Vikas Deshpande
Vs. Bar Council of India & Ors [2002] Insc 501 (29 November 2002)
V.
N. Khare & Ashok Bhan. Bhan, J.
This
appeal has been filed by Vikas Deshpande, advocate, hereinafter referred to as
'the appellant', under Section 38 of the Advocates Act, 1961 [for short 'the
act] against the final order passed by the Disciplinary Committee of the Bar
Council of India in BCI/TRC No.51 of 1995 dated 3rd January, 2001. By the
impugned order the Bar Council of India has permanently debarred the appellant
from practising as an advocate for the commission of a grave professional
misconduct and also imposed the cost of Rs. 25,000/-.
Facts:
Ramrao
Chandoba Jadhav, Vidyadhar Ramrao Jadhav, and Chandrakant Ramdeo Jadhav (all
deceased), hereinafter referred to as "the complainants", were
prosecuted for committing murder of six persons on 16th December, 1990 at
village Mandgi, Taluka-Degloor, District-Nanded. Complainants requested the
Sessions Court for appointment of an advocate as amicus curiae to defend them
as they were unable to engage an advocate because of their poverty. Sessions
Court appointed Shri S.V.Ardhapurkar, Advocate as amicus curiae to defend the
complainants. Sessions Court after trial found the complainants guilty of the
offence charged with and awarded them death penalty by an order dated 30th August, 1991. On the same date the appellant
contacted the complainants in Yervada Central Prison where they were lodged.
Appellant took the copies of the judgment from the complainants and obtained
their thumb impression and signatures on the Vakalatnama to prefer an appeal in
the High Court of Bombay at Aurangabad Bench. Appellant told the complainants
that he would not be charging any fee as he was doing this to make a name for
himself.
On 10th October, 1991 appellant visited the Yervada
Central Prison again and obtained their signatures on some stamp papers. The
deed was not read over to the complainants nor the contents were made known to
them. Complainants signed and put their thumb impression on the documents in
good faith.
In
January, 1992 the High Court dismissed the appeal of the complainants and
confirmed the death sentence and subsequently complainants were hanged to
death. On 16th
February, 1992,
appellant met the complainants in Yervada Central Prison again and told them
that he had sold their land on the basis of power of attorney executed in his favour
by them authorising him to sell the land. That he had appropriated the money
received by him towards his fees.
Further
the appellant asked the complainants to authorise him to prefer an appeal to
the Supreme Court which they declined.
Thereafter
the complainants filed a complaint with the Chairman, State Bar Council to the
effect that the appellant who was practising as an advocate at Nanded, Maharashtra committed an act which amounted to
professional misconduct within the meaning of Section 35 of the Advocates Act
and for the said act disciplinary action be taken.
It was
stated in the complaint that applicant No.1 who was 60 years of age had a
living mother, applicant No.2 had a wife and 4 minor daughters and applicant
No.3 had a wife, 3 daughters and a son who were all minors. They had requested
for the appointment of an advocate as amicus curiae to defend them to leave
their property for the surviving members of the family in case the complainants
were sentenced to death. They wanted to leave some property for their family
members to survive lest they die of starvation. That they had never authorised
the appellant to sell their land. That the appellant had played fraud on them
and sold the property on the basis of the alleged power of attorney obtained by
him through misrepresentation.
Appreciating
the seriousness of the complaint made by the complainants, State Bar Council
took suo motu cognizance and issued notice to the appellant who filed his
reply. In the reply filed by the appellant he accepted that the complainants
were in death cell of Yervada Central Prison. He further admitted that the trial
of the aforesaid complainants were conducted by an amicus curiae and the death
sentence was imposed by the Sessions Judge, Nanded. He described himself to be
an expert criminal lawyer as he had conducted many sessions trials and appeals.
It was pleaded by him that he had also engaged some other lawyers as well and
he was trying his best to pay the fees of the said advocates by selling the
land of the complainants. It was further stated that on the request of the
complainants on 30th August, 1991 he accepted the vakalatnama on behalf of the
complainants on an oral agreement that the complainants would pay Rs.50,000/-
to the appellant for conducting the confirmation case and the appeal before the
High Court. That the complainants agreed to pay a sum of Rs.50,000/- as fees
and authorised him to dispose of their land to recover and appropriate the
money received by way of sale towards his fees. That out of 16 acres of land
owned by the complainants the appellant had sold only 6 acres and 30 gunthas of
land to meet the expenses.
Another
fact which needs to be mentioned is that the government valuation of the land
was 1,35,000/- but the appellant had settled the final consideration at
Rs.75,000/- out of which Rs.30,000/- was paid at the time of the agreement to
sell and the remaining amount was to be paid before 1st March, 1992. Later on a
sum of Rs.17,000/- was paid to the appellant. The remaining amount of Rs.28,000/-
could not be obtained by the appellant as the power of attorney executed in his
favour was cancelled by the complainants.
The
complaint was taken cognizance of and the matter was referred to the
Disciplinary Committee of the State Bar Council. On 25th of March, 1993 the
following issues were framed:
"1.
Do Petitioners prove that the respondent advocate met them on 30.8.1991,
obtained the copy of the judgment, obtained their thumb impression and
signatures on Vakalatnama and told them he would prefer original appeal on
their behalf in the High Court.
2. Do
petitioners prove that the respondent advocate solicited brief for no
remuneration.
3. Do
petitioners prove that the respondent advocate on 10th October, 1991 met petitioners and obtained their signatures on the stamp
paper without explaining the contents of the stamp paper.
