VERY IMPORTANT POINT
Misappropriation of client s money by an advocate is a grave misconduct warranting deterrent punishment of removal of the name of the advocate from the State roll of advocates under Section 35 of Advocates Act, 1961.

Headnote:(i) Advocates Act, 1961-Section 38-Appeal against decision of Bar Council of India suspending licence of appellant to practice for a period of three years for committing breach of Trust by misappropriating compensation given to his client for land acquisition-Show cause issued under Section 38 for varying the punishment-Matter heard-Contention of appellant that he has given money to client subsequently-No material to rebut the finding of misconduct by Bar Council-Whether said finding requires any interference?
       Held : In this appeal appellant first pleaded that he is not liable to be punished at all and then contended alternatively that he has given the money to the client subsequently. But the factual position is so strong against the appellant that he could not show a single circumstance to accept his defence that he had paid the amount to the client. The finding of the Disciplinary Committee that the delinquent advocate "has withdrawn the compensation of Rs. 8118/- and has not paid it to the complainant for the last more than 11 years and is thus guilty of wrong professional conduct and has maligned the reputation of the noble profession and has committed breach of trust which an advocate enjoys", does not require any interference in this appeal. (Para 8)
       (ii) Advocates Act, 1961-Sections 35 and 38-Appeal against finding of misconduct and punishment-Supreme Court finding punishment disproportionate to finding of misconduct-Told appellant to increase punishment if finding of misconduct upheld-Accepted by appellant-Finding of misconduct found true-Question of varying punishment-Bar Council had awarded suspension from practice for a period a five years-Whether be increased to removal of the name of the appellant from the roll of advocates? (Yes) because misconduct is of a far graver nature)-Held misappropriation of the client s money must be regarded as one of the gravest type of misconduct-For acute need to cleanse the legal profession and for keeping up the professional standards Deterrence is a prominent consideration in awarding punishment for grave misconduct-Result-Appeal disposed of by imposing punishment of removal of the name of appellant from the roll of the advocates-Case law referred. (Paras 9 to 18)
       Held finally : By retaining such advocate on the roll of the legal profession it would be unsafe to the profession. The situation in this case thus warrants the punishment of removal of his name from the roll of advocates. (Para 14)
       In the result we dispose of this appeal by imposing the punishment of removal of the name of the appellant from the roll of the advocates. He would thus stand debarred from practising in any court or before any authority or person in India. (Para 18)

JUDGMENT

Thomas, J.-We are sad that the Disciplinary Committee of the Bar Council of India (for short the Disciplinary Committee ) despite being the acme statutory body entrusted with the upkeep of the probity of legal profession in India opted to treat a very grave professional misconduct in a comparatively lighter vein. The Disciplinary Committee held an advocate guilty of breach of trust for misappropriating the asset of a "poor" client. But having held so the Disciplinary Committee has chosen to impose a punishment of suspending the advocate from practice for a period of three years.

2. The delinquent advocate filed this appeal under Section 38 of the Advocates Act, 1961 (for short the Act ). We told him that in the event of this Court upholding the finding of misconduct he should show cause why the punishment shall not be enhanced to removal of his name from the roll of the Bar Council of the State concerned. Notice on that aspect has been accepted by Mr. M.M. Kashyap, learned counsel for the appellant.

3. We issued notices to the Bar Council of India and also to the Bar Council of U.P. Neither has chosen to enter appearance in this matter and hence we heard learned counsel for the appellant-advocate above.

4. Appellant Harish Chandra Tiwari was enrolled as an advocate with the Bar Council of the State of UP in May 1982 and has been practising since then, mainly in the courts at Lakhimpur Kheri District in UP. Respondent Baiju engaged the delinquent advocate in a land acquisition case in which the respondent was a claimant for compensation. The Disciplinary Committee has described the respondent as "an old, helpless, poor illiterate person". Compensation of Rs. 8118/- for the acquisition of the land of the said Baiju was deposited by the State in the court. Appellant applied for releasing the amount and as per orders of the court he withdraw the said amount on 2.9.1987. But he did not return it to the client to whom it was payable nor did he inform the client about the receipt of the amount. Long thereafter, when the client came to know of it and after failing to get the amount returned by the advocate, a complaint was lodged by him with the Bar Council of the State for initiating suitable disciplinary action against the appellant.

5. On 12.7.1988, appellant filed a reply to the said complaint before the Bar Council of the State. He admitted having been engaged by the respondent as his counsel in the aforesaid land acquisition case, he also admitted that he had withdrawn a sum of Rs. 8118/- from the court. But he adopted a defence that he had returned the amount to the client after deducting his fees and expenses.

6. On 3.8.1988, an affidavit purporting to be that of the respondent Baiju was filed by the appellant before the State Bar Council in which it is stated that a compromise had been arrived at between him and his client and that no further action need be taken on the complaint filed by the respondent. The Disciplinary Committee of the State Bar Council was not prepared to act on the said affidavit without verifying it from the client concerned. Hence they summoned the respondent and confronted him with the said affidavit. The respondent totally disowned the said affidavit, repudiated the alleged compromise between him and the appellant and denied having received any amount from the appellant-advocate.

7. The complaint and the proceedings later stood transferred to the Bar Council of India by virtue of Section 36B(2) of the Act. The Disciplinary Committee after conducting the inquiry, came to the conclusion that the affidavit dated 3.8.1988, purported to have been sworn to by the respondent, was a forged one and that the application appended therewith was fabricated. The Disciplinary Committee observed as follows :

"Thus, the conduct of the respondent and his evasive reply and his evasive vague deposition duly makes out that after taking the cheque from the Land Acquisition Officer in his own name, the respondent has fai

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2002 Supreme(SC) 15

2002(1) Supreme 29SUPREME COURT OF INDIA(From Disciplinary Committee Bar Council of India)K.T. Thomas and S.N. Phukan, JJ.Harish Chandra Tiwari -AppellantversusBaiju -RespondentCivil Appeal No. 200 of 2000Decided on 8-1-2002Counsel for the Parties :For the Appellant : M.M. Kashyap, Advocate.

VERY IMPORTANT POINTMisappropriation of client s money by an advocate is a grave misconduct warranting deterrent punishment of removal of the name of the advocate from the State roll of advocates under Section 35 of Advocates Act, 1961.

Cases Referred (2)

VERY IMPORTANT POINT
Misappropriation of client s money by an advocate is a grave misconduct warranting deterrent punishment of removal of the name of the advocate from the State roll of advocates under Section 35 of Advocates Act, 1961.