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In Re: an Advocate of the High Court. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1931)61MLJ148
AppellantIn Re: an Advocate of the High Court.
Cases ReferredSee Anandalwan v. The Judges of
Excerpt:
- - muthukrishna aiyar, to whose assistance i must acknowledge our great indebtedness, had not attempted to defend and that he would be better advised to turn his attention to the circumstances that seemed to tell heavily against himself. the parties seem to have been on good terms till the end of 1924. early in 1925, that is to say on 11th february, the complainant sent a notice (ex. krishnaswami aiyangar became nervous and told me it is better the suit is withdrawn. the truth seems to be that he withdrew not because his advocate was nervous or had deceived him, but because he anticipated, as he had anticipated in the small cause court, an adverse decision and hoped to escape the worst consequences by consenting to a decree. 1,200 is no better. however, he swears that they were and.....waller, j.1. the facts have been set out at length in the finding of the tribunal and it is not necessary for me to recapitulate them. briefly, the questions for decision are whether-(1) the two payments relied on by the respondent were made on the dates alleged,(2) the receipts produced by him in support of them were given to him by the complainant on those dates, and(3) his letters of june and november, 1924, and the connected certificates of posting are genuine.2. that the burden of proof is on the complainant is clear. that he is a witness, whose evidence needs corroboration, is equally clear. parts of his story, so far as it relates to the last promissory note (ex. xxii) are not credible and have been rightly rejected by the tribunal. it is impossible to believe that this note.....
Judgment:

Waller, J.

1. The facts have been set out at length in the finding of the Tribunal and it is not necessary for me to recapitulate them. Briefly, the questions for decision are whether-

(1) the two payments relied on by the respondent were made on the dates alleged,

(2) the receipts produced by him in support of them were given to him by the complainant on those dates, and

(3) his letters of June and November, 1924, and the connected certificates of posting are genuine.

2. That the burden of proof is on the complainant is clear. That he is a witness, whose evidence needs corroboration, is equally clear. Parts of his story, so far as it relates to the last promissory note (Ex. XXII) are not credible and have been rightly rejected by the Tribunal. It is impossible to believe that this note represented an advance for the proposed purchase by him of some ground from the Wesleyan Mission or that he lent the respondent money to buy stamps for that purpose. In these respects he has shown himself to have little regard for truth. That, however, is not by itself enough to conclude the controversy against him. The respondent seems to think that it is and devoted the greater part of an argument extending over nearly five days to a series of attacks on his character and credibility in this connection. It was pointed out to him repeatedly, but largely in vain, that he was attacking a position, which Mr. Muthukrishna Aiyar, to whose assistance I must acknowledge our great indebtedness, had not attempted to defend and that he would be better advised to turn his attention to the circumstances that seemed to tell heavily against himself. This advice he would follow for a short time, but he always returned in the end to the same argument-that the burden of proof was on the complainant, who should not be believed. It being conceded that the complainant's evidence must be corroborated, the question is whether sufficient corroboration of it is forthcoming. He has to prove a series of negatives and the only corroboration of his denials that can be expected is to be looked for in the circumstances, the probabilities and the conduct of himself and the respondent at the relevant stages of their dealings with each other. Judged by this test, I think that ample corroboration is forthcoming. At every turn the respondent's story is beset with doubts and difficulties, which' have not been satisfactorily solved. The majority of the Tribunal do not deny their existence, but have found in his favour in spite of them. Their finding is based largely on their acceptance of the evidence of one Srinivasa Aiyangar and on Exs. R and U. I may say at once that, in my opinion, the evidence of Srinivasa Aiyangar should have been rejected and that Ex's. R and U do not justify the construction placed on them, They do not necessarily give rise to an inference that, at the; time at which they were written, little or nothing was due on Exs. A and B.

