Rao Vs. G.Lingappa  INSC 2 (12 January 1999)
U.C. Banerjee. S.B.Majmudar.J.
appellant who is a practising Advocate has brought in challenge the order
passed by the Bar Council of India under the provisions of Advocates Act, 1961.
holding him guilty of professional misconduct and ordering his suspension from
practice for a period of two years.
facts leading to this appeal deserve to be noted. One G.Rami Reddy had filed a
suit against the respondent-complainant, G. Lingappa and another being 0.S.No. 173
of 1983 on the file of Assistant Civil Judge, City Civil Court, Hyderabad for dissolution of partnership.
suit, the appellant represented the opponent of the present respondent-
complainant. In the suit, the parties negotiated for compromise. As per the
terms of agreement dated 2.7.1984 a compromise memo was filed in the Court. On
the day of compromise, the complainant however was paid an amount of Rs.l2,000/-
cash though he had to receive R3.3,000/- more meaning Rs.l5,000/-. It is the
case of the conplainant-respondent before the Bar Council of the State of
Andhra Pradesh that after the said compromise was entered into, the appellant-
Advocate for the other side called him for a cup of tea in the canteen and persuaded
him to give him a hand loan of Rs.3,000/- as he was in urgent heed for
providing furniture for the School run by his wife. It is the further case of
the respondent that accordingly he parted with Rs.3,000/- against a post dated cheque
dated 8.3.1984 given by the appellant to him. The said cheque being presented
bounced. Despite repeated requests of the complainant- respondent, the
appellant did not refund the said amount. Hence, according to him, the
appellant was guilty of professional misconduct. A complaint was filed before
the State Bar Council of Andhra Pradesh. The appellant contested the proceedings.
After hearing the parties and recording the evidence offered by them, the State
Bar Council came to the conclusion that the appellant was guilty of
professional misconduct and hence he was ordered to be suspended from practising
as an Advocate for a period of two years from the date of- receipt of the
appeal before the Bar Council of India failed as its Disciplinary Committee was
not inclined to take a contrary view.
heard learned counsel for the parties, it is found that all that the
complainant alleged was to the effect that the appellant being an Advocate of
the other side arid after settling the civil dispute between the parties by way
of compromise had persuaded the complainant to part with an amount of Rs.3,000/-
by way of a hand loan.
post dated cheque given by him to the complainant bounced and the appellant did
not repay the amount even thereafter despite repeated request. In our opinion,
these type of allegations even taken at the highest, would show that the
complainant was persuaded to give a hand loan of Rs.3,000/- to the appellant
and that amount was not repaid by him. It is pertinent to note that the appellant
while taking the loan from the respondent on any pretext was not acting in his
professional capacity qua the complainant. He was acting as a needy person and
persuaded the creditor to give him an amount of Rs.3,000/-. If that amount was
not paid back, civil remedy was available to the complainant and if the cheque
had bounced after coming into force of Section 138 of the Negotiable
Instruments Act, it might have resulted in criminal litigation, but however so
far as the professional misconduct is concerned, we fail to appreciate as to
how the Disciplinary Committee of the State Bar Council held that the appellant
qua the complainant had committed any professional misconduct because he had
taken a hand loan from the complainant-respondent and not repaid it.
also to be noted that against the order of the Disciplinary Committee of the
Bar Council of India, this Court as early as on 8.11.1939 issued notice and
suspended the order of the Bar Council of India. The said order is continuing althroushout
and we are informed by learned counsel for the appellant that the appellant is
still practising. By an order dated 9.9.1991 in presence of learned counsel for
the respondent this Court had directed that the appellant shall take step to
deposit a sum of Rs.3,000/- in the Registry of this Court within a period of
four weeks for payment to tne respondent. Office report shows that the amount
was already deposited as early as on 25.9.1991. Learned counsel for the
respondent states that this amount is still not withdrawn. Under these
circumstances, in our opinion, the appellant cannot be said to be guilty of any
professional misconduct. It is also interesting to note that in the very
examination-in-chief before the Disciplinary Committee of State Bar Council the
complainant stated that if Rs.3,000/ is paid to him, he is prepared to withdraw
the complaint. We fail to appreciate how the appellant being a practising
Advocate did not .take up this opportunity to close the chapter as admittedly
he had taken the loan and had not repaid the same to the complainant creditor.
That shows an inadvertant conduct on' the part of the appellant but still it
does not make out any profeasional misconduct. We would have understood if the
appellant was alleged to have misused his position and had taken any money from
his own client and had retained that amount. That would have been a clear case
of professional misconduct view of the decision of this Court in the case of
N.B. Mirzan v. The Disciplinary Committee of the Bar Council of Maharashtra and Anr. reported in (1972) 4 SCC
412. But this is not one case. There was no professional obligation or duty of
the appellant qua respondent complainant who was a third party and who was no
better than a third party creditor qua the appellant.