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CASE NO.:

Appeal (civil) 4003 of 2001

PETITIONER:

Vikas Deshpande

RESPONDENT:

Bar Council of India & Ors.

DATE OF JUDGMENT: 29/11/2002

BENCH:

V. N. Khare & Ashok Bhan.

JUDGMENT:

J U D G M E N T

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.

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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.

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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

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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

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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.