3. With these observations, I will now proceed to the period at which the controversy began. The parties seem to have been on good terms till the end of 1924. Early in 1925, that is to say on 11th February, the complainant sent a notice (Ex. C-2) to the respondent, demanding from him the amounts due on Exs. A, B and XXII and also on some other loans not evidenced by documents. In this notice he referred to his having handed over some title-deeds in connection with a proposed sale of some of his property to the Wesleyan Mission and to the respondent having promised his help in the transaction. He asked the respondent either to complete; the sale in a fortnight or to return the deeds and drew his attention to Ex. XXII, which he described as having been given in connection with the proposed sale. The respondent received the notice on 16th February, but did not answer it till 22nd. His reply is Ex. D. In it he admitted receipt of the title-deeds and did not deny his alleged connection with the proposed sale. He admitted having taken some small loans from the complainant, but denied that they amounted to the sum claimed. As regards Exs. A and B, he expressed surprise that the complainant had not given him credit for payments of Rs. 235 in the one case and Rs. 1,200 in the other. It is significant that, while referring to the payment of Rs. 235 as having been made in December, 1923, he did not give the day and that, in respect of the alleged payment of Rs. 1,200, he mentioned neither the month nor. the year nor the day. It is significant also that he did not mention that he held receipts for the payments. His explanation is that he did not wish to furnish the complainant with information which would give him an opportunity to fabricate false evidence. The explanation seems hardly adequate. If the receipts which he subsequently produced were genuine, the complainant could scarcely have been unaware of their existence or of the dates on which and the amounts for which they had been given and there could have been no risk in telling him what he already knew. As regards Ex. XXII, the respondent did not deny that it had been given to him in connection with the proposed sale to the Mission. Some comment has been made on the fact that the complainant did not at once repudiate the allegations in Ex. D. But he did not receive the letter till towards the end of the month and he seems to have spent some time in trying to induce the respondent to show to a friend of his the documents by which he proposed to support his plea of part-payment. This appears from Ex. S, a postcard written by the respondent on 13th March, in which he offered to lay his papers before some arbitrators, a somewhat strange offer, if he was in possession of incontrovertible proof of the alleged discharges. The complainant replied the next day with an intimation that he saw no necessity whatever for arbitration and proposed to take immediate action to recover his money. Thereafter he filed three suits in the, Small Cause Court, claiming in one the amounts due on Exhibits A and B, in another the amount due on Ex. XXII and in the third the amount due on the other loans. Two of the suits, including that on Exs. A and B, were heard by the Chief Judge of the Court-Mr. Tiruvenkata-chariar, who was afterwards an additional Judge of this Court -and had reached the stage of argument. At that point, the respondent discovered that Mr. Tiruvenkatachariar was prejudiced against him and that it was desirable both in his interest and in that of the complainant that the controversy between them should be decided elsewhere. All the three suits were, on his application, transferred to the High Court, where they were numbered as C.S. Nos. 8, 9 and 10 of 1926. The trial of them was begun by the present Chief Justice, then Beasley, J. The complainant was examined and cross-examined and nothing remained but for the respondent to go into the box and clear his character. Instead of doing so, he intimated to the Court through his advocate, Mr. K. Krishnaswami Aiyangar, that he wished to withdraw his defence in all the three suits and to confess judgment for the full amount claimed in each agreeing at the same time to pay a consolidated sum of Rs, 1,000 by way of costs. Beasley, J., allowed the defence to be withdrawn and passed a decree in the above terms, adding that, as the respondent had produced and was relying on as genuine some receipts and other documents, which Were attacked as forgeries, he could not allow the matter to rest as it was and proposed to take disciplinary steps against him. It is certainly remarkable that a litigant, who had realized that his reputation and professional status were at stake and had had the suits transferred to the High Court for the purpose of obtaining a decision between himself and the complainant, should have avoided the witness-box and submitted to judgment in this manner. The majority of the Tribunal declined to allow their judgment to be influenced by his behaviour. I cannot agree that his conduct either in the Small Cause Court or in the High Court can or should be left out of consideration. He got himself out of the Small Cause Court at the very last stage, evidently because he anticipated that Mr. Tiruvenkatachariar, who had heard all the evidence, would decide against him. That is what the litigant seeking a transfer usually describes as prejudice. His other ground for a transfer was that a decision by the High Court was preferable. Having reached the High Court, he shirked its decision. Why? His explanation in his own words is this 'Mr. K. Krishnaswami Aiyangar became nervous and told me it is better the suit is withdrawn.' The next morning he went and saw Beasley, J., and he came and told me 'I saw the Judge. He advised me to withdraw the defence and nothing will come out of it.' So it was withdrawn. This is, of course, a gross and manifest falsehood. If Mr. K. Krishnaswami Aiyangar had said anything of the sort, the respondent, when he learnt that Beasley, J., so far from letting the matter drop, was proposing to take disciplinary action, would have turned on his advocate and asked why he had been deceived. This, however, is far from being what followed. On the contrary, he continued to employ the same advocate in the subsequent proceedings before Beasley, J., conduct which is quite irreconcilable with the plea that he adopted the fatal course of withdrawing his defence on a representation by him which he almost immediately discovered to have been false. The truth seems to be that he withdrew not because his advocate was nervous or had deceived him, but because he anticipated, as he had anticipated in the Small Cause Court, an adverse decision and hoped to escape the worst consequences by consenting to a decree. I can see no reason why his conduct in twice shirking the decision of a Court should not be taken into account against him. He complains not without reason--of the great delay that has marked the proceedings against him, but I must observe that he is himself not entirely without blame in the matter. He might have secured a judicial decision five years ago, but avoided it.

