Bar
Council of Andhra Pradesh Vs. Kurapati Satyanarayana [2002] Insc 475 (15 November 2002)
V.
N. Khare & Ashok Bhan Bhan, J.
Bar
Council of Andhra Pradesh, for short "the State Bar Council", has
filed this appeal against the order of the Disciplinary Committee of the Bar
Council of India in D.C. Appeal No. 39 of 1997 dated 28th March, 1999 by which
the Bar Council of India has set aside the order passed by the State Council
removing the name of Kurapati Satyanarayana, hereinafter referred to "the
Delinquent", from the roll of the State Bar Council as he was found guilty
of grave professional misconduct in the discharge of his duties as an advocate.
O.S.
No. 1624 of 1991 was filed by Sri Gutta Nagabhushanam, hereinafter referred to
"the de-facto complainant", on the file of the Additional District Munsif
Magistrate, West Godavari District, Eluru through the delinquent advocate. The
said suit having been decreed, Execution Petition No. 112 of 1995 was
instituted for realisation of the decretal amount. Delinquent was engaged as
the counsel for the de-facto complainant in the execution proceedings as well.
The Delinquent received a total sum of Rs. 14,600/- on various dates in the
execution proceedings but did not make payment of the same to the de-facto
complainant. On 18th
October, 1996 the
de-facto complainant filed a complaint with the Additional District Munsif, Eluru.
On the said complaint Additional District Munsif, Eluru passed the following
orders:
"Decree
Holder present. Sri K. Satyanarayana absent perused the entire record. The memo
filed by D.H.R. along with original receipt issued by Sri K. Satyanarayana,
Advocate, Dt. 2.4.1996 and the photostat copy of calculation memo dt. 16.8.1996
prepared by Sri K. Satyanarayana, Advocate, which is not signed by D.Hr. and
along with this complaint and counter be submitted to the Secretary, Bar
Council of A.P. in High Court premises, through the Hon'ble District and
Sessions Judge, West Godavari, Eluru for taking necessary action
with covering letter, D. Hr. is informed in open Court." The complaint
filed by the de-facto complainant along with the reply filed by the Delinquent
and the connected documents were forwarded to the Bar Council of the Andhra
Pradesh in the High Court premises for appropriate action. The State Bar
Council took notice of the complaint filed and issued a notice to the
Delinquent.
The
Delinquent in spite of the service of notice did not choose to file a counter.
The State Bar Council referred the matter to its Disciplinary Committee. The
State Disciplinary Committee after examining the witnesses produced by the
complainant came to the conclusion that the Delinquent had received a total sum
of Rs. 14,600/- belonging and payable to the de-facto complainant on different
dates and retained the same with him.
Assertion
of the Delinquent that he had informed the complainant through a post-card
about the receipt of the decretal amount was not accepted. That in spite of an
undertaking (Ex.C-1)dated 24th April, 1996
given in writing by the Delinquent to pay a sum of Rs. 11,000/- to the
complainant, the same was not paid.
The
story put-forth that he paid a sum of Rs. 11,000/- on 4th September, 1996 was not accepted because the
Delinquent failed to produce any receipt given by the complainant evidencing
the payment of the said amount to the complainant. It was noted that only on
19th August, 1997 a demand draft No. 808327 of Rs. 3,600/- and a demand draft
No. 0142169 dated 17th October, 1997 for Rs. 2,900/- drawn on State Bank of
Hyderabad in favour of the complainant were sent. The Committee directed that
the said two drafts be forwarded to the complainant without prejudice to his
any other right, if any. It was specifically mentioned that the payment of the
said two amounts would not obliterate the misconduct of the Delinquent.
The
Delinquent preferred an appeal before the Disciplinary Committee of the Bar
Council of India. The Disciplinary Committee of the Bar Council of India agreed
with the finding of fact recorded by the Disciplinary Committee of the State
Bar Council that the Delinquent had failed to make the payment of Rs. 14,600/-
received by the Delinquent on behalf of the complainant in the execution
proceedings, but came to the conclusion that the Delinquent had not committed
any professional misconduct though there might have been some negligence on his
part which did not involve any moral turpitude. For coming to this conclusion,
the Disciplinary Committee of the Bar Council of India recorded the following
findings:
"One
thing is very clear from the conduct of the appellant that no doubt, he had
withdrawn the money on behalf of the complainant being his counsel, but he
never refused to return the same to the complainant. It has also come in
evidence that the appellant had made part payment of the total amount before
filing of the present complaint by the complainant before the Disciplinary
Committee of Andhra Pradesh. Perusal of the file shows that the appellant could
not make the payment of the remaining amount because of his family
circumstances. There seems to be weight in the arguments of the appellant to
the effect that he could not make the payment of the remaining amount to the
complainant as the said amount was utilised by him on his treatment. This type
of events are very common when some body is in trouble. At this stage, we are
to see as what was the intention of the appellant with respect to utilisation
of the said amount. We are to see whether he had the intention of
misappropriating the money of his client in order to defraud him or he was
compelled by the circumstances in not returning the said amount as and when
demanded by the complainant. During the course of arguments it was brought to
our notice that the appellant had already returned the total decretal amount
with interest to de-facto complainant. He has further brought to our notice
that he was still suffering from serious heart ailment and he has also sought
appointment with a doctor for undergoing surgery in near future. The Committee
is of the considered view that the appellant from the very beginning never
wanted to misappropriate the decretal amount of the de-facto complainant and
the lapse on his part to return the same was because of his domestic
circumstances, as explained." Counsel for the parties have been heard at
length.
