IMPORTANT POINT
Mere negligence or error of judgment on part of an Advocate would not amount to professional misconduct.

JUDGMENT

Dipak Misra, J.

The present appeal preferred under Section 38 of the Advocates Act, 1961 (for brevity, 'the Act') assails the correctness of the order dated 15.10.2006 passed by the Disciplinary Committee of the Bar Council of India in BCI TR Case No.138 of 2005 whereby the said authority has found the appellant guilty of gross negligence in discharge of his professional service to the client and accordingly imposed the punishment of reprimand with a further stipulation that he shall pay a sum of Rs.5,000/-to the Bar Council of India and an equivalent amount to the complainant within two weeks' time from the date of receipt of the order failing which he would stand suspended from practising for a period of six months.

2. As the factual score would unroll, the respondent-complainant engaged the appellant as advocate in respect of a matrimonial dispute and during the pendency of the matrimonial case, the wife of the respondent breathed her last due to kidney failure in the year 2002. The appellant advised the complainant-respondent that as the wife had expired, there was no justification to prosecute any further the case for divorce and it was advisable to withdraw the said litigation. In the meantime, the respondent engaged him to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one Ramachandran in favour of the respondent for a sum of Rs.75,000/-(Rupees seventy five thousand only) had been dishonoured. It is not in dispute that the appellant thought it appropriate not to file a complaint under the N.I. Act but he felt it apposite to file a complaint case before the competent Magistrate under Section 420 of the Indian Penal Code and accordingly he did so. As is demonstrable, the learned Magistrate directed investigation to be conducted under Section 156(3) of the Code of Criminal Procedure. The eventual result of the said investigation has not been brought on record.

3. At this stage, the respondent filed a complaint before the Bar Council of Kerala, principally alleging that the cheque that was handed over to the appellant to initiate criminal action against Ramachandran under Section 138 of the NI Act was not returned to him. On the basis of complaint received, a disciplinary proceeding was initiated against him and eventually the Disciplinary Committee issued a memo of charges on the appellant. It is seemly to reproduce the same :-

“MEMO OF CHARGES

“That Sri Jacob Mathai, Kachirackal House, Marampally, Always entrusted with you to file a case under the provisions of Negotiable Instruments Act against Sri. Ramachandran, Nedumpally House, Marampally for bouncing of cheque dated 04.09.2002; and that you have not filed the case under N I Act; and that the Thandiyittaparambu police station directed the complainant to produce the said cheque to the said police, but you didn't return it so far; and you did it so on the offer of the said Ramachandran to pay you Rs.10,000/-and thereby you had committed professional and other misconduct punishable u/s 35 of the Advocats Act, 1961.”

4. The said memo of charges is dated 22.8.2004. As the Disciplinary Committee of the Bar Council of Kerala could not complete the proceeding within a span of one year, the matter stood transferred to Bar Council of India where it was registered as BCI TR Case No.138 of 2005. Before the Disciplinary Committee, the complainant examined himself and asserted that the appellant was under legal obligation to file the complaint under Section 138 of the NI Act and further, he was obligated to return the cheque. The appellant, in the cross examination before the Disciplinary Committee, stated that he was entrusted with the original cheque along with the photostat copies and the original cheque was handed over to the investigating agency when the investigation commenced in pursuance of the direction issued under Section 156(3) Cr.P.C. by the learned Magistrate. The Disciplinary Committ