainant’s
witnesses which categorically stated that the money paid to the Respondent has collected
from the members of the society, as this evidence the remained unchallenged by the
Respondent. It appeared to the Bar Council that the Respondent’s witness was only trying
to support the case of the Respondent. Further, it was the case of the Respondent that the
Secretary of the Society was instrumental in filing this complaint as there was a delay in
the payment of loan advanced by him to the Respondent. Under these circumstances if the
Secretary of the Society comes out and supporters the case of the Respondent, his evidence
is not worthy of any credit. Further it was elicited from the second witness of the
Complainant in his cross-examination that the money was collected from all the members
of the society and was paid to the Respondent in her personal capacity. From this evidence
it was clear that the money was paid to her by the Society and that it was not a loan
advanced by the Secretary in his personal capacity.

The Respondent being an Advocate was required to maintain professional integrity and
standard. She was required only to plead for the party and put forward the case and assist
the Court to come to a right conclusion. No Advocate can offer to do something to get him
the case or get a favourable order from the Court by exercising his personal influence over
the presiding officer of the Court.

D.C. of B.C.I. held that the Respondent had received money from the Society assuring that
she would exercise her personal influence over the judge and get the work done.

ORDER

Therefore B.C.I. found the Respondent guilty of professional misconduct of severe nature.
The Respondent was suspended from practice for a period of 1 year. The Respondent was
also ordered to pay a sum of Rs. 1,000 to the Complainant towards the costs of the
case.B.C.I. would have taken a very serious view of the matter, having regard to the
gravityof misconduct committed by the Respondent. But as she was in the beginning years
of her
career as an Advocate, and also because she had refunded the entire money to the Society,
the D.C. of the B.C.I. was inclined to take lenient view in respect of the quantum of
punishment. B.C.I. relied upon the decision of Supreme Court reported in AIR 1985 SC
110 insupport of its opinion.
CASE 41: (Contempt of Court by Making Scandalous Allegations against the
Presiding Officer)

P.R. vs. V.I.,16(3&4) 1989 IBR 524

B.C.I. Tr. Case No. 101/1988

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 3rd September, 1988

FACTS OF THE CASE

At the material time the Complainant was a Munsiff-Magistrate and the Respondent was
an Advocate. The Respondent-Advocate was representing the Respondent inmaintenance
case pending before the Complainant. When the case was called out, the Respondent and
his Advocate were both absent, and hence, the case was heard ex parte. Respondent-
Advocate, in his personal capacity filed a petition under the Contempt of Courts Act
against the Complainant. In the petition it was alleged that prior to the date of ex parte
hearing of the maintenance case the Complainant was transferred. Instead of handing over
the charge immediately, he went on to hear the case. Therefore the hearing of the
maintenance case was null and void and was liable to be set aside. Further, it was alleged
that even after his transfer to a different Court, the Complainant continued to hold the
charge of the Court, which amounted to be disregard of the order of the High Court and
therefore it amounted to contempt of court. In support of his allegations, the Respondent
made several other allegations against the Complainant. These allegations were scandalous
in nature. The petition was filed before the Complainant himself. As the case was against
Complainant himself, he promptly forwarded it to the District and Sessions Judge, who in
turn, forwarded it to the High Court. After going through the petition the High Court
directed the Complainant to institute a complaint before the S.B.C. of Andhra Pradesh
against the Respondent for making such scandalous allegations against a judicial officer.
Thus the Respondent was guilty of professional misconduct by making scandalous
allegations against the judicial officer by name, and thereby becoming party to foment
litigation and bringing down the reputation of a judicial officer.

Respondent’s Case: The Respondent in his defence did not deny the fact of filing
the Contempt of Court Petition. But he stated that the petition was filed as an Advocate for
the Respondent in the maintenance case and not in his personal capacity as alleged in the
complaint. Hence he has not committed any professional misconduct. He alleged that there
was a conspiracy between the Complainant and the District and Sessions Judge to victimise
him.
PROCEEDINGS

The Respondent did not co-operate with both the D.C.s in conducting the proceedings.
He did not appear before them and continuously went on writing
lettersseeking adjournment on one pretext or the other. Subsequently he was appointed as
Munsiff. S.B.C. communicated its order to appear before it to him through the District and
Sessions Judge under whom the Respondent was working. In spite of the advice of the
District and Sessions Judge the Respondent did not appear before the S.B.C. Instead he
found fault with the State Bar on itself in not giving him sufficient opportunity to be
present before it. In the meanwhile the period of 1 year expired and the case stood
transferred before the B.C.I.

Even before the B.C.I. he was not present and therefore the B.C.I. went on to hear his
case ex parte and expressed its strong displeasure over the conduct of the Respondent in
not giving respect to the statutory bodies like the D.C.s of S.B.C. and the B.C.I.

