TMI Blog2017 (2) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the respondent. Thus analysed, we are disposed to allow the appeal and accordingly, we so direct and the order passed by the Disciplinary Committee of the Bar Council of India is set aside. Though we have set aside the order, on a suggestion being made, Mr. Sanjay Parikh, learned counsel for the appellant, agreed that the amount paid to the complainant need not be refunded. The amount that has been deposited to the Bar Council of India shall be refunded by the Bar Council of India. There shall be no order as to costs. - CIVIL APPEAL NO. 3860 OF 2007 - - - Dated:- 16-2-2017 - Dipak Misra and R. Banumathi, JJ. For The Mr. Sanjay Parikh, Adv, Mr. N. Susan Thomas, Adv., Ms. Srishti Agnihotri, Adv., Ms. Anitha Shenoy, AOR, Ms. Surbhi Agarwal, Adv. For The Respondent : Mrs. K. Sarada Devi, AOR 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 negligenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . AIR 1963 SC 1313]. That apart, he has also placed reliance on a three Judge Bench decision in P.D. Khandekar vs. Bar Council of Maharashtra, Bombay Ors. (1984) 2 SCC 556. 8. Ms. K. Sarda Devi, learned counsel for the respondent supported the order passed by the Disciplinary Committee of the Bar Council of India. 9. Section 35 of the Act reads as under :- 35. Punishment of advocates for misconduct (1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal of its disciplinary committee. (1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other disciplinary committee of that State Bar Council. (2) The disciplinary committee of a State Bar Council shall fix a date for the hearing of the case a notice thereof to be given to the advocate concerned and to the Advocate General of the State. (3) The disciplinary committee of a State Bar Council afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such gross negligence involves moral turpitude or delinquency. In dealing with this aspect of the matter, however, it is of utmost importance to remember that the expression moral turpitude or delinquency is not to receive a narrow construction. Wherever conduct proved against an Advocate is contrary to honesty, or opposed to good morals, or is unethical, it may be safely held that it involves moral turpitude. A willful and callous disregard for the interests of the client may, in a proper case, be characterised as conduct unbefitting an Advocate . In dealing with matters of professional propriety, we cannot ignore the fact that the profession of law is an honourable profession and it occupies a place of pride in the liberal professions of the country. Any conduct which makes a person unworthy to belong to the noble fraternity of lawyers or makes an Advocate unfit to be entrusted with the responsible task of looking after the interests of the litigant, must be regarded as conduct involving moral turpitude. The Advocates-on-record like the other members of the Bar Advocates are Officers of the Court and the purity of the administration of justice depends as much on the integr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m efficient, effective and credible. 13. Slightly recently in Dhanraj Singh Choudhary v. National Vishwakarma (2012) 1 SCC 741, it has been observed:- The legal profession is a noble profession. It is not a business or a trade. A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. An advocate s attitude towards and dealings with his client have to be scrupulously honest and fair. 14. There can be no doubt that nobility, sanctity and ethicality of the profession has to be kept uppermost in the mind of an Advocate. Keeping that primary principle in view, his conduct has to be weighed. There the approach of appreciating the evidence brought on record and the yardstick to be applied, become quite relevant. A three-Judge Bench in P.D Khandekar (supra) while dealing with the scope of an appeal preferred under Section 38 of the Act, ruled that in an appeal under Section 38, this Court in a general rule, cannot interfere with the concurrent finding of fact by the Disciplinary Committee of the Bar Council of India and the State Bar Council unless the finding is based on no evidence or it proceeds on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary Committee of the Bar Council of India has held that there was gross-negligence on the part of the appellant. 17. On a studied scrutiny of the evidence in this context, the factual score, the act of the present appellant cannot be treated to be in the realm of gross negligence. It would be only one of negligence. The tenor of the impugned order, as we notice, puts the blame on the appellant on the foundation that he had not received the acknowledgment. He has offered an explanation that he had given the cheque to the police. There has been no delineation in that regard. That apart, there is no clear cut analysis on deliberation on gross negligence by the advocate. The Disciplinary Committee found the appellant guilty of gross-negligence as he had failed to get the acknowledgment from the complainant-respondent. The examples given by the Constitution Bench are of different nature. In the obtaining factual matrix, therefore, we are unable to accept the conclusion arrived at by the Disciplinary Authority of the Bar Council of India that the negligence is gross. Hence we are impelled not to accept the submission advanced by learned counsel for the respondent. 18. Thus analysed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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