Mr. 'C' v. The Advocate-General of Madras

Professional misconduct-Advoratc borne on the rolls of a l--!igh Court and Supre1ne Court-Debarred by l-!igh Court on Bar Cott:1cil's ref;ort-Sumnions by Supreme Cottrt-Procedure-Supremc Court R;des, 0. IV, r. 30.

The appellant, an Advocate ,vhose nan1e was borne on the rolls of the Madras I-Iigh Court and of the Supren1e Co11rt, \vas found guilty of gross profes.sional misconduct by the 1vfadr:Js High Court on the report of the Bar Council Tribunal and debarred from practmng in that Court. The charge against him was that he did 1957 not utilise a particular sum of money entrusted to him by his client to clear a mortgage in order to secure a clear title for him Mr.'C' in completion of a transaction of sale, for that purpose. nor v. account for it. The appellant preferred an appeal by special TJ.e Advocate-leave and this Court, being apprised of the order passed by the General of Madrar Madras High Court, issued a Rule under r. 30, 0. IV of. the Supreme Court Rules. It was found by this Court that the charge against the appellant was fully supported by a large volume of: evidence on record, both oral and documentary.

Held, that the appeal must be dismissed and the Rule made absolute and the appellant's name removed from the roll of Advo-cates of this Court.

I It is a great privilege to be an Advocate of this Court and only such persons as can satisfy a very high standard of integrity of character can be enrolled as such. An Advoi:ate who is found . to have fallen from that standard and is debarred by the High Court cannot be considered fit to practise in this Court.

Proceedings under r. 30, 0. IV of the Supreme Court Rules should be treated as a natural sequel to proceedings in the High Court under the Bar Councils Act and although an order made by the High Court under that Act is not to be automatically followed by this Court, it is not necessary that this Court should start a fresh inquiry on evidence. It would be enough for it to generally examine the record prepared by the Bar Council Tribunal and take into account the findings nf the High Court based on such report. Reasonable opportunity must, however, be afforded to the Advocate of being heard against the action proposed to be taken against him and adducing such additional evidence as this Court may think proper. The Attorney General or any other Advocate representing the Legal Profession generally or the complainant or the aggrieved party may also be heard before the final decision is arrived at;

In the matter of an Advocate, Case No. XVI of 1942, decided on March 23, 1943, In re: D. A. Slianmugasundaraswami, an Advo-cate, Misc. Case No. X of 1948, decided on January 24, 1949, In the matter of Mr. 'G', a Senior Advocate of the Supreme Court, (1955) 1 S.C.R. 490 and In the matter of 'D', an Advocate of the Supreme Court, (1955) 2 S.C.R. 1006, referred to.

CIVIL APPELLATE JuRrsmcTmN: Civil Appeal No. 146 of 1956.

Appeal by special leave from the judgment and order dated December 3, 1954, of the Madras High Court in Referred Case No. 69 of 1954.

M. S. K. Aiyanger, for the appellant .

1957 R. Ganapathy Iyer and T. M. Sen, for respondents

Nos. 1 and 2.

Mr.•C• 1957. May 6. The Judgment of the Court was

v.

The Advocale-delivered by Cemral of MadraJ SINHA J.-This appeal by special leave and the

summons under rule 30 of Order IV of the Supreme Sinha:J. Court Rules, 1950, have been heard together and will

be disposed of by this Judgment.

The appellant was an advocate of the Madras High Court of more than 25 ·years' standing, and was enrolled as an advocate of the then F~deral Court in the year 1939. As will presently appear, he has had a chequered career at the Bar. A Full Bench of the Madras High Court, presided over by the Chief Justice of that Court, by its judgment and order, dated December 3, 1954, has directed that the appellant's name be removed from the roll of advocates of the Madras High Court, for "grave professional misconduct". This Court, having been apprised of the result of the proceedings against the appellant in the High Court, issued notice to him to show cause why he should not be suspended from practice in view of the findings recorded by the High Court.

