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PETITIONER:

BHATARAJU NAGESHW ARA RAO

Vs.

RESPONDENT:

THE HON'BLE JUDGES OF THE MADRASHIGH COURT AND OTHERS.

DATE OF JUDGMENT:

03/12/1954

BENCH:

DAS, SUDHI RANJAN

BENCH:

DAS, SUDHI RANJAN

MUKHERJEA, B.K.

BOSE, VIVIAN

CITATION:

1955 AIR 223 1955 SCR (1)1055

ACT:

Procedure-Supreme Court-Suspension of Advocate by High

Court-Appeal to Supreme Court-Respondents to be impleaded in

such appeal-Indian Bar Councils act (XXXVIII of 1926), s.

12.

HEADNOTE:

It is wrong and inappropriate to implead the Judges of the

High Court as respondents in an appeal preferred to the

Supreme Court by an Advocate against whom an order of

suspension was passed by the High Court under s. 12 of the

Indian Bar Councils Act, 1926. In such appeal the proper

respondents are the complainant if any, the Bar Council or

Secretary thereof and the Advocato-General of the State

concerned

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 146 of 1954.

Appeal by Special Leave from the Judgment and Order dated

the 17th day of December, 1952, of the High Court of

Judicature at Madras in Referred Case No. 45 of 1952 arising

out of the Report dated the 27th day of March, 1951, of the

Court of District Judge, Krishna in C.M.P. No. 123 of 1951.

S. P. Sinha, (K. R. Chaudhary and Sardar Bahadur, with

him), for the appellant.

R. Ganapathy Iyer and P, G. Gokhale, for respondent No. 1.

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T. Satyanarayana and P. G. Gokhale, for respondent No. 3.

1954. December 3. The Judgment of the Court was delivered

by

DAS J.-This is an appeal by special leave from an order made

by a Special Bench of the High Court of Judicature at Madras

under section 12 of the Indian Bar Councils Act (Act XXXVIII

of 1926) debarring the appellant from practising as an

advocate for a period of five years.

The material facts are these. The appellant before us is an

advocate ordinarily practising at Masaulipatam. In Calendar

Case No. I of 1949 on the file of the Additional First Class

Magistrate's Court at Masaulipatam nine persons were charged

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with the offence of conveying rice from the village to other

villages without permits. Accused Nos. 2 and 4 were not

represented by any advocate. Accused Nos. 1, 3, 5, 6 and 8,

all cart-men, were defended by the appellant. Accused No.

7, who initiated the proceedings out of which the present

appeal arises and who is hereinafter referred to as "the

petitioner", was defended by another advocate. The case was

disposed of on the 30th September, 1949. Accused Nos. 1, 3,

5 and 6 were acquitted. Accused No. 2 was convicted and

sentenced to a fine of Rs. 20 and in default of payment of

fine to undergo simple imprisonment for one month. Accused

No. 4 and the petitioner, accused No. 7, were also convicted

and sentenced to pay a fine of Rs. 300/- each and in default

of payment of fine to undergo simple imprisonment for six

months. Accused No. 8 was sentenced to pay a fine of Rs.

100/- and in default of payment of the fine, to simple

imprisonment for three months. Accused No. 2 paid the fine

but the other three convicted persons did not. The four

convicted persons including the petitioner thereafter

engaged the appellant to prefer an appeal to the Sessions

Court. The appeal was presented before the Sessions Court

on the 8th October, 1949 and on the same day a petition was

filed on behalf of accused Nos. 4, 7 (petitioner) and 8 for

an order staying the

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realisation of the fine. That application for stay came up

before the learned Sessions Judge on the 10th October, 1949

when notice was directed to issue to the Public Prosecutor.

On the 11th October, 1949 the learned Judge passed the

following order:

"Suspended pending disposal of this petition. Call on 14.

10".

On the 14th October, 1949 the following further order was

passed:-

"Execution of sentences suspended till disposal of appeal".

The appeal was posted for hearing on the 25th November, 1949

and was adjourned from time to time. Eventually, it was

finally heard on the 13th July, 1950 when the appeal was

allowed and the conviction and sentences of all the

appellants were set aside. On the 25th January, 1951 the

petitioner caused a registered notice (Ex. A/2) to be sent

to the appellant alleging that on the 11th October, 1949 the

appellant had represented to him that the Court had refused

to suspend the sentences and that unless the amount of fine

was deposited the petitioner would be sent to jail. It was

further alleged that on such representation the petitioner

had on that day paid to the appellant a sum of Rs. 300 for

which the appellant had passed to the petitioner a chit (Ex.