From the contents of the petition it could be very easily seen that the allegations made
by the Respondent against the Complainant were scandalous and unwarranted. The
petition was not signed by the party whom the Respondent alleged to represent, but was
signed only by the Respondent. The petition was filed before the Complainant himself
joining him as a Respondent therein. This was also undesirable. He could have
approached higher authorities. If he was aggrieved by the order of the Complainant he
could well have preferred appeal or revision to the higher courts. B.C.I. cited a decision
of the Madras High Court reported in 1959 MLJ 329, wherein it was observed by the Full
Bench of the High Court that an Advocate is a responsible officer of the Court and a
member of the profession and would be guilty of grave professional misconduct if
knowing that certain allegations are false he nevertheless allows the allegations to be
made in the affidavit filed by his client. In the instant case the matter was even more
serious because the Respondent himself had made the allegations himself.

ORDER

Therefore the B.C.I. had no doubt that the Respondent had committed professional
misconduct in filing a petition against the presiding officer with serious allegations, and
therefore is liable to be punished under sec. 35 of the Advocates Act, 1961.

But the B.C.I. desisted from passing a sentence in view of the fact that the Respondent
had since been appointed as a judicial officer and had ceased to be an Advocate. The
order was referred to the High Court of Andhra Pradesh for necessary action.
CASE 42
(Sending Notice to the Presiding Officer for Passing Remarks against the Advocate in the
Judgement)
A.K. vs. R.S.15(1&2) 1988 IBR 200

D.C. Appeal No. 41/1986

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 17th October, 1987

FACTS OF THE CASE

Complainant’s Case:

In the judgement in a suit conducted by the Respondent-Advocate before the Complainant,

the Complainant made certain remarks against the Respondent Advocate. The Respondent
issued a notice under sec. 80 Code of Civil Procedure. In the notice the Respondent
claimed damages from the Complainant for making such remarks in the judgement. The
Complainant took a serious note of the same and represented the matter to the High Court
with the observation that the Respondent had committed professional misconduct in so
sending notice to him. The High Court directed him to refer the matter to the Andhra
Pradesh S.B.C.. Therefore the S.B.C. initiated suomotuinquiry against the Respondent.

Respondent’s Case:

The Respondent admitted that he had issued the notice to the Complainant, but that was
because of anxiety. He did not have any intention to proceed against the Complainant. He
also brought it to the notice of the B.C.I. that he had been prosecuted for contempt of court
and in those proceedings he had tendered his apology to the High Court. He also said that
he was about 70 years of age and actually did not mean anything against the Complainant.

PROCEEDINGS

The D.C. of the S.B.C. felt that the Act on the part of the Respondent was highly unethical.
It opined that if the Advocate was aggrieved by the findings of the Complainant he should
have taken some other recourse for getting the relief. He should not have sent notice to the
Presiding Officer. It referred to the duty of the Advocate under section 49(1)(c) in Chapter
II of Part VII. Rule 1 clearly states the limit by which the Advocates can conduct himself
as a member of a noble profession. Hence he was held guilty of professional misconduct
and was reprimanded.

D.C. of the B.C.I. also formed the opinion that the Respondent-Advocate had exceeded
his limits. But it accepted his submission that the same was done only in a state of anxiety
without any intention to insinuate the Complainant. The Respondent had already tendered
his apologies to the High Court. Under these circumstances B.C.I. was of the opinion that
the act of the Respondent was only a bona fide mistake not amounting to professional
misconduct.

ORDER

Therefore the appeal was allowed setting aside the order of the Andhra Pradesh
S.B.C.. The D.C. of the B.C.I. expressed that the Respondent should behave himself
properly in future, and should not indulge in any such activities. It cautioned him that he
should behave as a member of the noble profession.
CASE 43
(Conduct Unbecoming of an Advocate)

R.G. vs. M.S.16(1) 1989 IBR 99

B.C.I. Tr. Case No. 16/1988

Shri L.P. Bhargava (Chairman) and Shri N. Rangaraj and Shri S.N. Tandon (Members)

Judgement Dated 16th October 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant was sitting at the Court compound near the office of the Respondent-
Advocate waiting for his wife. Respondent-Advocate all of a sudden came to him and
without any pretext abused him and also threatened him of dire consequences.
Complainant moved away from that place and searched for his wife. He saw her sitting in
the canteen with the junior of the Respondent. Before the Complainant could approach the
place, his wife and the junior Advocate had disappeared from that place. Hence the conduct
of the Respondent is unbecoming of an Advocate, and therefore, he should be dealt with
according to the law.

Respondent’s Case:

All the allegations made in the complaint were denied by the Respondent. He had nothing
to do with the alleged incidents. In fact, the lady alleged to be the wife of the Complainant
is not his wife at all. She was, in fact, a client of the Respondent’s junior and on that
particular a day she was being chased by the Complainant who was an anti-social element.
She entered the Respondent’s office seeking his help. In order to help the lady in distress,
the Respondent warned the Complainant and sent him away.