It appears that the appellant was engaged by one K. T. Appannah, ordinarily residing in Bangalore city, who will hereinafter be referred to as the complainant, to complete a transaction of sale between the com-plainant and the owner of a house property in the city of Madras, whom we shall call, in the course of this judgment, as the vendor, after scrutinizing the title deeds in respect of the property which was the subiect-matter of the transaction of sale. Before the appellant was engaged by the complainant, the bargain had been srruck and the sale price of the property had been fixed at Rs. 15,000 out of which Rs. 1,300 had been paid to the vendor by way of earnest money. A retired Government servant named Sundararajayya who was a relation of the complainant, and used to live near about the appellant's residence, had also helped the complainant in acquiring the property, and in that connection, used to give instructions to the appellant on behalf of the complainant. On May 11, 1951, the 1957 complainant sent, by way of a demand draft, the' sum of Rs. 1,400, to the appellant, to meet the costs of Mr.'C' stamp for the sale deed, and registration, and a fee of v. Rs. 150 to the appellant for his work in connection with The Advocate-the transaction. In the course of the enquiry into the General of Madras title to the property, it was discovered that there was a Sinha]. mortgage on the property, of Rs. 5,500, on the basis of a registered mortgage-deed which had been filed in Court in connection with a litigation in respect of that very property, pending on the original side of the Madras High Court. By negotiation, it was settled that Rs. 5,500, out of the sale price, shall be reserved for the .discharge of the mortgage debt, and that the remaining amount of the consideration, will be paid to the vendor on completion of the sale -transaction and delivery of vacant possession of the property. The appellant wrote to the complainant that the latter should send him a demand draft for Rs. 5,600, in his name, for payment to the mortgagee, aforesaid, when the mortgage bond, properly discharged, would be handed over to the appellant, acting for the complainant. In due course, on or about June 26, 1951, a demand draft in the name of the appellant, for Rs. 5,600, was sent by the com-plainant for the express purpose of discharging the mortgage debt, aforesaid. On August 21, 1951, a cheque for Rs. 1,200, on September 26, 1951, a cheque for Rs. 500, and on October 19, 1951, a demand draft for Rs. 5,500, all in the narri.e of the appellant, were sent by the complainant, in order to put him in funds for completing the. transaction of sale and for payment of the consideration money to the vendor. On July 9, 1951, the sale~deed was executed by some of the executants, and on September 6, 1951, it was executed by the remaining executant, and registered. Hence, it would appear that between May 11, 1951, and Octo-her 24, 1951, the complainant had paid to the appel-lant, the sum of Rs. 15,200, which was sufficient to pay the outstanding amount of the consideration for sale '

namely, Rs. 13,700, . including the mortgage amount, afnresaid, of R.s. 5,500, besides the costs of stamp and registration and the appellant's fees. But it appears 1957 that the vendor's portion of the consideration money,

was paid by the appellant on November 23, 1951, after Mr.•C' some avoidable delay due to him, and vacant delivery

v.

The Advocate-of possession given to the appellant as stipulated Gencral of Madras between the parties. It appears further that the com-

plainant was in need of raising money on the security Sinha]. of the newly-acquired property, and, therefore, was

anxious t'> receive all the documents of title including the mortgage bond duly discharged. But the appellant, for reasons of his own, went on postponing the pay-ment of the mortgage money on some pretext or the other. On being pressed for the mortgage-deed, duly discharged, being handed over to the complainant, and as a result of a protracted correspondence, the appel-lant sent, to the complainant, on June 26, 1952, a number of documents including "cancelled mortgage documents." It should be added here that the mort-gage transaction of Rs. 5,500, ha• l been entered into by the owner of the property in order to discharge previous mortgages on the same property. All these documents had to be withdrawn from the High Court where they had been in the custody of the Court as already indicated. Unfortunately, Sundararajayya died on June 28, 1952. As a result of further corres-pondence, the complainant came to realise, to his cost, that the mortgage debt of Rs. 5,500 had not been paid to the mortgagee, as arranged between the appellant and the complainant who had put him in funds with the express purpose of obtaining a clear title to the pro-perty which he had agreed to purchase. Thus, the complainant was reduced to the necessity of filing a regular petition of complaint in the High Court on November 14, 1952. In that petition of complaint, the complainant made copious quotations from the letters addressed by the appellant to him and made reference to the fact that the mortgagee had already instituted a suit in court for recoverv of the mortgage mane.,', and had impleaded the compbinant as party defenchnt to the rnit. The gravamen of the charge against the appelbnt was that he had not discharged the outstand-ing mortgage on the property purchased, for which he had been supplied with ample funds by the complainant and that he had not disclosed how and . in what 1957 manner, the complainant's money, meant for the purpose, had been utilized by the appellant. Mr.'C'

In answer to the notice issued to him on February 16, v. 1953, the appellant submitted a long statement by Tht Advocat way of an explanation which runs into about 43 pages General of Madras in print, which is more in the nature of an argument Sinha]. in justification of his conduct than a statement of facts.

