TMI Blog1997 (2) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... of the firm M/s. Atma Ram Nanak Chand, on August 1, 1979. In the said complaint, the complainant has made the following allegations against the Appellant: (1) The Appellant had colluded with the judgment debtor and had realised ₹ 1,600 from him out of which the sum of ₹ 1,500 was withheld by the Appellant with himself and he did not pay it to the decree holder for a period of eight months inspite of repeated requests and in order to harass the decree holder, instead of handing over the same personally to him, he deposited the said amount in Court on May 2, 1978. The balance amount of ₹ 100 was taken by him as fee from the judgment debtor to enable him to get time from the High Court for procuring stay order in the execution proceedings. (2) The Appellant received ₹ 245 from the judgment debtor for getting some other counsel engaged to get the execution proceedings stayed and to see that the auction of judgment debtor's property was not approved by the court. The Appellant got Shri Mahesh Prasad Tyagi, Advocate engaged from the side of the judgment debtor and charged ₹ 110 for the purpose and that the execution of the decree was delayed due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in pursuance to the said arrangement, the judgment debtor paid a sum of ₹ 1,500 whereupon Shri Nanak Chand made an endorsement on the writ with the Amin about this payment of ₹ 1,500 and the fact that he did not want the auction to be held on November 2, 1977. The Appellant stated that he was prepared to pay up the amount of ₹ 1,500 to the decree-holder if a receipt signed by both the judgment debtor and decree holder firm was given to him but they were not prepared to grant such a receipt and so he had retained the amount with him as a trustee and soon after the receipt of the registered letter from the decree-holder, he had deposited the amount in the court. The Appellant denied having received any amount from the judgment debtor for engaging any lawyer for him for obtaining stay. He also stated that he had not been careless or negligent in any manner as an advocate of the complainant's firm in the execution case and that permission for bidding by the decree-holder under Order XXI, Rule 72, Code of Civil Procedure was not taken by him because it was not necessary in view of the amendment of the said rule by the Allahabad High Court and that no objection on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of loan to Sunderlal, the Disciplinary Committee observed that a single case of advance of loan on interest cannot make out a case of the lender engaging in money lending business. The Disciplinary Committee has, however, found the Appellant guilty of gross professional misconduct on the basis of the following findings: (i) The version of the complainant regarding receipt of ₹ 1,500 by the Appellant from the judgment debtor was acceptable and finds support from the endorsement by Shri Nanak Chand on the writ for auction which states that his advocate had accepted ₹ 1,500 out of the decretal dues from the judgment debtor and had told him that he had given the judgment debtor two months time. The said endorsement falsifies the version of the Appellant that Shri Nanak Chand had received ₹ 1,500 from the judgment debtor and had deposited the amount with him. From the endorsement it cannot be deduced that any arrangement had been arrived at between the decree-holder and the judgment debtor and that the decree holder had accepted ₹ 1,500. It was the Appellant who had granted two months time to the judgment debtor. (ii) The explanation of the Appellant that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gupta, Advocate, at Allahabad, to the judgment debtor was acceptable. It finds corroboration from the conduct of Shri Ram after the receipt of the letter. (vi) Even though the Appellant was a standing counsel for the Railway, he committed professional misconduct in drafting a notice under Section 80, Code of Civil Procedure on behalf of M/s. Agarwal Traders, Ghaziabad, a sister concern of the complainant, for service upon the Union of India through the General Manager, Western Railway and the said notice was served through another lawyer. The complainant had filed the draft of the said notice in the pen of the Appellant as Document No. 16. 7. Shri R. B. Mehrotra, the learned senior counsel appearing for the Appellant, has submitted that the Disciplinary Committee has erred in holding the Appellant guilty of professional misconduct on the basis of the charge relating to notice under Section 80, Code of Civil Procedure having been drafted by the Appellant. The submission is that the said charge was not contained in the complaint filed by the complainant and was put forward for the first time before the Disciplinary Committee of the State Bar Council by the complainant in his a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence solely on comparison made by himself. It is, therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other, and the prudent course is to obtain the opinion and assistance of an expert. [P. 944] 9. In our opinion, it was not advisable for the Disciplinary Committee to base its conclusion purely on the basis of its own comparison of the handwriting. especially when the matter related to a charge of professional misconduct which is quasi-criminal in nature requiring proof beyond reasonable doubt. We are, therefore, unable to uphold the finding recorded by the Disciplinary Committee holding the Appellant guilty of professional misconduct for having prepared the draft of the notice under Section 80, Code of Civil Procedure that was served on the Union of India on behalf of the M/s. Agarwal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate. The post card filed as Document No. 12, which is said to have been received by Shri Ram, does not show that the person who had sent the said post card was the clerk of Shri V. K. Gupta, Advocate. No evidence has been produced to prove that the signatory of the said post card was the clerk of Shri V. K. Gupta, Advocate. In the said post card, there is no reference to Shri V. K. Gupta, Advocate or the person being the clerk of Shri V. K. Gupta. Furthermore, in Ex. No. C-8, which is claimed to be the copy of the post card that was sent by Shri Ram to Shri V. K. Gupta, Advocate, it is stated that the copy of the order dated March 23/24. 1978 passed by the Civil Judge, Ghaziabad in the case of Shri Ram v. M/s. Atma Ram Nanak Chand has been sent but the stay order has not been obtained. We have perused the order sheet of the court in the execution case of M/s. Atma Ram Nanak Chand v. Shri Ram and we find that the said execution matter had not been fixed on March 23 or March 24, 1978 and no order was passed in that case on those dates. In these circumstances, no reliance can be placed on the evidence of Shri Ram that the Appellant had given him the letter dated April 5, 1978 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the proposed settlement did not fructify, the Appellant did not return the amount of ₹ 1,500 either to the decree-holder or to the judgment debtor and continued to retain the same with him till he deposited it in the court on May 2, 1978. The order sheet of the execution case shows that the proceedings had terminated on April 4, 1978. The action of the Appellant in not returning the amount of ₹ 1,500 either to the decree-holder or to the judgment debtor and retaining the same with himself till May 2, 1978 when he deposited it in the court was not in consonance with the standards of professional ethics expected from a senior member of the profession. We are, therefore, of the view that the Appellant has been rightly held guilty of professional misconduct for his having wrongfully retained ₹ 1,500 which had been kept with him in connection with the settlement in the execution proceedings. We think that the ends of justice would be met if the punishment of reprimand is imposed on the Appellant for the said misconduct on his part. 12. We, therefore, partly allow the appeal and, while holding the Appellant guilty of professional misconduct in wrongfully retain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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