PROCEEDINGS

S.B.C. sent several notices to the Complainant, but he did not appear before the D.C. In the
process, there was efflux of time stipulated under the Advocates Act 1961. Therefore the
case stood transferred before the Bar Council India. Before the B.C.I. the Complainant
appeared and submitted that he was not pressing thecomplaint and that it was not directed
against the Respondent. He had no grievance against the Respondent. By mistake his name
was mentioned as the Respondent. The Complainant wanted to seek the remedy against
some other person. B.C.I. was not satisfied with the explanation given by the Complainant
and took a very serious view of conduct of the Complainant in dragging the Respondent
who appeared to be a very well experienced and senior member of the bar into a frivolous
case. The averments made in the complaint were also found the to be very flimsy.

ORDER

Hence the D.C. of the B.C.I. dismissed the complaint with costs.
CASE 44
(Conduct Unbecoming of an Advocate)

N.S. vs. K.V.16(2) 1989 IBR 258

D.C. Appeal No. 14/1988

Shri B.N. Bajpayee (Chairman) and Shri S. Sethuraman and Shri N. Rangaraj (Members)

Judgement Dated 3rd September 1988

FACTS OF THE CASE

Complainant’s Case:

Complainant is also an Advocate of High Court and is a senior member of the bar with 33
years of experience. On 12 November 1986, at about 1.50 p.m. when he was going to the
Bar Association, the Respondent-Advocate informed him that he had made a mention of a
case before the judge. In that case the Complainant represented the petitioner and the
Respondent represented the Respondent therein in the capacity of a Government Pleader.
Complainant said that he had no notice of the mention and that “he will see to it”. On this,
the Respondent somehow got infuriated and without any reason or justification abused the
Complainant and used vulgar words. Without any reason or justification the Respondent
insulted the Complainant and used the filthy, vulgar and abusive language against the
senior member of the bar. This has lowered the dignity of the profession and therefore
Respondent has committed misconduct.

Respondent’s Case:

The Respondent filed his defence denying the allegations made in the complaint. He
contended that he mentioned a particular case to be posted before the judge and to this the
Complainant said that “he will see to it” and menacingly gesticulated. Since the
Complainant had said that “he will see” and referred to him, he got angry and there was
heated exchange of words between them. But he never used anyabusive language against
the Complainant. Anyway, he expressed his deep regret for what all happened between
them.

PROCEEDINGS

From the pleadings of the parties the B.C.I. framed the following issues:

1. Whether the Respondent used abusive language against the Complainant?

2. Whether the use of those words amounted to Professor misconduct?

The S.B.C. found both the issues against the Respondent and found him guilty
of misconduct. The apology tendered by the Respondent was not accepted by
the Complainant. In the circumstances, the D.C. of S.B.C. passed order suspending the
Respondent from practice for a period of six months.

In his evidence that Complainant stated that he enrolled himself as an Advocate of Madras
High Court and had a good practice. He was a freedom fighter. He has no grudge or
grievance against the Respondent and there were no ill feelings. He admitted that he had
said “I will see to it”. But contended that he did not warrant use of foul language on the
part of the Respondent.

In the cross-examination a suggestion was made to the Complainant that he had

some personal cases under the Urban Land Ceiling Act, and had approached the
Respondent who is a Government Pleader for a favour. When he did not oblige the
Complainant had filed this false complaint to prevent him from appearing in those cases as
Government Pleader. This was denied by the Complainant.

In his evidence the Respondent stated that he too was an Advocate on the bar of a long-
standing and hence he was appointed as the Government Pleader. He represented
as Government Pleader in many cases in which the Complainant was personally interested
and Complainant lost in several cases because of the Respondent’s vigilant representation
in those cases. Therefore, Complainant had grudge against the Respondent.

As to the incident which took place on the alleged day, Respondent said that there
was heated exchange of words and regretted about them if they had hurt the
Complainant’s feelings in any manner.

From the records of the case D.C.s of the Bar Council’s came to the conclusion that
the Respondent uttered vulgar words against the Complainant. In Chapter II of the Rules
framed under section 49(1)(c) of Advocates Act, 1961, with reference to the Standards of
Professional C and Etiquette, it has been stated in the preamble that:

“An Advocate shall, at all at times, comport himself in a manner befitting his status as an
officer of the Court, a privileged member of the community, and a gentleman, bearing
in mind that what may be lawful and moral for a person who is not a member of the bar, or
for a member of the bar in his non-professional capacity may still be improper for
an Advocate. Without prejudice to the generality of foregoing obligations, an Advocate
will shall fearlessly uphold the interests of his client, and in his conduct conform to the
ruleshereinafter mentioned both in letter and spirit. The rules hereinafter mentioned
contain canons of conduct and etiquette adopted as general guides; yet the specific mention
thereof shall not be construed as a denial of others equally imperative though
not specifically mentioned.”

Accordingly, an Advocate is expected to maintain the highest standards of behaviour, both

to his client and colleagues. Even assuming that there is no professional misconduct, there
is certainly “other” misconduct. The apology tendered by the Respondent was not accepted
by the Complainant as he felt humiliated and hurt by the words used by the Respondent
and also by the questions put to him in his cross examination. As the Respondent had
tendered unconditional apology and withdrawn the suggestions made to the Complainant in
the cross-examination it appeared to the Bar Council that the Respondent was really
repenting in for his behaviour. Hence it was felt to be not necessary to suspend him from
practice and that reprimand was sufficient.

