TMI Blog1961 (7) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... unt that D had retained and for which he failed to render accounts to him. The two petitions filed by Sir Mohammed Yusif and Abdul Rahman against D as a solicitor were referred to a committee of the Incorporated Law Society. The latter submitted a report exonerating learned Chief Justice was not satisfied with the report and therefore, referred the matter to Shelat J for further investigation and report. After a full enquiry into the matter. Shelat J came to the conclusion that D had retained a sum of ₹ 3,10,791-2-0 (which will hereinafter referred to as a sum of Rs,. 3 lakhs and odd) and failed to render account in respect of the same to his client, Sir Mohammed Yusif. He however, found that the charge levelled by Abdul Rahman in respect of the evince proceedings was not established., the complaint made against D and S as advocates was referred to the Bar Council. This complaint was comprehensive and also included the charge regarding the evince proceedings,. The matter was referred to a tribunal of the Bar Council and the tribunal took the view that all the changes were established against both the advocates., after the report of the Bar Council was received, the learned Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplaint before that date. Although, therefore the petition has actually been filed on 8th February 1961, after the coming into operation of the new Rules the petition would be quite in order and would be governed by the old Rules. After some discussion, Mr. Gupte, who appeared on behalf of D conceded the position and pointed out that his purpose in raising the question was to challenge the right of Sir Mohammed Yusuf or Abdul Rahman to appear through as counsel to represent them in these proceedings. According to Mr. Gupte after the Advocate General has lodged the petition, the proceedings are proceedings between the Advocate General on one side and the attorney and the advocate on the other and the private parties who initiated these proceedings have no locus standi. He argued that the same would be the position under the Bar Council Act. We do not think it necessary to decide this question, because there is no doubt that the Court has discretion to allow a party to be represented through an advocate or a counsel in these proceedings. In view of the complexity of the issues involved in these proceedings and in view of the fact that Sir Mohammed Yusuf and Abdul Rahman are vitally c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... govern the present case inasmuch as the acquisition has been made not under the Land Acquisition Act but under the Requisitioned Land (Continuance of Powers) Act. 1947. Mr. Guppy pointed out that the voucher (Ex. 2) in the present case, to which reference will be made hereafter, is headed by the letters 'CC' as is the case with the voucher in appendix V under the Financial Rules. He, therefore, suggested that the practice followed by the paying authorities under the Requisitioned Land (Continuance of Powers) Act must be based on the Financial Rules. No, questions were asked to Jasjitsingh on this point and in the absence of any evidence we are left only to speculate on the matter. Again, there is a departure in the voucher in the present case from the voucher at appendix V. The words 'paid in my presence etc'. appearing at the foot of the form at appendix V are not mentioned in the voucher at Ex. 2. But assuming that the principle underlying the Financial Rules is applicable to the present case, we are unable to understand how these Rules help Mr. Gupte in the argument that he is advancing. Rule 25 under the heading 'General Principles and Rules' for instanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d during the recess caused by the absence of Mr. Palkhiwalla abroad with a view to create evidence to show that a copy of the recording letter was handed over to Abreo, the Estate Manager. That is how Ex. 28 acquires so much importance in this case. Let, us therefore, turn our attention to that all-important document. It is the case for D and S that Abreo, came along with S to the office of Payne and Co. It is not, however, their purpose of receiving a copy of that important letter. It is suggested that Abreo came there for some work of the trust. It is further suggested that Abreo used to go to the office of Payne and Co. very frequently, if not almost on every day Ex. 28 runs thus: Received from Messrs. Payne and Co. copy letter dated 1st April 1950 addressed by them to Mr. S dated this 1st day of April 1950. (8) We have already pointed out that no reference was made to Ex. 28 either in the correspondence or in the replies of D and S. Similarly, Abdul Rahman was never confronted with Ex. 28. It is difficult to understand as to why a copy of the letter was handed over to Abreo. It was an extremely important letter and in the ordinary course, we would have expected D to hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hwhile to quote D's own words: . . . . It is false to say that Mr. Abreo's receipts is a got-up document and that R.. Abreo never passed receipt. . . . (9) In spite of this no attempt has been made to examine Abreo. D has admitted that he knew that Abreo had left the services of Abdul Rahuman in the year 1953. It is however, suggested that although Abreo has left Abdul Rahman's services, he still continues to be his tenant. Surely, that does not mean that Abreo is under the influence