A/1) under his own signature acknowledging receipt of the

said sum. The chit (Ex. A/1) which is addressed to the

petitioner runs as follows:-

"This day, you have paid to me a sum of Rs. 300 (three

hundred rupees only)".

It is signed by the appellant and below his signature

appears the date 11th October 1949 and the time 5-15 P.m. is

also mentioned below the signature. The allegation in the

registered notice further was that the appellant had

concealed from the petitioner the fact that the order for

payment of fine had been suspended until the hearing of the

appeal and also that the appeal had eventually been allowed.

The notice ended with a threat that if the appellant failed

to return the sum of Rs. 300 together with interest at 12

per cent. per annum from the 11th October 1949 up to date of

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payment the petitioner would be constrained, in addition to

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such other proceedings as he may be advised to take for

recovery of the said amount, to complain against the

appellant and his unprofessional conduct to the High Court

and the Bar Council. This notice was received by the

appellant on the 12th February 1951 and on the next day,

13th February 1951, the appellant issued three registered

notices Exs. A/3, A/4 and A/5 to the petitioner. In Ex.

A/5 the appellant complained that the petitioner had been

evading payment of the agreed fee of Rs. 150 and on firm

demand having been made by the appellant on the 21st January

1951 for payment of such fee before the 25th January 1951

the petitioner had issued the registered notice Ex. A/2.

In Ex. A/4 the appellant alleged that the petitioner

instructed the appellant to file a stay petition as the

petitioner was unable to pay the fine and that the appellant

filed the petition accordingly and obtained a stay order

about which the petitioner was fully aware. In those

circumstances the allegations contained in the petitioner's

notice Ex. A/2 were false and highly defamatory. He

further alleged that the petitioner was also present in

Court on the 13th July 1950 when the appeal was allowed. In

the circumstances, there was no need for the petitioner to

pay any money to the appellant for the purpose of paying the

fine. The appellant called upon the petitioner to withdraw

the allegations and tender an unqualified apology

immediately. In Ex. A/3 the appellant stated that the

petitioner had come to him on the 6th October 1949 to engage

him as his advocate for filing an appeal. Seeing that the

appellant was then pressed for money for payment of an

installment of a loan No. 616 to the Land Mortgage Bank,

Pedana, the petitioner volunteered to arrange for a loan of

Rs. 300 for the appellant at Pedana and asked him to give a

chit in his favour and to send the appellant's clerk with

the petitioner. The petitioner did not, however, succeed in

arranging for any money but the chit Ex. A/I remained with

him. There was a denial that there was any consideration

for the chit Ex. A/I. On the 7th March 1951 the petitioner

sent a reply generally

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denying the allegations contained in the three several

notices sent by the appellant to the petitioner. That reply

was received by the appellant on the 13th March 1951 and on

the 14th March 1951 the appellant issued a further rejoinder

Ex. A/7 denying the allegations in the petitioner's reply

and stating that the statements in his three notices were

true. It was further alleged that when the petitioner

failed to sup-ply the amount mentioned in the chit Ex. A/I

the appellant asked him to return the chit but the

petitioner said that the chit was missing and that he would

search for it and return it subsequently and so saving the

petitioner gave the appellant on the 16th October- 1949.a

hand letter (Ex. D/8) admitting that the petitioner was

unable to supply the amount of Rs. 300 mentioned in the said

chit as promised. The petitioner did not send any reply to

this letter in spite of the fact that the appellant had

therein referred to a hand letter (Ex. D/8) dated the 16th

October 1949 which totally nullified the value of the chit

Ex. A/I.

The petitioner then on the 27th March 1951 sent a petition

to the High Court making a complaint against the appellant

of professional misconduct and praying that the Hon'ble High

Court might be pleased to order an enquiry into the

allegations made in his complaint and to take such action

against the appellant as was necessary and expedient in the

circumstances of the case. Along with the petition were

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submitted a photograph of the chit Ex. A/I and copies of

the registered correspondence that passed between the

petitioner and the appellant. Even in this petition the

petitioner did not refer to the band letter (Ex. D/8) of

the 16th October 1949 and did not specifically deny having

written the same. Upon the presentation of the petition the

appellant submitted a written explanation before the High

Court. The High Court,, under section 10 of the Indian Bar

Councils Act, referred the matter to the District Judge to

enquire into the allegations made in the petition and to

submit A report.