ORDER

D.C. of the B.C.I. upheld the order of D.C. of the S.B.C. on misconduct but set aside the
suspension order and reprimanded the Respondent under section 35(3)(b) for the offence
committed by him.
CASE 45: (Lowering the Dignity of the Profession)

N.A.H. vs M.R.S., 16(3&4) 1989 IBR 572

D.C. Appeal No. 10/1988

Shri V. Rajayah (Chairman) and Shri N. Rangaraj and Shri V.R. Reddy (Members)
Judgement Dated 26th November, 1988

FACTS OF THE CASE

Complainant’s Case:

The Respondent-Advocate while practising as an Advocate obtained a licence for running

an arrack shop in his name. He was carrying on the sale of arrack and running the shop.
This amounted to professional misconduct and he should be dealt with in accordance with
law.

Respondent’s Case:

In his defence, the Respondent admitted obtaining the licence for running arrack shop, but
submitted that he was only a benamidar to his father and brother who were actually
running the business. As his father and brother were jobless, in the order to help them he
obtained the licence. As he was a member of the ruling AIADMK, which was helping its
members by issuing such licences, he could easily get the licence in his name. He could not
have got the licence in the name of his father or brother. As he had won a case against the
Complainant in a criminal court and also because there was some dispute between his
family and the family of the Complainant, the Complainant had instituted this case at the
instance of some of the members of the bar who were jealous about his progress in the
profession.

PROCEEDINGS

The Bar Council framed the following issues:

1. Whether the Respondent has obtained licence in his name as benamidar for his father
and brother?

2. Whether lending name for the purpose of getting a licence for running arrack shop
would amount to professional misconduct?

3. If so, questioned what punishment?

Respondent admitted that he had obtained the licence for running arrack shop and also that
he had been practising at the same time. But he stated that he had obtained the licence for
the sake of his father and brother. He stated that he had separated from his father and
brother by an oral partition. He produced affidavits of his father and brother stating
categorically that the Respondent had nothing to do with the business. He had also filed a
deed of partition between himself and his father and brother. He stated that he had to obtain
a licence in his name because he could get it as a member of the ruling AIADMK, whereas
his father are brother could not. The Respondent expressed his regret for having lent his
name without thinking of the consequences.

Rule 47 of the rules of the Bar Council is very much clear:

“An Advocate shall not personally engage in any business but he may be a sleeping partner
in a firm doing business provided that in the opinion of the appropriate State Bar Council
the nature of the business is not inconsistent with the dignity of the profession.”

Therefore, D.C. of the S.B.C. was of the opinion that there cannot be any doubt that
by lending his name for the arrack licence the Respondent had committed professional
misconduct. The D.C. also expressed doubt as to the genuineness of the regret as it did not
come in the initial stages but was put forth only at the arguments stage. It wasalso observed
that the case of the Respondent is all false. This observation was specifically
challenged in the appeal on the ground that the case of the Respondent did not have
any inconsistency or controversy but was very much cogent. B.C.I. accepted this view as
his evidence was not shattered away by the Complainant. In any case, B.C.I. observed that
the lending of name for running arrack shop itself amounted to professional misconduct
whatever may be the facts, because the same is
inconsistent with the dignity of the legal profession.

In respect of the sentence passed by the D.C. of the S.B.C., the D.C. of the Bar Council of
the India found that it was too much excessive. Respondent has separated from his father
and brother and was living with his wife and children. He only wanted to help his father
and brother. He was not a beneficiary of the business. Appellant had expressed his regret
and also prayed for mercy as otherwise his life would be in distress as it would be very
difficult for him to support the family consisting of wife and children, if such severe
sentence of suspension was not set aside. He had also undertaken not to indulge in any
such illegal activities in future.

ORDER

The sentence of the D.C. of the S.B.C. suspending the practice of the Respondent for
a period of 5 years was held to be very much excessive. The same was reduced
to reprimand.
CASE 46: (Acting in a Case in Which the Advocate has Pecuniary Interest, Sharing Profits
of Case and Lending Money to the Client)
D.R.M. vs. S.A.M. and I.M.K.16(3&4) 1989 IBR 532

D.C. Appeal No. 23/1988

Shri V.C. Mishra (Chairman) and Shri B.N. Sharma and Shri Viresh Mishra (Members)

Judgement Dated 16th July, 1989

FACTS OF THE CASE

Complainant’s Case:

Complainant has levelled three charges against the Respondents:

1. They have acted and the pleaded in a case in which they themselves have the pecuniary
interest, which is prohibited by Rule 9 of the Rules framed under Sec. 49 (1) (c) of the
Advocates Act, 1961.

2. They have agreed to share the proceeds of the litigation.

3. They have lent the money to their clients for the purpose of legal proceedings in which
they are engaged by their clients.