4. I now turn to the alleged part-payments on Exs. A and B. Possibly the greatest difficulty in the respondent's way is to explain why, when he was. in a position to pay so much, he left in each case, an improbably small balance unpaid-Rs. 11-8-0 in one case and Rs. 62-8-0 in the other. What is his explanation Simply that he had no more money immediately available at the moment. That, I consider, is quite incredible. A man who was able to raise Rs. 235 on one occasion and Rs. 1,200 on another could have had no difficulty in raising an additional Rs. 11-8-0 and Rs, 62-8-0. More than that, his explanation is, on his own showing, untrue in regard to the part-payment on Ex. A. He has accounted for another payment to another person in April, 1924, by swearing that he had then the sale-proceeds of the 1923 crop from his land. The sale-proceeds must have been realized by April, 1923, and were available to him in December, 1923, at the time of the part-payment. It is no explanation to say that they were in the hands of his nephew in his village. Why should he have left them unproductive, while he had interest to pay on a number of loans Why, again, when he made the part-payment of Rs. 1,200 on Ex. B, did he not use part of that money to discharge Ex. A completely? He was going to leave a balance on Ex. B in any event, why did he not make it somewhat larger and get back Ex. A? His story is artificial and improbable in the highest degree. He could not allege complete discharge, for the notes remained in the promisee's hands ,and he seems to have adopted a device which, while accounting for the promisee's possession, would relieve him of practically the whole of his liability. Each note had been renewed by endorsement a few days earlier-curiously enough, exactly twelve days in each case-and it is not apparent why the complainant should have pressed for early payment. That is not what usually happens under such circumstances. Apart from that, he had according to the respondent-just refused a part-payment on Ex. A. Why was he content with a part-payment on 22nd December?

5. When we come to the sources from which the money for the payments was derived, there are further difficulties. The payment on Ex. A is alleged to have been made on 22nd December, 1923. On 1st November the respondent borrowed Rs. 180 from the Mylapore Fund. This sum, he says, he offered to the complainant, who refused to accept a part-payment. What became of it? His first story was that he spent it for some other purpose and made the payment on 22nd December out of his professional earnings. His last version was that he added it to his earnings and so was able to pay Rs. 235, a further variant being that he 'probably got some money' from his village. Before us, beyond pleading lapse of time, he was quite unable to account for these variations or to say which of them was correct. At one time, he said that his earliest version must be true; at another, that he probably had some of the Rs. 180 left. It is difficult to believe that there could be so much doubt and difference about the source or sources of the money, if it really was paid. The evidence about the payment of Rs. 1,200 is no better. The main source of it-to the extent of Rs. 900-was, according to his earliest statement, the sale-proceeds of his crop of 1924, which were brought by his wife and his nephew from his village in September. At a later stage a different version was put forward-that Rs. 550 represented the sale-proceeds and that he borrowed the other Rs. 350 on Ex. XXXIII from Srini-vasa Aiyangar. The only explanation of this variation he had to offer is that his evidence was incorrectly recorded in the Small Cause Court. It is extremely unlikely that, if he had said that the Rs. 900 came from two sources one would have been omitted. What makes his story quite incredible is the fact that in the Small Cause Court he did not refer to Srinivasa Aiyangar as a witness or to the promissory note. He says that his advocate told him that it was not necessary to produce the note. That cannot be true. It was essential that all his evidence should be produced and no advocate would have given such advice. When the suit reached the High Court, the note was, no doubt, included in the affidavit of documents and Srinivasa Aiyangar was cited as a witness, but the defence was given up. The majority of the Tribunal accepted the evidence of Srinivasa Aiyangar, a close relative, by the way, of the respondent-and, on the strength of it, overlooked all the defects and difficulties in this part of the respondent's case. I cannot agree in their conclusions. If the note was genuine and Srinivasa Aiyangar a true witness, both would have been relied on in the Small Cause Court. They regarded the attestation of the discharge of Ex. XXXIII by a witness, whom they described as 'respectable,' as a confirmation of its genuineness. This was to treat not only as evidence, but further as valuable evidence what was not evidence at all. The witness in question was not before them and they were not justified in assuming either that he was respectable or that, if he had appeared, he would have acknowledged his signature.