4. Do
petitioners prove that the respondent advocate met them on 16th Feb. 1992 and told them that he had sold
their land under the power of attorney executed by them and told them that he
would prefer an appeal in the Supreme Court challenging the judgment and order
of the High Court.
5. Do
the petitioners prove that the act of the sale of their land by respondent
advocate, in the given circumstances constitute, the professional or any other
misconduct of advocate respondent.
6.
Does the respondent prove that the petitioners executed the power of attorney
in his favour to alienate their land to the extent of six acres 30 gunthas
situated at Village Manngi, Taluka Deglur, district Nanded voluntarily and with
full knowledge.
7.
Does respondent advocate prove that his fee to conduct criminal appeal and
confirmation case decided by the High Court, Aurangabad was settled at
Rs.50,000/-.
8.
Does respondent advocate prove that he was entitled to and justified in
recovering the fees by selling the land belonging to the petitioners.
9.
What orders?"
Vidhyadhar
son of Ramrao Jadhav, complainant No.2 was examined on oath. He, in his
deposition, reiterated the what had been stated by him in his complaint. He
specifically stated that he and his two other associated had not executed any
power of attorney in favour of the appellant authorising him to sell their land
and appropriate the sale consideration towards his fees. That their signatures
had been obtained on blank papers. That the power of attorney had been obtained
by misrepresenting the facts in order to defraud them. This witness was
cross-examined but nothing of substance could be brought out from his
cross-examination.
As the
State Bar Council could not complete the proceedings within a period of one
year, the complaint was transferred to the Bar Council of India under section
36B of the Act. The matter was entrusted for further action to the Disciplinary
Committee of the Bar Council of India. In spite of repeated notices sent to the
appellant which were duly served on him (4 times) the appellant did not put in
appearance. He was proceeded ex-parte. The Disciplinary Committee of the Bar
Council of India found the appellant guilty of soliciting brief from the
complainants and obtaining their signatures and thumb impressions on certain
documents on the basis of which power of attorney was executed in his favour authorising
him to sell the land of the complainants. It was found that the appellant had
failed to prove that the complainants had executed the power of attorney in his
favour to sell the land. It was also held that the appellant had failed to
prove that his fees at the relevant time to conduct the criminal appeal was
settled at Rs. 50,000/-. That he has failed to prove that he was entitled to
and justified in recovering the fees by selling the land belonging to the
complainants. The Disciplinary Committee found the appellant guilty of gross
professional misconduct as defined under Section 35 of the Advocates Act and
directed the State Bar Council of Maharashtra and Goa to remove the name of the
appellant from the roll of the Bar Council of Maharashtra and Goa under section
35(3d) of the Act. Cost of Rs.25,000/- were imposed and made payable to the
heirs of the complainants because by that time the complainants had already
been put to death in execution of the sentence imposed on them. A lien was
created on the property of the appellant for the recovery of costs.
Appellant
who had appeared in person and the counsel appearing for the Bar Council of
India have been heard at length.
We do
not find any substance in the submission made by the appellant that he could
not be proceeded ex-parte. It is evident from the perusal of the record that
there are four acknowledgements on the record which show that the appellant had
been duly served four times and in spite of the notices having been served on
the appellant he did not choose to appear before the Disciplinary Committee at
any point of time. The Disciplinary Committee had no other option but to hear
the matter. Secretary of the State Bar Council who was appointed as a
prosecutor also did not lead any evidence because in the meantime all the three
complainants were hanged in execution of the sentence imposed on them. The only
evidence which remains and which has come on the record is the statement of Vidhyadhar,
complainant.
Vidhyadhar's
testimony fully establishes the charge of professional misconduct against the
appellant.
We
agree with the findings recorded in the impugned order. has failed to lead any
evidence to displace the testimony of Vidhyadhar, complainant to the effect
that the appellant had solicited a brief for himself from them and they had not
executed any power of attorney in his favour for the purpose of the sale of
their land. He had obtained signatures and thumb impressions of the
complainants on some documents. Without informing and to the knowledge of the
complainants a power of attorney was got executed in favour of the appellant to
sell of the land. The power of attorney was obtained by the appellant on
misrepresentation. In pursuance of the alleged power of attorney in his favour the
appellant sold the land of the complainants fraudulently. It is also
established that fees of the appellant had not been settled at Rs. 50,000/-. He
was neither entitled nor justified in selling the land of the complainants on
the basis of the alleged power of attorney for the recovery of his fees. Had
the intention of the complainants been to sell the land then they would not
have requested for appointment of an amicus curiae to defend them before the
Sessions Court.
Appellant
took advantage of the situation that the complainants facing death sentence and
obtained the power of attorney on misrepresentation in his favour and sold the
property of the complainants. Further, the appellant fraudulently appropriated
the sale proceeds for his gain. He has committed a grave professional
misconduct.
Relationship
between an advocate and his client is of trust and therefore sacred. Such acts
of professional misconduct and the frequency with which such acts are coming to
light distresses as well as saddens us. Preservation of the mutual trust
between the advocate and the client is a must otherwise the prevalent judicial
system in the country would collapse and fail. Such acts do not only affect the
lawyers found guilty of such acts but erode the confidence of the general
public in the prevalent judicial system. It is more so, because today hundred
percent recruitment to the Bench is from the Bar starting from the subordinate
judiciary to the higher judiciary. You cannot find honest and hard working
judges unless you find honest and hard working lawyers in their chambers. Time
has come when the Society in general, respective Bar Council of the States and
the Judges should take note of the warning bells and take remedial steps and
nip the evil or the curse, if we may say so, in the bud.
For
reasons stated above, we do not find any merit in this appeal accordingly the
appeal is dismissed. There will be no order as to costs in this appeal.
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