1. This is a complaint by Kr. Amarsingh of Sa-balpore, Tehsil Parbatsar, of professional misconduct against Shri Madan Mohan, an advocate practising at Parbatsar,. District Nagaur.
2. The material facts are these. One Lalia Jat of village Laroli, Tehsil Parbatsar, had made a report, some time in April 1951, at the police station Parbatsar against the petitioner Kr. Amarsingh that he accompanied by some other persons had managed to steal several cart-loads of grass belonging to the complainant.
Shortly after, the petitioner's Kamdar Nath-mal happened to go to Parbatsar and meet Shri Madan Mohan. During the course of conversation between Nathmal and Shri Madanmohan, the latter is alleged to have told Nathmal that he had very good relations with the Sub-Inspector of Police, Parbatsar, who was his caste-fellow and hoped to hush up the complaint against Kr. Amarsingh provided a handsome bribe be paid to the Sub-Inspector through Shri Madan Mohan, otherwise the Thikana people would be in trouble.
Thereupon Nathmal reported the whole matter to the petitioner, and it is said that the latter sent Rs. 150/- with Nathmal to Shri Madan Mohan for being paid as bribe to the Sub-Inspector in connection with Lalia's complaint. Nathmal went to Shri Madan Mohan and gave the sum of Rs. 150/- but the latter told Nathmal that the Sub-Inspector would not be satisfied with only Rs. 150/- and wanted Rs. 250/- more.
Nathmal then suggested to Shri Madan Mohan that the latter might write a letter to Kr. Amarsingh to that effect. Accordingly Shri Madan Mohan wrote the following which is Ex. 1.
'My Dear Kr. Sahib,
The S. I. P. is not prepared to take Rs. 150/-He wants more. Kindly let me know whether we should pay more or stop payment. Hoping to hear soon from you.
(Sd.) Madan Mohan.'
Nathmal handed over this letter which bears no date to Kr. Amarsmgh in due course. Amarsingh was, however, not prepared to pay anything more and says to have seat Nathmal to get the sum of Rs. 150/-, which had already been sent, back from Shri Madan Mohan. Nathmal went taut Shri Madan Mohan refused to return the money and said that he would talk the matter over with the petitioner.
Thereafter the petitioner alleges to have met Shri Madan Mohan at Parbatsar and asked him to return the money. Shri Madan Mohan said that he 'had already paid Rs. 150/- to the Sub-Inspector of Policer and that he could not return it. Thereupon the petitioner filed this complaint on 9-8-1951, in this Court praying that the conduct of Shri Madan Mohan was criminal and highly unprofessional and called for suitable action.
The reply of Shri Madan Mohan was a complete denial of the story of bribery although he admitted to have written the letter to the petitioner, which has been quoted above in extenso. The story put forward by Shri Madan Mohan is that he had written the said letter under entirely different circumstances and those circumstances were briefly these.
According to Shri Madan Mohan the Sub-Inspector of Police had a cow and Thakur Berisal-singh of Sabalpore, father of Kr. Amarsingh, had seen it with the Thakur of Maglana, and Thakur Berisalsingh liked the cow and had written to Shri Madan Mohan that if the Sub-Inspector was willing to sell it for Rs. 150/-, he would be glad to purchase it at that price. (See Ex. A-l dated Mali Sudi 3 Smt. 2006, corresponding to 21st January, 1950 from Thakur Berisalsingh to Shri Madan Mohan).
The Sub-Inspector, however, wanted more money for the cow and was not willing to part with it for Rs. 150/- and this, according to Shri Madan Mohan, was the reason how he happened to write Ex. 1, and he explained that he wrote the latter to Kr. Amarsingh', as the Thakur had said that he was likely to go out on a short pilgrimage and might take some time to return.
Shri Madan Mohan's version is that he had sent this letter through one Lalsingh. In support of his case, Shri Madan Mohan has also produced a further letter from Thakur Berisalsingh dated Maha Sudi 9, Smt. 2006 (corresponding to 27th January, 1950) in which he stated that he was not prepared to pay more than Rs. 150/- for the cow and that the deal might be abandoned.
Shri Madan Mohan further pleaded that his relations with Kr. Amarsmgh were considerably strained, as the relations of Kr. Amarsingh with his father Thakur Berisalsingh were not happy and Shri Madan Mohan was standing counsel for Thikana Sabalpore and had firmly stood by the Thakur during all these years; and he further stated to have been responsible for having given an award against Kr. Amarsingh in some dispute between him on the one side and his father and his younger brother on the other.