6. So far, then, there is every circumstance of improbability and doubt both about the alleged payments and the sources from which the money for them came. But that is by no means all. The receipts themselves and the envelopes in which they are enclosed (Ex. K series) supply internal evidence that, though they are said to have come into existence on two dates separated by an interval of nine months, they probably were got up at the same time. To begin with the envelopes. Why the receipts were put up in envelopes addressed to the respondent, though they were delivered to him in person, is not apparent. However, he swears that they were and there can be no doubt but that his first story was that the, complainant himself typed not only the receipts, but the addresses on the envelopes as well. At a later stage, when he saw that there was a lion in the path, he threw out a suggestion that the complainant's daughters might have typed the addresses. The reason for the change is plain. His house is called 'Summer House.' The complainant knew the name of the house and in all his admittedly genuine correspondence has spelled it correctly. On the two envelopes in question, it has been spelt 'Summur,' a mistake that he might possibly- though that is open to doubt-have committed once, but certainly would not have committed on two occasions separated by an interval of nine months. The respondent replies that it is not likely that he either would have committed such a mistake, but he may very well have employed a typist who was not equally well informed and spelled phonetically. The doubt raised by this mis-spelling is accentuated by something in the receipts themselves. There are strong grounds for supposing that they were typed on a kind of machine that the complainant does not own or use. The machine he owns and uses is a Remington 10. We have had the numeral 'I' and the small '1' typed for us on a number of different classes of machines. Most of them-among them the Remington 10-employ different symbols for the two. Some of them employ the same. The receipts appear to have been typed on one of the latter class, for in them the ''I'- and the small '1' are indistinguishable. On the other hand, all of the complainant's typewritten letters, which are admitted to be genuine, appear to have been typed on a machine of the former class; in them, the two symbols are different. Here, then, again we have something appearing in two receipts said to have been typed by the complainant at different times, which does not appear in any of his genuine letters during the relevant period. This, no doubt, is a difficulty which was raised for the first time before us, but it is real enough and the respondent can offer no explanation of it. Nor does any explanation seem to be possible, except that the receipts were not typed by the complainant or on his machine.