B.C.I. opined that there was no evidence on record to substantiate the second and
third charges. Therefore it elaborately dealt with the first charge only and preferred to
discuss the cases of the two Respondents separately.

Respondent No. 2’s Case:

The allegations against Respondent No. 2 was that well before the beginning of his practice
he was a party to an agreement for sale. This agreement for sale was in respect of a joint
family property and the Respondent No. 2 was one of the vendees. The vendor in the
agreement of sale filed the suit against theother members of the joint family for partition
and possession of their share in the property. During the pendency of the suit the said
vendors transferred their share in the joint family property to three persons, one of whom
happened to be the wife of Respondent No. 1. Even on that date Respondent No. 2 was not
an Advocate. Subsequently he became Advocate and appeared for the Defendants in that
suit. Before so appearing in the suit he gave up his right under the said agreement for sale
and as such he did not have any pecuniary interest in the subject matter of the suit.
Therefore no case is made out against him.
Respondent No. 2’s Case: Respondent No. 1 proved that his wife had her own power
loom and is an Income Tax payer, and that she had purchased the property out of her
own funds.

PROCEEDINGS

Rule 9 of the B.C.I. Rules on Standards of Professional Conduct and Etiquette reads as
under:

“An Advocate should not act or plead in any matter in which he is himself pecuniarily
interested.

Illustration:

I. He should not act in bankruptcy petition when he himself is also a creditor of the
bankrupt.

II. He should not accept a brief from a company of which he is a director.”

B.C.I. observed that this rule has to be interpreted in a pragmatic manner having regard to
the object of framing this rule. In the opinion of the B.C.I. the object of framing this rule is
to prohibit an Advocate from appearing in a case in which his pecuniary interest is liable to
affect the performance of his duties as an Advocate in that case. If the Advocate is a
creditor of the bankrupt, he cannot conduct the case fairly as an Advocate for the bankrupt
because he will be benefited by losing the case. Similarly a director of the company who is
also an Advocate for the company will be tempted to charge excess fee and get it
sanctioned as the director of the company. Rule 9 does not prohibit an Advocate from
appearing in a case in which he is a party, on his own behalf. Therefore there is no reason
to say that he is prohibited from appearing for his own relation such as his wife or children.
It would be unreasonable to interpret Rule 9 to say that the near relations like a parents,
wife, children, brothers or sisters, etc. of an Advocate of are compelled to engage another
Advocate and cannot avail as the professional competence of an Advocate who is their near
relation and in whom there are likely to have much more confidence.

ORDER

Therefore B.C.I. upheld the order of the S.B.C. and held that the Respondent No. 1 was
not guilty of misconduct. Both the Respondents were held not guilty of misconduct and the
appeal was dismissed. Though the complaint appeared to be wholly mala fide, taking the
lenient view B.C.I. made the costs easy on the parties.
CASE 47(Conviction for Offence involving Moral Turpitude)

Bar Council of Maharashtra vs. G.L.16(3&4) 1989 IBR 520

B.C.I. Tr. Case No. 10/1986

Shri C.L. Sachdeva (Chairman) and Shri N.K. Jain and Shri S.C. Chawla
(Members)Judgement Dated 6th May, 1988

FACTS OF THE CASE

The Respondent-Advocate was legal adviser to the Government of Maharashtra, i.e.,

M.S.R.T.C. In that capacity, he accepted some illegal gratification and was arrested,
tried, convicted and punished under sec. 161 I.P.C. r/w sec. 5(1)(d) and sec. 66 (2) of the
Prevention of Corruption Act. His appeal was rejected by Bombay High Court and his
application for Special Leave to Appeal was summarily rejected by the Supreme Court.
After serving the sentence, the Respondent continued to practise.

After about 8 years Bar Council of Maharashtra received an anonymous letter alleging
the above facts and made an inquiry with the High Court. The Additional Registrar of
Bombay High Court confirmed the facts. Up on this, the S.B.C. initiated disciplinary
proceedings against the Respondent, which stood transferred before the D.C. of B.C.I. as
they were not completed within the statutory period of one year.

OPINION OF THE B.C.I.

Sec. 24A(1) of the Advocates Act, 1961 provides as under:

“No person shall be admitted as Advocate on a State Roll -

a) if he is convicted of an offence involving moral turpitude;

b) if he is convicted of an offence under the provisions of the Untouchablity (Offences)

Act, 1955 (22 of 1955);

c) if he is dismissed and removed from employment or office under the state on any charge
involving moral turpitude.”

Explanation: In this clause, the expression “State” shall have meaning assigned to it under
art. 12 of the Constitution:
Provided that disqualification for enrolment as aforesaid shall cease to have effect after a
period of 2 years has elapsed since his release or dismissal or, as the case may be,
removal.”

The bare reading of section 24A(1)(b) will reveal that if a person is convicted of an
offence involving moral turpitude he is the disqualified from becoming an Advocate. But
this disqualification ceases to have effect after two years from his release. B.C.I.
interpreted this provision as to be applicable to an already enrolled Advocate also.