The District Judge issued a notice to the appellant setting

forth the following charges:-

136

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"1. That you have suppressed fraudulently the order of the

Additional Sessions Judge, Krishna at Masaulipatam,

suspending payment of fine of Rs. 300 and made in Crl. M.

P. No. 180 of 1949 in C. A. No. 82 of 1949 preferred against

the conviction and sentence passed by the Additional First

Class Magistrate, Bandar, in C.C. No. 1 of 1949, on his

file, against the petitioner, who is the seventh accused

therein;

2. That you, having fraudulently suppressed the above

stated fact, have represented to the petitioner that the

amount of fine of Rs. 300 had to be deposited into Court on

pain of the petitioner being sent to jail and received the

said sum of Rs. 300 from him and passed a receipt in his

favour for the same;

3. That you, even though the above said C.A. No. 82 of

1949 on the file of the Additional Sessions Judge, Krishna

at Masaulipatam was allowed by the judgment dated 13-7-1950,

having all knowledge about it did not inform the petitioner

that the said C.A. No. 82 of 1949 was disposed of, and later

on informed him that it was dismissed, and the conviction

and sentence were confirmed;

4. That you, therefore, wrongfully withheld the amount of

Rs. 300 belonging to the petitioner without depositing into

Court as represented by you and also without refunding it to

the petitioner even after the said appeal was allowed in

spite of repeated requests and demands made by him, and

5. That you have falsely set up a plea of not having

received the said sum of Rs.300 from the petitioner, for

which you have passed a receipt in his favour, and later on

set up that you wanted to borrow the said amount from him

during the subsistence of the relationship of advocate and

client, which (borrowing from a client) itself is prohibited

by law".

The petitioner examined himself (P.W.1) and his brother

Potharaju (P.W.2) as his witnesses in support of the

allegations in the petition. The appellant examined himself

(R. W. 1) and his clerk D. Venkatarangam (R.W.2),

Kameswararao, the secretary of the Vadlamannadu Co-operative

Land Mortgage Bank at

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Pedana (R.W.3) and Venktadri, clerk of an advocate (R.W.4)

in support of his defence.

On a consideration of the entire evidence the learned

District Judge found that the testimony of the petitioner

and his brother was not credible and acceptable and that

there was no reason to reject the testimony of the appellant

and his clerk and other witnesses and he came to the

conclusion that it bad not been satisfactorily proved that

the appellant was guilty of any of the charges framed

against him. The District Judge sent a report accordingly.

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The matter was placed before a Special Bench of the Madras

High Court. The Special Bench had no hesitation in agreeing

with the findings of the learned District Judge on charges

1, 2 and 3. In their opinion much reliance could not be

placed on the veracity of the complainant himself The High

Court, in agreement with the learned District Judge, held

that the appellant was not guilty of the first three

charges. Coming to the last two charges the learned Judges

were struck by several facts, namely, (i) the passing of two

receipts for two sums of money each of Rs. 300 which were

identical with the amount of fine imposed on each of the

accused Nos. 4 and 7 (petitioner) and (ii) the date of

payment, namely, the 11th October 1949 on which date the

petitioner and the fourth accused had to deposit the fine.

The learned Judges were strongly impressed with the fact

that the chit Ex. A/I had been allowed to remain with the

petitioner. The High Court also noted that if the arrange-

ment was that the appellants clerk would pass a formal

stamped receipt after getting the money there was no

necessity to issue an informal receipt in favour of the

petitioner in advance. The learned Judges further pointed

out that in none of the three notices dated the 13th

February 1951 any reference had been made by the appellant

to the hand letter (Ex. D/8) 'dated the 16th October 1949.

The High Court concluded that the failure to mention this

hand letter in the earliest reply by the appellant cast

considerable doubt on the genuineness of the document and

consequently the Court could not act on the basis that it

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contained a true statement of facts admitted by the

petitioner. The High Court also referred to several other

minor points suggesting the improbability of the appellant's

story. The High Court held that the appellant had received

a sum of Rs. 300 from the petitioner on the 11th October

1949 as acknowledged by the appellant in the chit Ex. A/ 1.

The High Court accordingly held that charges Nos. 4 and 5

had been proved against the appellant and passed orders

against the appellant debarring him from practicing as an

advocate for five years. The appellant has now preferred

this appeal after having obtained special leave from this

Court.