of Abdul Rahuman. Abreo appears to have a tendency to remain present on all important and crucial occasions. According to D and S, Abreo was present on the 28th March when Ex. E was passed by Abdul Rahman in their favour; that he was also present on the 30th march, when according to them, payment was made by S and D to Abdul Rahman and that he again remained present on the 1st April 1950 when a copy of the recording letter was given to him and we will show presently that he was also present on the 4th April 1950 for receiving the copy of the bill of Payne and Co. Which has also ask important bearing in this case. Obviously, therefore, Abreo is an extremely important witness to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st April 1950 addressed by us to Mr. S. Ex. 27/1 is the original of the copy letter which I handed over to Mr. Abreo in respect of which he passed the receipt, Ex. 28 . (12) Mr. Peerbhoy contended that the entire document (Ex. 28) could not be admitted in evidence inasmuch as D had only proved the signature below the document. The Tribunal gave a ruling stating that in their opinion proof of the signature was not proof of the contents of the documents, which bears the signature. They added that it would be open to Mr. Peerbhoy to contend that despite the admission of the document on record what was proved was that the document bore the signature of Abreo and not that their contents were true . In their report, the tribunal have stated that proof of the signature does not amount to proof of the contents of Ex. 28 nor did it mean that even if Abreo had received that copy letter. He showed it to Abdul Rahman at any time . According to the Bar Council Tribunal, the evidentiary value of Ex. 28 even if it is held proved was almost nil. As pointed out above the mode of proving Ex. 28 that was initially undertaken by D was to identify the signature of Abreo as a person who was acquaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd observed: Section 67 of the Indian Evidence Act only permits the proof of the signature or handwriting of the person signing or writing the document to be given and considers it to be sufficient in those cases where the issue between the parties is whether a document was signed or written wholly or in part by that person. The section does not go so far as to say that even if it was proved that the signature or the handwriting of so much of the document as was alleged to be in the handwriting of the person, was in his handwriting, it would go to prove the contents of that document. No doubt the proof in so far as it was sought to be given in the evidence could have established that those documents were signed or written in the handwriting of Deshpande, Paranjape or Jamnadas: but the matter could rest there and would carry the plaintiff no further. (12) From the facts as they appear from the judgment, it appears to us that the evidence given by Deshmukh in that the evidence given by Deshmukh in that case amounted to proving the handwriting of the persons concerned under section 47 of the Evidence Act. We are inclined to the view that the proof of the handwriting by a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant was that neither of them had actually seen the appellant writing any of the letters nor were they shown to have such intimate acquaintance with his correspondence as to enable them to speak to the genuineness of these signatures. The trial Judges as well as the learned Judges of the High Court had found that there were sufficient number of admitted or proved letters which might well enable Jassawalla and the complainant to identify the signature of the appellant in the disputed letters. They also laid stress substantially on the contents of the various letters, in the context of the other letters and telegrams to which they purported to be replies and which formed the chain of correspondence as indicating the genuineness of the disputed letters. The learned counsel objected to this approach on a question of proof. Their lordships of the Supreme Court observed: We are, however, unable to see any objection. The proof of the authorship of the document and is proof of a fact like that of any other fact the evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the evidence of the recipient of the document would be material to establish the authorship of the document. This was the real decision that was given by the Supreme Court in Mubarik Ali's case. Even the general observations viz, It (proof) may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents or of the signature by one of the modes provided in sections 45 and 47 of the Indian Evidence Act are not of much help to Mr. Gupte. As pointed out above, at the initial stage D tried to resort to the mode of proving spoken of in section, 47 of the Evidence Act but at a latter stage, shifted the ground and tried to five direct evidence of the execution of the document. It is true that proof of the signature or of the handwriting by one acquainted with the handwriting is a recognised mode of proof under section 47 of the Evidence Act. Therefore, is so far as D says that he recognised the signature of Abreo, the latter's signature can be taken to have been proved under section 47 of the Act. but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons advanced for the rejection of hearsay are numerous, amount them being the irresponsibility of the original declaring, the depreciation of truth in the process of repetition, the