The High Court referred the complaint, for inquiry and report, to the Bar Council. Three mem-bers of the Council constituted the Tribunal which held a very elaborate inquiry. After recording both oral and documentary evidence, the Bar Council made its report on May 5, 1954, holding that :

'· ...... both the charges have been fully established and that the respondent has not only not used the moneys of the complainant for the purpose for which the, money was sent, but that the respondent has not accounted at all for the sum of rupees, 5,000; which was ndmittedly cashed by him and brought into his bank account though not in his professional account."

In course of its report, the Tribunal found that the appellant had received all the amounts sent by the complainant, as set out above. It also pointed out that an unfortunate feature of the case was that the mortgage bound in question which was one of the "cancelled mortgage documents'', had not been produced before it. The non-production of the crucial document was explained to the Tribunal by counsel for the complainant. It was. stated that the mortgage-dccd in question, along with other document>, had been left by the complainant with his counsel ancl that the-whole bundle of papers inclucling tho>e documents had "disappeared from his office". One can onlv surmise as to who may have been responsible fo~ secreting those documents, or for who>e benefit. thev h:id been stolen away, as alleged by counsel for the complainant.

Another ugly aspect of the proceedings was that a number of letters, admittedly written by the appelbnt to the complainant in connection with the tramaction of sale. had been found bv the High Court to have been 4-81 !;. C. Ind1a'59.

1957 tampered with or bodily substituted. The Tribunal

observed with particular reference to exhibit C-12, Mr.'C' .... which was alleged to have been substiruted for the

original, that the learned counsel for the complainant Tire A.duocate-- had not persisted in the charge that it had been sub-G,:vra/ of Madrdl stituted; and that he did not press the charge that

9inhaJ. there had been certain alterations in some other letters

which formed part of the voluminous correspondence that passed between the appellant and the complainant. It may be observed here that no specific "charge" had been drawn up against the appellant in respect of those letters. Hence, when the Tribunal stated that the 'charge' had been withdrawn, it only meant to s2y that the learned counsel for the complainant did not persist in his allegations about those alterations or the whole-sale substirution of exhibit C-12 about which we will have to say something more in the course of this judgment.

The Tribunal examined, in some detail, the parti-cular defence of the appellant with reference to the sp<":rific charges mac.le Jgainst hin1 in respect of the sum. of Rs. 5,600, admittedly sent by the complainant for the specific purpose of discharging the mortgage encumbrance on the purchased property. It appears to have been the appellant's case that the demand draft for Rs. 5,500, dated Octo'ier 24, 1951, had been sent to him through Sundararajayya, and that the appellant, after getting the amount of the draft credited to his personal account. kept only Rs. 500 for pa::- ment to the vendor and made over to Sundararajayya the rem'aining 5,000 rupees in cash. It was not his case that the complainant had instructed him to pay to Sundararajavya the 5,000 rupees, alleged by him to have been r»id to Sundararajayya. It was not c-.·en his case that he had taken anv receipt for the s.id sum from Sundararaiayya, though he alleged that he had given a receipt to Sundararajayya for the much smaller sum of Rs. 500 which he admitterl to have kept in his hands on account of the complainant for pav-ment to the ven<iee. After reviewing the entire cvirlencc and particularly the correspondence that passed between the appdlant and the complainant, the Tribunal came to the conclusion that the appellant 1957 "dishonestly and fraudulently represented to the com-plainant that the mortgage had been cancelled and he Mr.'C' ... picked out 3 out of the 36 documents received by him from the vendor, including the mortgage document Thi A.dvocale-General of M adru herein involved, and sent the same to the complainant describing them as 'cancelled documents'. The only Sinha]. inference that one can draw is that the respondent having utilized <:he monies intended for the discharge of the mortgage for his own purpose put on the mort-gage document the marks of cancellation and sent the same to the complainant at the pressure of the com-plainant's demand for the discharged mortgage docu-ment". The Tribunal also examined all the relevant evidence bearing on the payment back of Rs. 5,000, to Sundararajayy:i, out of the demand draft for Rs. 5,500, admittedly sent by the complainant and credited to the persona! account of the appellant. As already indicated, Sundararajayya ha•l died before the commencement of the inquiry, and, therefore, his evidence could not be a'·aibble to the Tribunal. But in spite of the com-plete absence of the mortgage bound in question from the record, and of the, possible· explanation of Sundara-raiayya, the Tribunal had no difficulty in coming to the cm1clusion that the appellant "is clearly guilty not only of professional misconduct but also a clear breach of trust."

