Vs. Mustafa Haji Mohamed Yusuf & Ors  INSC 199 (7 April 1993)
S. (J) Mohan, S. (J) Kuldip Singh (J)
1993 AIR 1535 1993 SCR (2)1006 1993 SCC (2) 562 JT 1993 (2) 652 1993 SCALE
of profession--Punishment whether to be commensurate with the degree and
gravity of misconduct.
Act, 1961-Section 38-Appeal-Misappropriation-Proof of--Enhancement of
punishment and direction of Supreme Court to refund of amount pending with
respondent was defendant in a suit. He engaged the appellant as an Advocate.
The suit was compromised on 14.6.77 ordering that out of the amount lying with
the Court receiver, plaintiff was to be paid a sum of Rs. 64,000 and the
balance to be paid to the defendant-respondent and possession of suit-property
to be handed over to the respondent.
the tendency of the suit the Court Receiver inducted a tenant in a suit
property. The tenant filed a suit praying for an interim injunction restraining
the court receiver from handing over possession to the respondent.
suit was continued.
the compromise decree was passed on 14.6.77, the appellant withdrew a total
amount of Rs. 50,379 from the Court receiver. Out of the amount, appellant paid
only Rs.18,000 to the respondent. On 9.1.81 the respondent filed a complaint
against the appellant before the Bar Council of India. On receiving a notice,
the appellant submitted reply.
Disciplinary Committee of the Bar Council rejected certain receipts produced to
evidence payment to the respondent and also the plea of the appellant that the
account books were lost. The Committee suspended the appellant for a period of
two years and further directed to pay a sum of Rs. 500 to the respondent.
this Court the order of the Disciplinary Committee of the Bar Council of India
was challenged contending that the Committee did not properly appreciate the
evidence and that it was incorrect to hold that the 1007 receipt dated 8.8.77
was a suspicious document merely because the account books were not produced.
the appeal, this Court,
Advocacy is not a craft but a calling-, a profession wherein devotion to duty
constitutes the hall mark. Sincerity of performance and the earnestness of
endeavor are the two wings that will bare aloft the advocate to the tower of
success. Given these virtues other qualifications will follow of their own
account. This is the reason why legal profession is regarded to be a noble one.
But it cannot be allowed to become a sorriest of trades. Therefore. an exacting
standard is what is expected of an advocate. [1010 C-D, 1011-C]
The members of the noble profession must set an example of conduct worthy of
emulation. If any of them falls from the high expectations, the punishment has
to be commensurate with the degree and gravity of the misconduct.
Sharasawood on legal profession, Harry R. Blythe cited if? 21 Green Bag 224,
referred to. M. Veerabhadra Rao v. Tek Chand,  Supp. SCC 571, referred to.[1011-C]
The appellant had withdrawn the money from the Court Receiver. None of the
correspondence addressed to the respondent mentioned about the receipt dated
8th of August, 1977. The plea taken by the appellant based on the receipt is
clearly false. The statement of the appellant that the account books had been
lost in transit cannot be believed.
these circumstances this is a clear case wherein the misappropriation by the
appellant has been fully established. [1012-F]
The appellant has been withdrawing the money over 14 years and lit has
illegally retained the amount. Out of a sum of Rs. 50,379 which was admittedly
withdrawn from the court receiver only Rs. 18,000 was paid on different
occasions. Still a sum of Rs. 22,379 is due. [1012-H, 1013- A]
In view of the established finding of misappropriation the proper punishment
will be the name of the Advocate must be struck off the rolls. [1013-B] 1008
When Section 38 of the Advocates Act says, 'deems fit", it must be
construed as to meet the ends of justice.
respondent should not be driven to a civil court for recovery of this amount
even when the appellant has been found guilty. Therefore, it is directed that
there shall be a decree in favour of the respondent (complainant) for a sum of Rs.
22,379 together with interest at 9% per annum from the date of the complaint
till the date of payment 11013 F- G]
APPELLATE JURISDICTION: Civil Appeal No. 6120 of 1983.
the Judgment and Order dated 25.4.1983 of the Disciplinary Committee of the Bar
Council of India in B.C.I. Tr. Case No. 32 of 1982.
Sangal for the Appellant.