The
first point raised before us on behalf of the Delinquent that the appeal filed
by the Bar Council of the Andhra Pradesh would not be maintainable as not being
the "person aggrieved" need not be dilated upon in view of the
Seven-Judge Constitution Bench Dabholkar & Ors., 1975 (2) SCC 702. It has
been held in the said case that the role of the Bar Council is of dual
capacity, one as the prosecutor through its Executive Committee and the other
quasi- judicial performed through its Disciplinary Committee. Being the
prosecutor the State Bar Council would be an "aggrieved person" and
therefore the appeal under Section 38 of the Advocates Act, 1961 would be
maintainable on its behalf.
On
merits we find that the order of the Disciplinary Committee of the Bar Council
of India is unsustainable. It is sad that the Disciplinary Committee of the Bar
Council of India, which is the highest body, to monitor the probity of the
legal profession in the country chose to trivialise and treat a very grave
professional misconduct on the part of the Delinquent lightly by saying that
the Delinquent did not make the payment to the de-facto complainant as he had utilised
the money for his personal need for treatment and that such like instances do
take place when a person is in trouble. It was neither pleaded nor shown by the
Delinquent that he was in dire financial difficulty which promoted him to utilise
the decretal amount for his treatment which was with him in trust. This is an
act of breach of trust. We are firmly of the view that such types of excuses
cannot be entertained being frivolous and unsustainable. Adhernce to the
correct professional conduct in the discharge of one's duties as an advocate is
the backbone of legal system. Any laxity while judging the misconduct which is
not bonafide and dishonest would undermine the confidence of the litigant
public resulting in the collapse of legal system. This is an act of grave
professional misconduct. This Court amongst the various types of misconduct
envisaged for a legal practitioner the misappropriation of the client's money
must be regarded as one of the gravest. It was observed:
"Among
the different types of misconduct envisaged for a legal practitioner
misappropriation of the client's money must be regarded as one of the gravest.
In his professional capacity the legal practitioner has to collect money from
the client towards expenses of the litigation, or withdraw money from the court
payable to the client or take money of the client to be deposited in court. In
all such cases, when the money of the client reaches his hand it is a trust. If
a public servant misappropriates money he is liable to the punished under the
present Prevention of Corruption Act, with imprisonment which shall not be less
than one year. He is certain to be dismissed from service.
But if
an advocate misappropriates money of the client there is no justification in
de-escalating the gravity of the misdemeanour. Perhaps the dimension of the
gravity of such breach of trust would be mitigated when the misappropriation
remained only for a temporary period. There may be justification to award a
lesser punishment in a case where the delinquent advocate returned the money
before commencing the disciplinary proceedings." The conduct of the
Delinquent, who is an elderly gentleman, is reprehensible and is unbecoming of
an advocate. It deeply pains us that the Delinquent who claimed to have practised
for three decades and has worked as Government advocate for four years should
have been guilty of such serious misconduct. The finding of the Disciplinary
Committee of the Bar Council of India that there was no intention on the part
of the Delinquent advocate to misappropriate the money of his client or to
de-fraud him is not only unfounded and perverse but also lacks the serious
thought which was required to be given by the Disciplinary Committee of the Bar
Council of India in the discharge of quasi-judicial function while probing into
the grave charge of professional misconduct by an advocate in the discharge of
his duties as a counsel.
We
find the Delinquent guilty of grave professional misconduct. Having given our
anxious consideration, we feel that having regard to the serious nature of
misconduct the punishment of removal of his name from the roll of Bar Council
would be the only appropriate punishment and accordingly we set aside the order
passed by the Disciplinary Committee of the Bar Council of India and restore
that of the Disciplinary Committee of the State Bar Council.
Appeal
is allowed.
Accordingly,
we direct the removal of his name from the roll of the Bar Council. The
appellant shall be entitled to the costs of this appeal, which we assess as Rs.
5,000/-.
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