He further stated that he had appeared against Kr. Amarsingh in certain cases, and the present complaint was the result of the animosity which Kr. Amarsingh bore against him. In those circumstances this complaint was referred to a tribunal of the Bar Council consisting of three members. The tribunal after having made the necessary inquiry, have sent in their report.
The majority of the tribunal were of the opinion that the charge of professional misconduct framed against Shri Madan Mohan has not been proved and, therefore, the complaint deserved to be dismissed; while one member came to the conclusion that Shri Madan Mohan engaged himself in the negotiations for the payment of bribe to the Sub-Inspector of Police, Parbatsar, and that this amounted to professional misconduct on his part.
3. Before proceeding further, we may point out that 011 22-10-1954 011 22-10-1954 , the petitioner submitted an application before the tribunal that he did not wish to proceed with his complaint and that it be dismissed as withdrawn inasmuch as he had preferred his complaint on the information supplied to him by his Kamdar Nathmal but that the latter had left his service and he had no confidence in him.
He also stated in his application that he had no other evidence by which he could prove his complaint and that Shri Madan Mohan had also 110 objection to its withdrawal and would not raise any claim for costs. The tribunal did not accept this application and proceeded with the inquiry and in doing so they acted with perfect propriety.
4. The questions for determination in this complaint are whether the letter Ex. 1 was written by Shri Madan Mohan in connection with the offer of bribe to the Sub-Inspector of Police, Parbatsar, as alleged in the complaint and further whether the story put forward by Shri Madan Mohan that he had written it in connection with the negotiations for the purchase of a cow by Thakur Berisalsingh from the Sub-Inspector of Police is worthy of belief.
We have carefully considered all the material in connection with the version of Shri Madan Mohan and we are of opinion that we are not at all impressed by it. So far as this aspect of the case is concerned, both the majority and the minority opinion in the tribunal are more or less the same, and even the majority stated that they entertained a serious doubt regarding the veracity of Shri Madan Mohan's version relating thereto.
We concur in this opinion and may briefly give our own reasons. In the first place, Madan Mohan's letter Ex. 1 makes no mention of a 'cow' at all. If the letter was written in connection with the purchase of a cow, it should not have been at all difficult for him to have worded his letter differently.
Then we have the sentence 'Kindly let me know whether we should pay more or stop payment'. To our mind, it is impossible to fit this sentence in the context of the negotiations for the purchase of a cow.
Again, if the Sub-Inspector wanted more, namely, a further sum of Rs. 250/-, one should have expected this figure to be mentioned in the letter. There was no necessity nor any propriety to use an expression as vague as 'pay more'. To say the least, we find it extremely difficult to accept the explanation offered by Shri Madan Mohan.
The two letters Ex. A-1 and Ex. A-2 dated 21-1-1950 and 27-1-1950, respectively emanating from Thakur Berisalsingh and produced in support of the story have a ring of artificiality about them, which it is impossible to miss. The Thakur wrote the first letter himself and wanted the reply to be sent to his son Amarsingh as he said he was going out on a pilgrimage; and why should he have wanted this to be done, we fail to see, as on the showing of Shri Madan Mohan himself the Thakur wrote the second letter six days after the first.
The purchase of the cow was not such an important matter nor was of such urgency that it could not have waited for six days without a direction proceeding from the Thakur to Shri Madan Mohan that in his absence he should write to his son.
It is also striking that the Thakur was also not produced in evidence. Haying regard to all these circumstances we are definitely of the opinion that the explanation offered by Shri Madan Mohan as to the letter Ex. 1 is not at all convincing and must be rejected as highly improbable.
5. This, however, does not conclude the controversy against Shri Madan Mohan. The question still remains whether the petitioner Kr. Amarsingh has succeeded in establishing the charge against Shri Madan Mohan, which was' in these terms:
'That you on some day between 21-4-1951, & 4-8-1951, advised Nathmal, Kamdar to the petitioner Kunwar Amar Singh of Sabalpur, to arrange payment of a suitable sum of money as bribe to the Sub-Inspector of Police, Parbatsar with a view to induce the latter to hush up a report lodged with the Police by one Lalia Jat of village Laroli, Tehsil Parbatsar, against the petitioner U/S 379, I.P.C., that the said Nathmal handed over a sum of Rs. 150/- to you to be given as bribe to the Sub-Inspector of Police for the aforesaid purpose, that you asked the petitioner to send more money saying that the Sub-Inspector of Police was not prepared to accept the sum of Rs. 150/- and was demanding more money and that you declined to return the said amount of Rs. 150/- to the petitioner on the petitioner's refusal to pay any further sum'.