Reddy, Addl. Solicitor General, T. Ratnam and D.N. Goburdhan for the
Judgment of the Court was delivered. by MOHAN, J. This is a statutory appeal
under Section 38 of the Advocates Act of 1961.
brief facts are as under:- The respondent engaged the appellant as a counsel in
suit No. 510 of 1964, this was in April, 1976. The suit was ultimately
compromised on 14.6.77. It was ordered that out of the total amount lying with
the court receiver, a sum of Rs. 64,000 shall be paid over to the plaintiff;
the balance was to be paid to the respondent and possession of suit property
was to be handed over to the respondent by the court receiver.
the pendency of the suit the court receiver inducted one Usman Ghani Haji
Mohamed as a tenant. He filed CS No. 7 of 1978 praying for an interim
injunction restraining the court receiver from handing over possession to the
respondent. That suit was continued.
the compromise decree was passed on 14.6.77 the appellant who was the counsel
for the respondent was requested to withdraw the amount lying with the court
receiver and hand over the same to the 1009 respondent. For this purpose a,
letter of authorisation to enable the appellant to receive the amount was also
issued, Pursuant to the letter of authorisation and instructions, a total
amount of Rs. 50,379 was withdrawn by the appellant from the court receiver.
Out of this, he paid only Rs.18,000 and the rest was not paid. Therefore, the
respondent preferred a. complaint before the Bar Council of India on 9.1.81.
The appellant was issued a notice by the Bar Council to which he submitted his
reply. On consideration of his reply and hearing the arguments, the
Disciplinary Committee of the Bar Council of India, was of the view that the
burden of proving the fact that the respondent had paid a sum of Rs. 50,379 lay
on the appellant. Certain receipts produced to evidence payment to the
respondent were not accepted.
plea of the appellant that the account books had been lost was held to be
untrue. Ultimately the appellant was suspended for a period of two years and
further directed to pay a sum of Rs. 500 to the complainant (the respondent
herein). It is against this order the present appeal has been preferred.
counsel for the appellant took us through the impugned order and urged that the
Committee had not properly appreciated the evidence especially the receipts
which were produced by the appellant to evidence the payment. It is incorrect
to hold that the receipt dated 8.8.77 was a suspicious document merely because
the account books were not produced, it would not follow that the payments made
by the appellant could be disbelieved.
pointed out to the learned counsel for the appellant that the order under
appeal is unexceptional and there was no case for interference. We felt that
the order of suspension of two years was not commensurate with the charges of
misappropriation. Therefore, we directed the issue notice to the appellant
which came to be accepted by the learned counsel Mr. Bharat Sangal. Inspite of
the fact that the appellant has not chosen to appear, in order to make over the
payment of the amount voluntarily. Therefore, we are left with no option then
to decide the case ourselves on merits.
Disciplinary Committee of the Bar Council on a proper appreciation of the
evidence disbelieved the so-called receipts evidencing the payment. It has come
to the correct conclusion that the receipt dated 8th of August, 1979 was got up
on a blank signed paper. Hence, the due 1010 execution of the receipt had not
been proved by the appellant. Besides, the statement of the appellant that the account
books had been lost in transit had been rightly disbelieved. Under these
circumstances this is a clear case wherein the misappropriation by the
appellant has been fully established. Once this conclusion is arrived at, the
question is what is the punishment to be imposed? Advocacy is not a craft but a
calling; a profession wherein devotion to duty constitutes the hall mark.
Sincerity of performance and the earnestness of endeavor are the two wings that
will bare aloft the advocate to the tower of success. Given these virtues other
qualifications will follow of their own account. This is the reason why legal
profession is regarded to be a noble one. But it cannot be allowed to become a
sorriest of trades. It will be useful to quote what Sharaswood said of this
profession:- A lower, without the most sterling integrity, may shine for a
while with meteoric splendor;
his light will soon go out in blackness of darkness. It is not in every man's
power to rise to eminence by distinguished abilities.
It is not
in every man's power, with fe w exceptions, to attain respectability,
competence, and usefulness. The temptations, which beset a young man in the
outset of his professional life, especially if he is in absolute dependence
upon business for his subsistence, are very great. The strictest principles of
integrity and honour are his only safety. Let him begin by swerving from truth
or fairness, in small particulars, he will find his character gone-whispered
away, before he knows it. Such a one may not indeed be irrecoverably lost; but
it will be years before he will be able to regain a firm foothold. There is no
profession in which moral character is so soon fixed as in that of the law;
there is none in which it is subjected to severer scrutiny by the public.
well that it is so. The things we hold dearest on earth, out fortunes,
reputations, domestic peace, the future of those dearest to us, nay, our
liberty and life itself, we confide to the integrity of our legal counselors
and advocates. Their character must be not only without a stain, but without
suspicion. From the very commencement of a lawyer's career, let him cultivate
1011 above all things, truth, simplicity and candor. They are cardinal virtues
of a lawyer. Let him always seek to have a clear understanding of his object:
be sure it is honest and right and then march directly to it. The covert,
indirect and insidious way of doing anything, is always the wrong way. It
gradually hardens the moral faculties, renders obtuse the perception of right and
wrong in human actions, weighs everything in the balance of worldly policy, and
ends most generally, in the practical adoption of the vile maxim, "that
the end sanctifies the means." Therefore an exacting standard is what is
expected of an advocate.