opportunities for fraud which its admission would offer and the waste of time involved in listening to idle rumour. The two principal objections, however, appear to be the lack of an oath administered to the originator of the statement, and the absence of opportunity to cross-examine the absence of opportunity to cross-examine him . (20) The Advocate General drew our attention to a decision of House of Lords in Marioa Sturla v. Filippo Freccia, (1879) 5 A.C. 623. In that case, the report of a committee appointed by a public department in a foreign state was admitted in evidence as a public document. It was, however, held that it was not admissible as evidence of all the facts stated therein. In that case the facts were: The document in question, a report of certain persons called the Ginunta di Marina at Genoa, was sought to be put in evidence for the purpose of proving that person who was formerly consul for the Genoese Republic in London, and the succession to whose daughter, Mrs. Brown, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os an entry in the outward register of Payne and Co., which shows that the bill was despatched by hand to Sir Mohammed Yusuf on 3-5-5-. Ex.32 is a letter purporting to have been written and signed by Abrea on 4th May 1940, which shows that Abrea on 4th May and left the letter on the table. The letter further stated that Abdul Rahman would be coming it settle the bill. It is further the case for D that Abdul Rahman went to the office of D the same day and settled the bill and paid as sum of ₹ 2,200/- in full satisfaction of the same,. the bill was for a total sum of ₹ 3,000/- but, at the instance of Abdul Rahman, the amount was reduced by Daji to Rs,2,200/- and Abdul Rahman paid this amount in cash. According to Abdul Rahman, he had not received the copy of the bill at any time nor did he settle the bill and paid as sum of ₹ 2,200 in cash in full satisfaction of the same., he asked for a copy of the bill in 1956 and a copy was supplied to him. the question as to whether Abdul Rahman actually received the bill on the 3rd or the 4th May 1950, as alleged by D, is of considerable significance in the case, because if Abdul Rahman had received the bill in the month of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, the letters Dy do not appear. It was also pointed out that in respect of the bill for evacuee proceedings (Ex. 41) to which reference will be made hereafter none of the entries makes any mention, whatsoever, of the diary. It is possible that this may be case of mere omission. The fact, however, remains that the original diary is not available and it is not possible to ascertain as to whether there was an entry in the diary corresponding to the entry in the bill (Ex. 32) under the date 30-3-1950. It is significant that the omission should occur in respect of a vital entry. Apart from these circumstances, which raise strong suspicion against the genuineness of the entry dated 30-3-50, it is clear to our mind that the statements contained in the entry dated 30-3-50 are neither admissible in evidence nor have any probative value, even if admitted in evidence. The entries in the bill may be admissible for the limited purpose of showing as to what work was done and what fees were charges for a particular piece of work. The entries would not be admissible for showing the truth of the contents of those entries. [ After further dealing with the case (Paras 46 to 54) His Lordship pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, in which case, instead of Article 89, Article 120 of the Indian Limitation Act would apply, and limitation will begin to run from, the accrual of the cause of action, that is, refusal to pay the money. The question of allowing lapse of time is not, therefore a question of limitation, but really a question, which affects the probabilities of the case one way or the other. In order to explain the delay, Abdul Rahman has put forward the following circumstances, which resulted in his making a belated demand. He says that on the 3rd April 1950. D told him that after adjusting the bills of S and Payne and Co. the balance would be returned to him. It is further his case that D never submitted his bills in regard to the Acquisition proceedings and that S submitted his bills in about the month of February 1951. That is the first reason assigned by Abdul Rahman in not insisting upon the payment of the money till the middle of 1951. The second reason assigned by him is that D got the evacuee proceedings started against him and these proceedings terminated in September 1951. Even after the termination of these proceedings, he was kept under the belief by D that the said proceedings were kep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instructions of D. Abdul Rahman was not very particular in putting on record that D was accountable for the money. He was, more or less, indifferent to the entry made in the account books, which showed that it was S who was accountable for the money. So far as Abdul Rahman was concerned, he was all along under the impression that the compensation amount would be received by both the pleaders and D was primarily answerable to him for the amount. It was not, therefore, necessary for him to insist upon D passing a receipt for the amount allowed to lie with him. It is true that Abdul Rahman was somewhat reluctant to sign a blank receipt. But, the fact remains that he ultimately put his signature below a blank receipt. He has assigned