Now, the petitioner has failed to put Nathmal into the witness-box. He was the most vital link to prove his case. In fact it was Nathmal who had throughout come into contact with Shri. Madan Mohan except at the very last stage when according to the allegation made by the petitioner in his complaint, he himself had gone to Shri Madan Mohan to get back the sum of Rs. 150/-but the latter had declined to return it.
The petitioner's explanation for his omission to put Nathmal into the witness-box is that he had left the petitioner's service and it is suggested that he had marched over to the other side. Be that as it may, Nathmal has not been produced and, therefore, the whole case against Shri Madan Mohan depends upon the testimony of Kr. Amarsingh only.
Much of this testimony in so far as it relates to what Shri Madan Mohan told Nathmal and the latter passed on to Kr. Amarsingh is hearsay, and, therefore, inadmissible in evidence, and we cannot take that into consideration. For certain other things mentioned by Kr. Amarsingh, Nathmal would have supplied valuable evidence but that is denied to us.
The story given by Kr. Amar Singh in his complaint was that after Nathmal had gone to Shri Madan Mohan to get back the sum of Rs. 150/- and the latter had refused to return it, the petitioner himself met Shri Madan Mohan at Parbatsar and asked him to return the sum of Rs. 150/-. Shri Madan Mohan replied that he had given the money to the Sub-Inspector of Police and that the latter was not prepared to return it.
Kr. Amarsingh seems to have gone back on his statement before the tribunal and he categorically stated that he did not contact the opposite party personally for the purpose of receiving back the money. It clearly appears to us, therefore, that the petitioner was either lying in the beginning when he made the complaint or he was lying before the tribunal so far as this and the only time when he himself came into contact with Shri Madan Mohan is concerned.
There is no other evidence available in the case. In this state of circumstances, we find it difficult affirmatively to come to the conclusion that the charge has been brought home to the accused beyond all reasonable doubt.
6. At this stage we wish to make reference to certain important principles which have to be borne in mind in deciding cases of professional misconduct, and the standard of proof which it is necessary for the complainant to attain to prove such a charge. The first case to which we wish to refer in this connection is -- 'Emperor v. Surjya Narayan Singh', AIR 1920 Pat 84 (FB) (A). A Full Bench of the Patna High Court made the following observations in a case under Section 13, Legal Practitioners Act.
'The Court is entirely unable to understand why a different standard of proof of guilt should be required in a case like the present from that which is necessary in any other legal proceedings. The proof which is required in order to convict on a criminal charge is that which leaves no reasonable doubt in the mind of the court that the offence, has been committed.
To adopt a different standard of proof in cases arising under the Legal Practitioners Act would, in our opinion, be an entirely novel departure and unjustifiable on any known principle of law. To remove a person from his profession, for what amounts to a criminal offence upon evidence which would not support a conviction on a criminal charge, cannot possibly be Justified.'
In 'A, a Pleader v. Judges of High Court, Madras', AIR 1930 PC 144 (B), which was a case under Section 10 of the Letters Patent of the Madras High Court, their Lordships of the Privy Council laid down as follows:
'Before dealing with the charges it is right to state that, in their Lordships' opinion charges of professional misconduct must be clearly proved and should not be inferred from mere ground for suspicion, however reasonable, or what may be mere error of judgment or indiscretion. An appropriate guide may be found in Section 13, Legal Practitioners Act, No. 18 of 1879.'
Their Lordships further observed that the evidence in serious cases of this character should be carefully judged according to the ordinary standards of proof. It appears to us clear that the same principles which govern inquiries under Section 13, Legal Practitioners Act should apply to inquiries under Section 10 of the Bar Councils Act.
The same view appears to us to be deducible from the judgment of their Lordships of the Supreme Court in -- 'Bhataraju Nageshwara Rao v. Judges of Madras High Court', (S) AIR 1955 SC 223 (C), where their Lordships said after examining the facts and circumstances of the case that the charges had not been brought home to the appellant, or, at any rate, the appellant was entitled to the benefit of the doubt.
7. This then being the correct approach to cases for disciplinary action against members of the bar, we feel constrained to come to the conclusion that the petitioner has failed to establish the charge of professional misconduct against the opposite party with the requisite degree of proof although we consider that his conduct in this case is attended with the gravest suspicion. As things stand on this record, however, we feel that the petitioner himself has suppressed facts, and Nathmal who was a most essential link in the chain of proof has not been examined. We pause to point out in passing that it would have been better if the tribunal had itself summoned this witness and examined him for what he was worth.
We ourselves seriously examined the desirability of having him examined even now but we have come to the conclusion that this would serve no useful purpose at this stage in the cir-cumstances of the case and it would merely tend to protract these proceedings without advancing the petitioner's case.
8. The result is that we dismiss this complaint accordingly but without any order as to costs.