court has taken the view in M. Veerabhadra Rao v. Tek Chand,  Supp. SCC
571 as to how in such a case professional misconduct has to be dealt with. In
that case, the advocate committed forgery by attesting false affidavits which
was held to be a serious misconduct. This court pointed out the duties of the
members of the bar in the following passage:- "Legal profession is
monopolistic in character and this monopoly itself inheres certain high
traditions which its members are expected to upkeep and uphold. Members of the
profession claimed that they are the leaders of thought and society. In the
words of Justice Krishna Iyer in Bar Council of Maharashtra v. M.V Dabholkar,
[19751 2 SCC 702 the role of the members of the Bar can be appreciated. He said
at page 718:
bar is not a private guild, like that of 'barbers, butchers and
candlestick-makers' but, by bold contrast, a public institution committed to
public justice and pro bono public service. The grant of a monopoly licence to
practice law is based on three assumptions: (1) There is a socially useful
function for the lawyer to perform, (2) The lawyer is a professional person who
will perform that function, and (3) His performance a,, a professional person
is regulated by himself and more formally, by the profession as a whole. The
central function that the legal profession must perform is nothing less than
the ad- 1012 ministration of justice ('The Practice of Law is a Public
Utility'-'The Lawyer, the Public and Professional Responsibility' by F. Raymond
Marks et al-Chicago American Bar Foundation, 1972, pp. 288-289). A glance at
the functions of the Bar Council, and it will be apparent that a rainbow of
public utility duties, including legal aid to the poor, is cast on these bodies
in the national hope that the members of this monopoly will serve society and
keep to canons of ethics befitting an honorable order. If pathological cases of
member misbehavior occur, the reputation and credibility of the Bar suffer a
mayhem and who, but the Bar Council, is more concerned with and sensitive to
this potential disrepute the few black sheep bring about? The official heads of
the Bar, i.e. the Attorney General and the Advocates-General too are distressed
if a lawyer 'stoops to conquer' by resort to soliciting, touting and other
these are the high expectations of what is describes as a noble profession, its
members must set an example of conduct worthy of emulation. If any of them
falls from that high expectation, the punishment has to be commensurate with
the degree and gravity of the misconduct".
the punishment was increased to one of suspension for a period of five years,
having regard to the gravity of the misconduct and keeping in view the motto
that the punishment must be commensurate with the gravity of the misconduct.
case on hand admittedly the complainant (respondent) does not know English. It
is equally admitted that the appellant had withdrawn the money from the Court
of the correspondence addressed to the respondent mentioned about the receipt
dated 8th of August, 1977. The plea taken by the appellant based on the receipt
is clearly false.
appellant has been withdrawing the money over 14 years and he has illegally
retained the amount. Out of a sum of Rs. 50,379 which was admittedly withdrawn
from the court receiver only Rs. 18,000 was paid on different occasions.
said amount was also spread over and paid on 1013 different occasions. On a
direction of this court a sum of Rs. 10,000 had been deposited by the appellant
which has been withdrawn by the respondent as per order dated 3rd September,
1991. Still a sum of Rs. 22,379 is due.
view of the established finding of misappropriation, we think the proper
punishment will be the name of the Advocate must be struck off the rolls. We
order accordingly. In addition to this the question arises, whether we can
direct the refund of the sum of Rs. 22,379 which still is pending for the
appellant. Section 38 of the Advocates Act says as follows.
to the Supreme Court:- Any person aggrieved by an order made by the
disciplinary committee of the Bar Council of India under Section 36 or Section
37 [or the Attorney- General of India or the Advocate-General of the State
concerned, as the case may be], may within sixty days of the date on which the
order is communicated to him, prefer an appeal to the Supreme Court and the
Supreme Court may pass such order [including an order varying the punishment
awarded by the disciplinary committee of the Bar Council of India] thereon as
it deems fit:
that no order of the disciplinary committee of the Bar Council of India shall
be varied by the Supreme Court so as to Prejudicially affect the person
aggrieved without giving him a reasonable opportunity of being heard]."
"when it says,' deems fit, it must be construed as to meet the ends of
justice. We feel the respondent should not be driven to a civil court for
recovery of this amount even when the appellant has been found guilty by his
own peers which we have also confirmed. Therefore, we direct that there shall
be a decree in favour of the respondent (complainant) for a sum of Rs. 22,379
together with interest at 9% per annum from the date of the complaint till the
date of payment.
appeal is dismissed- in the above terms with costs of the respondent which is
quantified at Rs. 3000 (Rs. three thousand only).
we part with the case we may usefully quote Harry R.
1014 (cited in 21 Green Bag, 224):- "Great God the hour has come when we
must clear The legal fields from poison and from fear; We must remould our
standards-build them higher, And clear the air as though by cleansing fire,
Weed out the damning traitors to the law, Restore her to her ancient place of
awe." V.P.R. Appeal dismissed.