JUDGMENT

THAKKAR, J. :— A host of questions of seminal significance, not only for the Advocate who has been suspended from practising his profession for 3 years on the charge of having withdrawn a suit (as settled) without the instructions from his client, but also for the members of the legal prefession in general have arisen in this appeal (Appeal under section 38 of the Advocates Act, 1961) :-

(1) Whether a charge apprising him specifically of the precise nature and character of the professional misconduct ascribed to him needs to be framed.

(2) Whether in the absence of an allegation or finding of dishonesty or mens rea a finding of guilt and a punishment of this nature can be inflicted on him?

(3) Whether the allegations and the finding of guilt require to be proved beyond reasonable doubt?

(4) Whether the doctrine of benefit of doubt applies?

(5) Whether an Advocate acting bona fide and in good faith on the basis of oral instructions given by some one purporting to act on behalf of his client, would be guilty of professional misconduct or of an unwise or imprudent act, or negligence simpliciter, or culpable negligence punishable as professional misconduct?

2. The suit was a suit for recovery Rs. 30,098/- (Suit No. 65/81 on the file of Additional City Civil Judge, Bangalore). It appears that the complainant had entrusted the brief to the appellant which he in his turn had entrusted to his junior colleague (respondent No. 2 herein) who was attached to his office and was practising along with him at his office at the material time. At the point of time when the suit was withdrawn, respondent No. 2 was practising on his own having set up his separate office. On the docket of the brief pertaining to the suit, the appellant made an endorsement giving instructions to withdraw the suit as settled. A sketch was drawn on the back of the cover to enable the person carrying the brief to the junior colleague to locate his office in order to convey the instructions as per the endorsement made by the appellant. The allegations made by the complainant against the appellant are embodied in paragraphs 1 & 2 of his complaint : -

1. The petitioner submits that he entrusted a matter to the Second Respondent to file a case against Shri S. Anantharaj for recovery of a sum of Rs. 30,098/ - with Court costs and current interest in Case No. O.S.1965/81 on the file of the City Civil Judge at Bangalore. The Petitioner submits that the said suit was filed by the first respondent who was then a Junior of the Second respondent. The petitioner submits that the matter in dispute in the suit was not settled at all and the first respondent without the knowledge and without the instructions of the petitioner has filed a memo stating that the matter in settled out of Court and get the suit dismissed and he has also received half of the institution court fee within 10 days since the date of the disposal of the suit. The petitioner submits that he has not received either the suit amount or the refund of court fee and he is not aware of the dismissal of the suit as settled out of court.

2. The petitioner submits that when the case was posted for filing of written statement itself the first respondent has filed such a memo stating that the suit was settled out of Court. The petitioner submits that in fact the respondents did not even inform the petitioner about the dates of hearing and when the petitioner asked the dates of hearing the respondents informed the petitioner stating that his presence is not required in the Court since the case was posted for filing of written statement and therefore, the petitioner did not attend the Court on that day. The petitioner submits that when he enquired about the further date of hearing the respondents did not give the date and said that they would verify the next date of hearing since they have not attended the case since the case was posted for filing written statement by the defendant. The petitioner submits that when he hims