IMPORTANT POINT
Where appellant (advocate) took advantage of the situation that the complainants facing death sentence and solicited brief for himself and obtained the power of attorney on misrepresentation to pursue for them got sold the land of the complainants and fraudulently appropriated the sale proceeds for his gain, he has committed a grave professional misconduct under Section 35 of Advocates Act, 1961 and order of permanent debarring him for practising and imposition of costs is perfectly justified.

Headnote:(i) (Indian) Advocates Act, 1961-Sections 35 to 38-Complaint about professional misconduct of an advocate -Disciplinary Committee serving notices four times-Advocate not appearing-Proceeded ex-parte-Whether correct? (Yes).
       Held : 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 or 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. (Para 12)
       (ii) Advocates Act, 1961-Sections 35, 36B, 35(3d) and 38-Professional misconduct by Advocate of soliciting brief-Misrepresentation to get some papers executed to sell land of complainants to misappropriate for his fees etc.-State Bar Council framed charges-Enquiry not completed in one year-Transferred to Bar Council of India under Section 36B-Bar Council of India found him guilty under Section 35(3d)-Directed to remove his name from State s Bar Roll s forever and imposed costs of 25,000/-Appeal to Supreme Court-Whether findings recorded in impugned order are correct? Is there a grave professional misconduct in this case? (Yes)-Whether punishment sustainable? (Yes)-Appeal dismissed.
       Held : 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. (Para 13)
       Held further : 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. (Para 14)
       Held thereafter : 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. (Para 15)
       Held finally : 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. (Para 16)

JUDGMENT

Bhan, J.-This appeal has been filed by Vikas Deshpande, advocate, hereinafter referred to as the appellant , under Section 38 of the Advocate 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 :

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 co

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