Ti!:s report of the Tribunal was closely examined bv a Full Bench of the Madras High Court: The learne~l Chief Justice who presided over the Bench, after care-fully considering all that could have been said on behalf of the appellant, and the relevant evidence both 01:11 and documentary, confirmed the findings of the Tribunal. It went a little further and held that exhibit C-12 was not genuine and th;1t the letters-exhibits CIO and C-11-coptained interpolations at the imtance of the appellant who was the respondent before the Court. In this connection, the High Court made the following observations : ·

"The learned Advocate-General attacked the l';c:nuincness of this letter. Whether there was another genuine letter of the same date or not, it i~ not

necessary to decide. No doubt, this letter is in the handwriting of the respondent. After deep consideration Mr. •c• of all the circumstances, we are clearly of opinion that

v. this letter must have been introduced into the bundle The Advocatt-of documents with the complainant's advocate at or Gentral of Madras about the same time, when the respondent made the

interpolations in the letters dated 6-9-1951 and Sinha].

6-10-1951, (exhibits C-10 and C-11 )."

In the result, the High Court directed that the appel-lant's name be removed from the roll of advocates of that Court.

Against this order, the appellant prayed for and obtained special leave to appeal to this Court. It is convenient at this stage, to deal with the arguments advanced by the learned counsel for the appellant. It has been suggested that the inquiry by the Bar Council Tribtmal was ''rambling and roving". This objection is not altogether unfounded. It appears from the ordt;r slm·t maintained by the Tribunal that charges were framed on July 22, 1953. and the inquirl' continued from date to date until the report was made on May 5, 1954. The Tribunal handhl the case on as many as 45 dates and the printed record of the inquirv runs into 296 pages in print. This must have entailed a good deal of expenditure of time and money to the parties and one mav particularlv sympathize with the complainant who had to go through all this after having been deprived of at least Rs. 5.000, if not more. as found by the High Court and the Tribunal. But if it is necessary to apportion blame, much of it mav be bid at the door of the appellant himself, who appeus to have :"pent a lot ingenuity o\·er trying-to explain his dealings with his unfortunate client. lri answer to the charge framed by the Bar Council T rihunal. the appellant submitted a long "written answer" on Sep-tember 27, 1953. But before that, he had already submitted a 'written explanation' on Fchruarv 16, 1953, rnnning into 43 pages in print, as alreacly indi-cated. There is no doubt that the appellant left no stone unturned to cloud the issues anrl to throw a veil over his mis-deeds, as found bv the Tribunal and the Marlra' High Court. It is clear, therefore, that it is not the appellant who should have made any grievance 1957 out of the so-called rambling anq roving inquiry.

It was next pointed out· that the inquiry by the Mr. •C' v. Tribunal into the alleged mis-conduct of the appellant Tiu~ocatt· was in the nature of a quasi-criminal proceeding, and Genera/ of Madras as necessary corollaries to this proposition, it was contended Sinha].

( 1) that the charge should have been more precise, and that

(2) it should have been proved beyond all reason-able doubt.

We have examined these contentions with reference to the record as prepared by the Tribunal and in our opinion, it has not been made out that the charge was so defective as to mislead the appellant or to cause any substantial prejudice to him or that there is any room for reasonable doubt as to the truth of the charges framed against the appellant. The charges framed against the appellant were in these terms :

"That you Mr. 'C', in acting for the petitioner as his advocate in the matter of scrutinising the title deeds of No .. 104-A. Lloyds Road, Gopalapuram, Madras, and putting through the sale of the said premises in peti-tioner's favour, received from the petitioner Rs. 5,600 for the purpose of discharging a mortgage encumbrance on the property and that you have not applied the monies so entrusted to you then and there for the purpo~es of entrustmel'lt.

That you Mr. 'C' have further not disclosed to the petitioner how and in what manner you have utilised the said monies and that you have not accounted for the same when demanded.

That you have for these reasons committed acts of professional misconduct liable to be dealt with under the R:ir Councils Act."