We have been taken through the evidence by learned advocates

appearing on both sides. It appears to us that while there

are some facts which cast some doubt on the version of the

appellant there are other material facts completely

overlooked by the High Court which nevertheless have a

material bearing on the truthfulness or falsity of the

complainant's story. It is true that the appellant did not

refer to the hand letter (Ex. D/8) in his replies Exs.

A/3, A/4 and A/5 to the petitioner's letter Ex. A/2, but

the appellant did refer to it in his rejoinder Ex. A/7 of

the 14th March 1951. It is significant that the petitioner

did not send any reply to this last rejoinder and deny the

allegations definitely made by the appellant. It is further

significant that the petitioner did not deny the genuineness

of the band letter Ex. D/8 even in his petition. In his

evidence the petitioner admits the signature on the hand

letter to be his own but states that it must have been made

out by the appellant on a blank paper on which he had

induced the petitioner to put his signature on the

representation that the same would be used as a Vakalatnama.

It is very difficult to accept this story because the

petitioner knew from his experience as an accused in the

trial Court that no Vakalatnama was required in a criminal

case. Nor has any of the other appellants been produced as

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a witness to say that any such signature was taken from any

of them on blank paper. Further, the petitioner was present

in Court on the 11th October when

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the interim stay order was made. Ex. A/1 bears the hour 5-

15 P.m. below the signature of the appellant which shows

that chit came into existence after court hours. It is

utterly impossible to believe that the petitioner would

deposit Rs. 300 with his new advocate in spite of the fact

that in the earlier part of the day the interim order for

stay had been made. It is also significant that accused No.

4 who is also alleged to have paid Rs. 300 to the appellant

for a similar purpose has not been called as a witness to

corroborate the evidence of the petitioner and his brother.

The question of the ability of the petitioner to advance Rs.

300 is one of great importance in this case. The petitioner

is not a man of means. He alleged that he had raised the

sum of Rs. 300 by selling some miscellaneous gold. No

goldsmith or shrove was called to produce his books and give

evidence in corroboration of the petitioner and his brother.

Indeed, the petitioner could not even mention the name of

any shroff to whom he is supposed to have sold his gold.The

High Court completely overlooked this aspect of the matter

and in the absence of satisfactory evidence showing that the

petitioner was in a position to pay the sum of Rs. 300 it

will be extremely risky to hold that the fact of payment of

Rs. 300 by the petitioner to the appellant has been proved

only because there are some weaknesses in the appellant's

story. The appellant's story that he required Rs. 600 to be

paid to the Land Mortgage Bank is supported by the secretary

of the Land Mortgage Bank (R.W. 3) who stated that the

appellant bad informed him that he had raised Rs. 300 only

and that a person who had promised to arrange for a loan of

Rs. 300 had failed to do so and that the appellant had asked

his advice as to what he was to do. The secretary then told

the appellant that as he had made an excess payment in 1948

towards and on account of the principal it would be enough

if he paid the amount of Rs. 377/9/- which the appellant

bad. It is significant that the Bank's records show that

the appellant had paid only Rs. 377/9/- into the Bank on the

4th November, 1949. If the petitioner had paid

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Rs. 300 to the appellant there would have been no reason why

the appellant should not have paid the entire Rs. 600

towards his liability to the Bank. The learned District

Judge who had the advantage of seeing the witnesses and

hearing the evidence disbelieved the evidence of the

petitioner and his brother and we see no compelling reason

to take a different view of it. On the facts and

circumstances of this case we think that charges 4 and 5

have not been brought home to the appellant or, at any rate,

the appellant is entitled to the benefit of the doubt. In

the circumstances, we hold that the order passed by the High

Court should be reversed and we direct that the complaint

against the appellant do stand dismissed as not proved.

Before parting with this appeal we desire to say that it

appears to us that it was wholly wrong and inappropriate for

the appellant to have made the Honourable Judges of the

Madras High Court respondents to this appeal. It appears

that in some cases involving contempt of Court the

Honourable Judges have been made parties. It is not

necessary for us to express any opinion on this occasion as

to the propriety of that procedure in contempt cases but we

are clearly of the opinion that in an appeal arising out of

a proceeding under the Bar Councils Act the appropriate

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parties should be the advocate concerned, the complainant,

if any, the Bar Council or the secretary thereof and the

Advocate-General of the State concerned to whom notices have

to be issued under section 12(3) of the Indian Bar Councils

Act.

Appeal allowed.

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