The Respondent was convicted of an offence envisaged under sec. 24A(1)(b) of

Advocates Act, 1961. Hence he was disqualified from continuing on the Rolls of
Maharashtra S.B.C. from the date of conviction till the lapse of two years from the date of
his release. But he did not inform the fact of his conviction to the S.B.C. He ought to have
intimated this fact to the S.B.C. immediately after his appeals were rejected. B.C.I.
observed that the conduct of the Respondent was highly depreciable and deplorable, and
deserved extremely deterrent punishment.

However, Respondent was an old aged person, of 75 years age, and was suffering
from various diseases. He started practice only after about to 2½ years after his release. He
has not been accused of any misconduct, etc thereafter, and in fact was rendering free
services to certain organisations. He had a family dependent upon him. Keeping in mind
all the circumstances and especially the fact that there was a lapse of 8 years from the
date of his release, B.C.I. was inclined to take lenient view.

ORDER

Under the circumstances, Bar Council felt that it would serve the ends of justice if the
Respondent was reprimanded with admonition instead of punishment. It was also made
clear that this decision was not forming the precedent as the view was taken only in the
special facts and circumstances of the case.
CASE 48: (Working for Political Ideology and Conviction for Offences Involving
Moral Turpitude)
V.N. vs Bar Council of Maharashtra, 15(1&2) 1988 IBR 182

D.C. Appeal No. 45/1974

Shri L.P. Bhargava (Chairman) and Shri P.H. Somayajulu and Shri V.R. Reddy (Members)
Judgement Dated 27th November, 1987

FACTS OF THE CASE

Complainant’s Case:

The Respondent-Advocate was tried and convicted for committing offences under sec.
121A, 102B, r/w secs. 302, 122 and 124A r/w secs. 109 and 114, and was sentenced to
suffer imprisonment for varying periods up to two years. The Respondent-Advocate
preferred appeal from this order to the Bombay High Court. The order was confirmed by
the Bombay High Court, but the sentence was reduced to which the Respondent-Advocate
had already undergone because she was in jail as an under trial for about two years.

Respondent’s Case:

The Respondent claimed that she was a member of a political party and was professing an
ideology which was not banned by law. She was convicted for a political offence which is
quite different in nature from other offences under the Indian Penal Code, which involve
moral turpitude. She has already been punished by the criminal courts for having
committed the offence and she cannot be again convicted by the D.C. of either S.B.C. or of
the B.C.I. for the same offence and that would amount to double jeopardy.

The following cases were cited by the parties in support of their cases:

Complainant Respondent
22 BLR 13 AIR 1963 All 527
36 BLR 1136 AIR 1966 Punj 393
AIR 1936 Cal 158 AIR 1965 Punj 433
AIR 1934 Rang 33 AIR 1959 All 71
AIR 1924 Mad 129 AIR 1966 Punj 393
AIR 1931 Nag 33 AIR 1936 Cal 157
AIR 1963 SC 1313

PROCEEDINGS
The expression “moral turpitude” is not defined anywhere. The rulings cited by the
Respondent indicated various factors which should be considered in deciding whether
any particular act or offence committed by any person would involve moral turpitude.
The following were the main basis of decision as to whether there is moral turpitude:

1. Whether the act leading to a conviction is such as could shock the moral conscience of
the society in general;

2. Whether the motive which led to the act is a base one and whether on account of the act
having been committed the perpetrator could be considered to be to be of depraved
character or a person who was to be looked down upon by the society.

The meaning of the phrase “moral turpitude” depends on facts and circumstances of each
case. It may mean doing an act contrary to justice, honesty and modesty and of wicked
nature. It may also mean doing an act contrary to his duty to society in general due to
vileness and depravity. On the analysis of the decisions the principle deductible was that
the test applicable in such cases was whether the Advocate concerned is unworthy to
remain a member of this profession and is unfit to be entrusted with the responsible work
of an Advocate. The speech of the Respondent showed the object of conspiracy to exhort
the people of the country to collect arms and overthrow the government a established by
law, through armed conflict. She had also published some posters which were designed to
incite the public. This showed that she was guilty of misconduct involving moral turpitude.
It is true that the constitution does not prohibit any person, much less an Advocate, from
professing an ideology which is not banned by law. If working for that ideology
theRespondent acts in a manner discussed above, it amounts to misconduct. Therefore
the offences committed by the Respondent to could not be said to be political offences
only. The contention of the Respondent that she could not be punished twice for the same
offence was held to have no force. She was punished by criminal courts under the
Indian Penal Code. But at the same time she was also guilty of professional misconduct
under Advocates Act. Therefore there was no question of double jeopardy, as the nature of
the two proceedings are quite different.