good reason as to why he agreed to put his signature below the blank receipt. It is also true that he had asked a question as to why some amount was accepted in cash. It must however, be remembered that D offered a plausible explanation, which satisfied Abdul Rahman. Abdul Rahman, therefore, had no reason to be suspicious about D. There was, therefore, no occasion for him to insist upon D to pass a receipt for the amount in his favour, particularly whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance of the amount received by you . Abdul Rahman has explained this admission by saying in his cross-examination before the Bar Council Tribunal: . . . . What was meant by this was that, I was asking Mr. D and Mr. D was to ask Mr. S to make the payment. . . . (28) The answer to the point raised by Mr. Gupte is not to be found in the explanation offered by Abdul Rahman. The answer is to be found in the circumstance that from the information gathered by Nagindas from the record that was available in the Collector's office, it came to the notice of Abdul Rahman and Nagindas that S had received the money and had passed a receipt to the Collector in token thereof. It is for that reason that the first letter (D/- 11-6-56) was directed to S and S was called upon to render accounts. It was not possible for Navingdas to seek to involve D at that Stage. Even the statement that demands were made on S through D conflicts with the stand taken on behalf of D and S, according to whom, payment was made to Abdul Rahman on the 30th March 1950. Mr. Gupte taken relied upon the admission made by Padaki to the effect that D told him (Padaki) that the sum of ₹ 3 lakhs and odd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y D to S amounted to a release given by one joint promise to another joint promiser. The analogy is inappropriate both metaphorically and legally. We have, of course, reached the conclusions by following different routes and by embarking upon a more elaborate discussion. We, therefore, hold that both D and S have fabricated the document (Ex. E), the authority-cum-receipt, that they accepted cash payment with the object of embezzling the same, if possible in future; that the prepared false evidence in the shape of Ex. 27 to show that the amount was repaid; that D first of all tried to persuade Abdul Rahman to allow him to keep the moneys till the accounts were adjusted; that thereafter he utilised the evacuee proceedings to strike terror in the heart of Abdul Rahman and to keep a stronghold to him so that he may not demand the return of the money, that he extorted a sum of ₹ 15,000 from Abdul Rahman on a representation that the same would be paid to the informant for hushing up the evacuee enquiry; that after the end of evacuee proceedings, D tried to keep the compensation money as a reward for saving the family of Sir Mohammed Yusuf from ruin as a result of the evacuee procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es on the question of the final order to be passed on the basis of the findings arrived at by us and also about the order to be passed regarding costs. So far as the final order, to be passed on the basis of the findings against D and S, is concerned, the only appropriate order that we can pass is to remove them from practice and strike their names off the roll. So far as D is concerned, his name will be struck off from the rolls of both the Solicitors as well as the Advocates and so far as S is concerned, his name will be struck off from the roll of the Advocates. The charges against them are of a serious character and we have no adequate words to condemn the behaviors of these two Advocates he is a Solicitor of about 33 years standing. He has enjoyed the confidence of Sir Mohammed Yusuf and his family M/s. Payne and Co. have been the family solicitors of Sir Mohammed Yusuf for a long time. It is clear that D has abused the confidence placed him by Sir Mohammed Yusuf and his son and attorney, Abdul Rahman, D has brought disgrace to the noble profession to which he belongs. He has trampled down the high traditions of the Solicitors profession. The only adequate punishment that can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, it was Mr. Peerbhoy, who mainly argued the matter before us. We feel that the ends of justice would be met, if we award costs to the petitioner to the extent of one-fifth of the cots to be awarded to the Advocate General. There now remains the question as to who should be bear the burden of costs and in what proportion. S does not come into the picture so far as the proceedings before the Incorporated Law Society and Shelat J. are concerned. All the costs will therefore, have to be borne by D in those proceedings. Both D and S have appeared and contested the proceedings before the Bar Council Tribunal as also before this Court. Taking into account all the circumstances that have transpired in this case, we are inclined to the view that the burden of costs would be borne by S and D in the proportion of 1:4 in these proceedings and in the proceedings before the Bar Council Tribunal. A notice was issued to the Bar Council and the Bar Council has appeared before us through Mr. Ramnath Shivlal and he pressed for the costs. We do not think that the Bar Council is entitled to any costs in these proceedings. In the same way, the Incorporated Law Society has been represented before u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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