7. Next come Exs. L and L-1, the certificates of posting, with copies, on them of the letters which the respondent is said to have sent to the complainant in June and November, 1924. Here, again, it is most unfortunate for him that the certificates have been tampered with and the letters were never replied to by the addressee. It is obvious and admitted that Ex. L first of all contained only one letter, that two letters were added and that the word 'one,' at the bottom has been altered into 'three' and the word 'only' added. One of the added letters is addressed to the complainant and the copy of it on the back of the certificate is to the effect that the respondent had already 'almost discharged' Ex. A and would discharge Ex. B without fail. No satisfactory explanation is forthcoming of the reason why it was written. It was sent from the respondent's village in Tanjore District and was sent in response to no letter or written demand from the complainant. The explanation offered for the alteration in the numbers at the bottom is absurd. The respondent suggests that the postmaster made them. On his own showing that could not have been the case. He sent, he says, the certificate and one letter only to the postmaster, who returned them because he had not got his seal. Later he wrote two more letters, added them and sent them and the certificate back to the postmaster. If that was so, the latter would not have written 'one' in the first instance before returning the certificate and the respondent must have written it himself. And if he did that, why should it be supposed that he did not alter the 'one' into 'three only' also? He admits that he generally entered the numbers himself and the writing in question appears to be his. An argument was pressed on us that applies both to Ex. L and to Ex. L-l. It is that a line is generally drawn on the certificate from the last letter down to the bottom, which would make the addition of fresh letters impossible. Exs. L and L-l themselves supply the answer. Both, on respondent's own showing, were sent to the postmaster and returned by him, after which some letters were added. In that case, the respondent would have drawn a line from the last letter entered in each in the first instance, which he did not do and the lines evidently were drawn later. Ex. L-l also contains three letters. Admittedly, in its first state, it contained one or possibly two letters and the number at the bottom has been altered from 'one' or 'two' into 'three', apparently in the respondent's own writing. The entries were originally in pencil and have been inked over. What is his explanation It is that he sent the certificate, in which he had entered one or two letters in pencil, that the postmaster returned it to be inked in and that he entered one or two more letters and then returned it. The critical letter is, of course, the third, which also was originally written in pencil and subsequently inked in. A little thought would have shown the respondent how completely foolish his explanation was. If he sent the certificate with one or two letters, entered in it in pencil and the postmaster returned it to be inked in, the added one or two letters would not have been entered in pencil, as they undoubtedly were. They would have been written in ink in deference to the postmaster's request. If, on the other hand, all had been entered at once in pencil and were subsequently inked in at his request there would have been no need to alter the number. The letter said to have been sent to the complainant (Ex. Y) is a discourteous and combative communication, which contained an allegation that Exs. A and B had been almost completely discharged. It is not apparent why, if such a letter really was sent, the complainant ignored it. It is not the sort of letter that he would have ignored. Yet on 15th December, three weeks after he should have received Ex, Y, he wrote a reminder (Ex. U) to Ex. R, in which he made no reference whatever to Ex. Y. Ex. U is dated 15th December and was not sent by post, but delivered by hand. The respondent might have replied to it at once and drawn attention to Ex. Y. What he did was to wait nearly a month and then send a conciliatory reply from his village, in which there was no reference whatever to Ex. Y. It seems to me that there are the very strongest grounds for concluding that Exs. L and L-l contain forged entries, and that the letters entered in them and purporting to have been sent to the complainant were never sent at all.

8. The respondent's case therefore breaks down at every point. There are difficulties and doubts at every turn. The alleged payments are improbable. The sources from which the money for them was derived are, to put it, mildly, in serious doubt. The receipts themselves look as if they had come into existence at the same time and could not have been typed on the complainant's machine. And Exs. L, L-l and Y which are relied on as corroborative evidence are open to the gravest suspicion of having been fabricated for the purpose of supporting the original forgeries. It is not possible to believe that a series of payments, receipts and letters--all connected with and arising out of the same transactions would, if they were genuine, be without exception open to the gravest doubt at every stage.