ORDER
Therefore, the appeal was dismissed. The order of the D.C. of the Bar Council
of Maharashtra was confirmed and the appellant was held guilty of misconduct as
defined under section 35 of the Advocates Act, 1961, and the reprimand passed by the D.C.
of the Bar Council of Maharashtra was confirmed.
CASE 49: (Fictitious Compromise by Forging Documents)

M.P. vs. B.P.16(1) 1989 IBR 102

B.C.I. Tr. Case No. 2/1988

Smt. Ramani Natarajan (Chairman) and Shri R. Muthu Krishnana and Shri D.V.
Patil (Members)Judgement Dated 25th March 1989

FACTS OF THE CASE

Complainant’s Case:

The name of Complainant’s wife was recorded in revenue records as the tenant of a land.
Parents of the Respondent have nothing to do with the said land. The Respondent filed a
consolidation case under sec. 9(a)(2) of the Consolidation of Holdings Act, in the Court of
Consolidation Officer, Naugarh, Dist: Basti. Complainant’s wife was impleaded as a
defendant in that case. But no notice was served upon her. On the other hand, a fictitious
compromise signed by some impostor was filed by the Respondent. On the basis of this
false compromise petition, a compromise decree was drawn and records were accordingly
changed in the names of the Respondent’s parents. Complainant’s wife has never signed
the compromise. Hence the Respondent has committed professional misconduct in
bringing about such a fictitious compromise.

Respondent’s Case:

All these allegations were denied by the Respondent. He was not the lawyer for his parents
and has nothing to do with the compromise. In the above-mentioned case the relations
between the parties have been strained, and hence to harass the Respondent this false
complaint has been filed against the Respondent. Both the parties stated that the
compromise has been challenged by the Complainant and the same is pending before the
superior officer.

PROCEEDINGS

The only issue before the B.C.I. was:

Whether the Respondent was in any manner concerned with the alleged compromise?

The rival parties chose not to lead oral evidence. They filed their evidence through their
respective affidavits. Complainant did not produce any other evidence. The Respondent
produced the copies of vakalatnamas filed by two different Advocates, one on behalf of
his father and the other on behalf of his mother. He also filed a copy of the compromise
and a copy of order of the Consolidation Court. The order made it further clear that the
Respondent was in no way concerned with the case.

ORDER

On the basis of the material before it, it did not appear to the D.C. of the B.C.I. that the
Respondent was guilty of misconduct. As a result, the complaint was dismissed with an
observation that Complainant would be at liberty to file fresh complaint if he found any
new evidence in the course of the matter pending before the Superior Officer in respect
of the compromise petition.
CASE 50: (Filing Forged Vakalatnama, Representing a Client without Authority)

C vs. M14(4) 1987 IBR 753

B.C.I. Tr. Case No. 57/1987

Shri C.L. Sachdeva (Chairman) and Shri V.C. Mishra and Shri O.P. Sharma (Members)
Judgement Dated 30th December, 1987

FACTS OF THE CASE

Complainant’s Case:

Complainant’s husband filed a divorce petition against her. The summons of the case was
never served up on her. She was not even aware of these divorce proceedings. The
Complainant had filed a suit for permanent injunction against her husband for restraining
him from contracting a second marriage. In that case her husband produced a divorce
decree dissolving their marriage. Surprised by this, she got the records examined through
her counsel and found that the Respondent-Advocate had filed a false vakalatnama on her
behalf in the divorce case and had conducted the case without her knowledge, much less
her authority. She being an illiterate lady could not sign and she used to put her thumb
impressions. Therefore the signature on the false vakalatnama was not her signature. The
Respondent in collusion with her husband represented her in the case with fabricated and
forged documents and lost the case deliberately. Thereby he had committed misconduct.

PROCEEDINGS
The Respondent refused the notices sent to him by the D.C. of the S.B.C. and also did not
choose to appear before the D.C. of the B.C.I. Complainant also changed the address and
did not intimate the change of address to the B.C.I. or to the S.B.C. Therefore the case was
decided on records.

The allegations made in the affidavit filed by the Complainant remained unrebutted
and therefore they were accepted as true by the B.C.I. Therefore it came to the conclusion
that the Respondent was guilty of serious misconduct of a very grave nature. He had filed
forged vakalatnama and represented the Complainant without her authority
and knowledge.

ORDER
Therefore the Respondent-Advocate was suspended from practice for a period of
six months. The D.C. of the B.C.I. took lenient view because the Respondent-Advocate
hadput in only five years of practice.
CASE 51:(Other Misconduct by Making Allegations Against Various Authorities)

A vs. R24(3&4) 1997 IBR 207

D.C. Appeal No. 43/1996

Shri D.V. Patil (Chairman) and Shri S.K. Karavendhan and Smt. Shobha N.
Shinde (Members)
Judgement Dated 18th May 1997

FACTS OF THE CASE

Complainant filed a complaint before the Tamil Nadu S.B.C. that certain applications
in the form of complaints addressed to various authorities by the Respondent amounted
to “other” misconduct. Respondent raised a preliminary issue that there was no nexus
or proximity between his standing as a lawyer and the application made by him to various
authorities and hence the D.C. had no jurisdiction to go into the merits of the case.
The D.C. of S.B.C. accepted this contention and dismissed the complaint by its order dated
10.8.1996. Against this order of the S.B.C. the present appeal was preferred.