With referenet: to the charge in the first paragraph, it was contended that the charge, as it appears, has been completely an<wered bv the appellant. The argument runs as follows : The reference to the sum of R~. 5.600, apparentlv is to the demand draft for the 11aid amount elated Tanuarv 26, 1951. This amount, the appellant claimed, had been paid over to the vendee 1957 himself on November 23, 1951, when vacant posses-

sion of the premises purchased was delivered to the Mr. •C' appellant .

TM A.dvotat..,. This could have been a complete answer to the ~rural of Madru charge, if it had been found as a fact that out of the

demand draft dated October 24, 1951, of Rs. 5,500, the Sinh• ]. appelbnt had paid back to Sundararajayya the sum

of Rs. 5,000, as alleged by him. But as found by the Court below confirming the conclusions of the Bar Council Tribunal, the appellant had failed to establish by reliable evidence that the sum of Rs. 5,000 had, as a matter of fact, been paid back to Sundararajayya, aforesaid. Hence, on the findings, it is clear that the appellant had in his hands, more than ample funds to pav the entire consideration money including the mortgage encumbrance of Rs. 5,500, after deducting Rs. 1,300, which had already been paid to the vendor by way of earnest money, before the appellant came on the scene. But it is sought to be pointed out on behalf of the appellant that the charge against him was not that he had not accounted for, or had embezzled any portion of the sum of Rs. 5,500, sent to him last on October 24, 1951. This argument assumes that the mortgage-debt outstanding against the purchased property had to be discharged in specie, out of any particular item out of several instal mcnts in which the complainant had entrusted the total sum of Rs. 15,200, to the appellant, in connection with the transaction in question. The appellant had to account for the due application of the said amount of Rs. 15.200, being the total sum placed in his hands by his client for the purpose of seeing through the transaction. The appellant himself does not claim that he rendered account of the total sum thus entrusted to him by his client. The appellant cannot be said to have duly accounted for all this sum unless it were held that he had paid Rs. 5.000 in cash to Sundararajayya. On his own showing, if it is held, as it has been found by the High Court, in agreement with the Tribunal, that the sum of Rs. 5,000, had not been paid to Sundararaiayya, the appellant has not accounted for the entire amount entrusted to him by his client. This then is a clear case, shorn of all verbiage introduced by the appellant 1957 himself to cloud the issues, that the appellant was entrusted by his client with the sum of Rs. 15,200, out Mr. •C' of which, he had to discharge the mortgage-debt of Rs. 5,500, as settled with the JllOrtgagee by the appel-T ht Ad110cat1-lant himself, acting on behalf of the complainant. The Gennal of Madr111. appellant has never pretended that he has paid this Sinha J. sum to the mortgagee. This is made absolutely clear by the appellant's statement in paragraph 58 of his 'written explanation', to the following effect :

"There is no question of 'my having discharged the mortgage.' I did not discharge the mortgage. I never paid any money to the mortgagee or to anyone on his behalf. I never told or wrote and I could not have ·told or written to any, at any time, that I had paid the mortgage claim. The allegation or suggestion to that effect is untrue. As already stated, I was not placed with the requisite funds on and after 21-11-1951."

There is thus no escape from the conclusion that the appellant had not applied the sum of Rs. 5,500, in discharging the mortgage debt, aforesaid, out of the sum of Rs. 15,200, placed in his hands by the complain-ant for the specific purpose of acquiring a clear title to the property. It would have been better if the Bar Council Tribunal had called upon the appellant to account for the entire amount of Rs. 15;200, which he admitted he had received from his client, instead of mentioning only the one item of Rs. 5,600. That would have been a straight case to state against the appellant. But there is no reason to hold that the appellant was in any way prejudiced 'in his defence by the omission in the charge to mention the entire sum of money entrusted to him. It was repeatedly mentioned before us that the appellant might have been a fool in his dealings with the money placed at his disposal by his client-the complainant. There are clear indications in a the record that the appellant, far from being a fool, is knave, and that he knew fully what charge he had to meet. . There is no ambiguity in the charge and there is no doubt . that the High Court was fully justified in whole-Heartedly confirming the conclusions of the 1957 Tribunal. 1t is equally clear to us that there is no

room for any doubt whatsoever that the appellant had Mr. 'G' misappropriated his client's money and that the High

Y. Court was fully justified in striking off his name from The Advocate9 the roll of advocates of that Court.

Genera! of Madras

It remains to consider the further points sought to