9. The only other documents to which I must refer are Exs. R, U and II. The majority of the Tribunal attached great importance to the two first letters, being of opinion that their language indicated that little or nothing can have been due on Exs. A and B at the time when they were written. I cannot agree that it justifies such an inference. It is true that the complainant was demanding payment on Ex. XXII, that he said that he wanted to call in all his money and that he did not refer to Exs. A and B at all, but it-seems to me perfectly clear that Ex. R was written with a definite purpose and that that purpose was connected with the transaction in respect of which Ex. XXII came into existence. It will be remembered that the complainant, when he came to Court, set up a new case in regard to Ex. XXII-that it was, in fact, given as an advance for a proposed purchase by him from the Wesleyan Mission. Why he did so is not apparent. The truth appears to be that Ex. XXII was given in connection not with a proposed purchase from, but with a proposed sale to the Mission. That was the case he set up in Ex. C-2, which the respondent did not deny. It is idle for the latter to pretend that his help was not sought in that matter and that he always deprecated the proposal as chimerical. In the Small Cause Court his advocate admitted that negotiations began about the middle of 1921 and that his client agreed to speak to the Rev. Mr. Leith. Ex. O written in December refers to 'Your present attempt,' which indicates that there must have been an earlier attempt and confirms the admission in the Small Cause Court. The respondent now wants us to believe that the negotiations began in December. His object apparently is to dissociate Ex. XXII, which came into existence in September, from them and he points to the complainant's reference in Ex. C-2 to 'so early as November, 1921' as supporting him. The reference to November, however, seems to have been an inaccuracy, for the complainant later in Ex. C-2 used with reference to Ex. XXII the phrase 'in this connection,' that is to say in connection with the negotiations. I conclude then that the loan without interest in September, 1921, was given in order to secure the respondent's influence with Mr. Leith. The negotiations hung fire and in October, 1924, the complainant became, impatient and wrote Ex. Q and its enclosure Ex. R. Looking at the terms of Ex. Q, I am satisfied that it must have been written in order to be shown to some third party, who was to be impressed by two things-by the complainant's high social position and by his urgent desire to bring the negotiations to a close. Ex. Q expressed that desire, and emphasized his position and Ex. R was intended to show that he was calling in his money in order to build on the land, if the negotiations failed. Viewed in that light-as a piece of bluff-(for there is nothing to show that the complainant had any serious intention of building on the land)-the omission to refer to Exs. A and B in Ex. R is without significance. That letter was written with a definite purpose relating to a transaction in respect of which Ex. XXII had been given and it is natural that Ex. XXII alone should have been mentioned in it. And Ex. U being merely a reminder, it is equally natural that it also did not refer to Exs. A and B. The majority of the Tribunal attached considerable importance to Ex. II and to the complainant's admission that he. regarded it as a genuine reply to a genuine demand. I am myself unable to see anything in Ex. II that helps the respondent. It was sent in answer to Ex. U, which was a demand on Ex. XXII and naturally replied only to that demand. What is significant is the change in its tone from and its omission to refer to Ex. Y. On 26th November the respondent protested angrily against being pressed to discharge Ex. XXII and slipped on a reference to the partial discharge of Exs. A and B. He was pressed again on 15th December, but instead of protesting once more and at once, he waited till 12th January, when he sent in a perfectly polite letter, in which he referred neither to Ex. Y nor to Exs. A and B. This confirms the view that Ex. Y came into existence after Ex. II.

10. I considered with care all that the respondent has said in his defence and every piece of evidence in his favour and against him. In the result, I think that only one conclusion is possible -that the payments were' not made, that the receipts are forgeries and that Exs. L and L-l and the letters entered on them are forgeries also. For misconduct of such gravity there can be only one penalty and that penalty must be inflicted. Respondent is removed from practice and his name is struck off the roll of advocates.. It is true, as he has pointed out, that there has been very great delay in dealing with his case, but I see no reason to suppose that it has resulted in any evidence in his favour having disappeared. He will pay the costs of the proceedings before the Tribunal and before this Court.

11. On the other points taken by the respondent, I concur in the opinion expressed by my brother Anantakrishna Aiyar. On the question raised by my brother Reilly, as to the inadvisability of substituting a disciplinary enquiry for a prosecution in a case of grave criminal misconduct, I see no necessity to express any opinion.

12. In the case before us, the only person who could order a criminal prosecution was Beasley, J. As he, declined to do so, cadit quaestio.

Reilly, J.

13. [His Lordship stated the facts leading to the reference to the High Court and continued : ]

14. At the beginning of our hearing the respondent contended that the Tribunal had no power under the Act or the rules made under it to submit more than one report and that the report and finding of the majority of the Tribunal alone had any validity and alone could be considered by us. Although we did not at the time come to any finding in regard to that contention, it was intimated to the respondent that on this occasion we should not consider the report of the third member of the Tribunal against him. We now agree that, as stated in the judgment of my brother Anantakrishna Aiyar, we are entitled to consider the reports and findings both of the majority and the minority of the Tribunal; but in this case we have not considered the minority report. I may add that I agree also with the opinion of my brother Anantakrishna Aiyar in the judgment to be delivered by him on the objections raised by the respondent to the validity of the present proceedings against him.