PROCEEDINGS

The Advocate for Complainant argued that when the Tamil Nadu S.B.C.
hadpassed resolution that there was a prima facie case of misconduct and referred the
matter to the D.C., D.C. could not have in law dismissed the said complaint, without
hearing it on merits. He also argued that though the Respondent was called upon to file his
defence, he never filed it and hence no issues could be framed. Therefore, the D.C. could
not have decided the case on preliminary issue.

Both these arguments were rejected by the D.C. of the B.C.I. On the first ground it
held that, just because S.B.C. has passed a resolution for referring the matter to the D.C.,
the D.C. does not lose its jurisdiction to decide whether it has jurisdiction or not
and whether the case is maintainable or not. B.C.I. drew an analogy from
criminal prosecution. Merely because a prosecuting agency comes to the conclusion that
there is sufficient evidence to file the charge sheet against the accused, trial Court does not
lose its jurisdiction to decide an objection raised by accused as to the jurisdiction of the
Court or maintainability of the prosecution. Further, the S.B.C. did not have the benefit of
the preliminary objection raised at a later stage. If the same were raised before the S.B.C.,
probably the S.B.C. might not have referred the matter to the D.C.
On the second point also the D.C. of the B.C.I. held that it is not mandatory for the
Respondent to file his defence. Again an analogy was taken from the criminal
prosecution. An accused need not open his mouth. Initial burden of proving his guilt is
on the prosecution or Complainant as the case may be. Here also burden of proving the
misconduct by the Advocate is on the Complainant. Respondent-Advocate need not file
his defence. It is sufficient if he cross-examines the witnesses of the Complainant and
thereby shows that there is no case of misconduct made out against him. Similarly, he
can also show that there is no case against him, which requires replying to.

The Tamil Nadu S.B.C. had held that if the complaints made by the Respondent-
Advocate amounted to defamation, the Complainant was free to approach civil and
criminal Courts, and that before the Advocate is tried for “other” misconduct, such
misconduct should have some nexus or proximity with discharge of professional duties,
e.g. soliciting advertising, setting bribe, bringing judges, purchasing decrees, etc. as has
been decided by S.C. in various cases. D.C. of B.C.I. differed on both points and held
that merely because the doors of Civil and Criminal Courts are open to the Complainant,
it does not mean that the parallel remedy allowed under sec.35 of Advocates Act, 1961 is
not available to him. Further, categories of “other” misconduct are not closed. The case
law is only illustrative and confined to its own facts, and is not exhaustive. New category
of “other” misconduct could arise in the changing time. Life is not static and so also the
ingenuity of a person to commit misconduct is not limited. Under such circumstances,
case law is of a very limited value.

However, D.C. of the B.C.I. still upheld the conclusion reached by D.C. of the Tamil
Nadu S.B.C. on a different count. It carefully went through the charges accompanying
the complaint. They were made by the Respondent against the Madurai Institute of
Social Sciences. They were addressed to authorities such as UGC, Madurai Kamraj
University, C.B.I., the Ministry of Welfare. Home Secretary, Delhi, IG Crimes, Madras,
Madurai Corporation, and the Deputy Registrar, Tamil Nadu Registration Department.
They were all in respect of the functioning and mismanagement of M.I.S.S. They were
directed to the proper persons who were directly concerned with the mismanagement
and did not appear to be made just to fight the institute or any of its officers including
the Complainant. The Advocate for Complainant failed to show malice in making the
complaints. They were made only to the concerned authorities and not before the general
public. Their object was to rectify the mismanagement. It was brought to the notice of
the D.C. of the B.C.I. that in pursuance of these complaints, concerned authorities had
initiated enquiries and the same were still pending.

Advocate for Complainant argued that an Advocate must be a gentleman and he must
depict himself in a manner befitting a gentleman, but failed to pinpoint the so-called
ungentlemanly acts on the part of the Respondent.
Advocate for Complainant also argued that the Respondent was not acting for any client,
but had undertaken a so-called clinging operation of his own. This was rejected by
B.C.I.observing that it is difficult to accept that an Advocate may act only for clients and
not
for himself. It further observed that an Advocate must also play a role of a vigilant citizen
to point out the evils prevalent in the Society and in institutions funded by public money
or otherwise. History, particularly of our freedom movement, is full of illustrations of our
brother and sisters from the Bar who fought for the freedom of our country. Thus, role
has not been taken away from the members of the Bar. It would be sad day if one is to
contend that an Advocate is only a mouth-piece of his client and has no voice of his own.

Hence, the D.C. of B.C.I. observed that there was no case of professional or
“other” misconduct against the Respondent. It also observed that the complaints made by
Respondent are against the M.I.S.S. and not against Dr. Raja. In the complaint and
the vakalatnama, the M.I.S.S. was shown as Complainant and Dr. Raja as alternative
Complainant. However, Dr. Raja had not produced any authority to represent the
M.I.S.S.

ORDER

In view of the above reasons, the appeal was dismissed.