15. It will be observed that the charges against the respondent are in effect charges of very serious criminal offences. They amount at least to charges that he has abetted the forgery of two receipts acknowledging the payment of money and has abetted forgery in respect of the two certificates of posting and in respect of all those documents that he has dishonestly used them as genuine knowing them to have been forged. If he is guilty of abetting the forgery of the two receipts, Exhibits K and K-l, or of using them with knowledge that they had been forged, for either of those groups of offences alone he is liable under the Indian Penal Code to transportation for life or to imprisonment for 20 years. And for those offences, which were not connected with any professional work nor committed when he was acting in any professional capacity, we are in effect trying him in these proceedings. With great respect I do not think it would be right for me to refrain from making it clear that this procedure appears to me to be both incorrect and objectionable. Misconduct which is the subject of inquiry under the Bar Councils Act may often involve the commission of criminal offences. The criminal offence involved may sometimes be of a petty nature, such as trespass or assault, or may be only incidental to the misconduct which is the serious matter alleged against the advocate concerned. In such cases it may often be quite unnecessary to insist that the criminal charge should be disposed of before the advocate's conduct is investigated under the Bar Councils Act. Again the criminal offence alleged against the advocate may be such that he can be prosecuted for it only on the complaint of a private person, which has not been made, or may be one in respect of which it is obviously appropriate that the complaint should be made by a private person and no such complaint has been made. In either of those cases there may be nothing improper or inappropriate in launching an inquiry into misconduct under the Bar Councils Act, although the criminal charge involved has not been disposed of. But when, as in the present case, the advocate is accused of a grave criminal offence, for which no private complaint is required, to deal with him under the Bar Councils Act for the misconduct involved in the commission of that offence before he has been tried for the offence appears to me altogether improper. If he is guilty of the criminal offence, he should be punished for it as if he was an ordinary member of the public. If he is tried and convicted of it, then on the basis of that conviction he can be dealt with appropriately under the Bar Councils Act. But, if before he is subjected to any criminal prosecution, the offence alleged against him is made the subject of proceedings for misconduct under the Bar Councils Act, that may have very serious consequences. To begin with, the advocate will be tried in effect for the criminal offence by a procedure unknown to the criminal law on the evidence of witnesses who have never appeared before the Judges who have to decide the case, it appears to me clearly improper that, unless we are compelled to do so, we should make such a grave departure from the ordinary criminal procedure prescribed by law. In many cases such a course might be gravely prejudicial to the advocate concerned. It is true that the Judges, though they can blast an advocate's character by finding him guilty of the criminal offence in such a case, can impose no penalty such as is provided by the Penal Code; but that is not a sufficient reason for depriving him of the protection which the criminal law gives to an ordinary accused person. And on the contrary the finding and procedure in such an inquiry as this may well obstruct the course of justice and shield the advocate from the penalty to which he is liable under the ordinary law of the land. It may well happen that an inquiry under the Bar Councils Act may result in an acquittal in a case where the ordinary course of investigation and prosecution would have ended in a conviction; and that acquittal would almost certainly save the advocate from further prosecution on the same charge. But a much more serious aspect of the matter is that, if a Bench of this Court as the result of an inquiry under the Bar Councils Act found an advocate guilty of the criminal offence alleged against him, it is extremely likely that he would escape the due punishment provided for his offence by the Penal Code. If he had been found guilty by a Bench of this Court, he could urge with great effect that by that he would be so seriously handicapped in any trial for the same offence before an ordinary Criminal Court that it would be unjust to subject him to it. And, if he had elected to give evidence in the inquiry under the Bar Councils Act and to subject himself to cross-examination, he could, and no doubt would, claim additional shelter from any subsequent criminal prosecution on the same charge. In this country no accused person can be subjected to cross-examination, and the fact that he had been so subjected and material had been so elicited for use against him would enable him to represent himself as a most gravely aggrieved person in any subsequent prosecution, even if there were no great substance in the grievance. In the present case Beasley, J., was induced to choose this inquiry into the respondent's conduct instead of a criminal prosecution in order that the respondent should have a chance of giving evidence and offering himself for cross-examination. It does not appear to me at all improbable that under the guise of anxiety to offer himself as a witness the respondent was manoeuvring to shelter himself from subsequent prosecution. But, whether that was his intention when he made his representation to Beasley, J., or not, I have no doubt that that objection would be taken to any subsequent prosecution. Beasley, J., has stated that he was influenced in the course he took by his opinion that it is desirable that accused persons should have an opportunity of giving evidence in their own behalf. For myself I may say that a long experience of criminal trials in Courts of every grade in this Presidency leaves me in doubt whether it would be advantageous in this country to allow accused persons the right to give evidence in their own behalf. But without discussing that question I may perhaps point out with the greatest respect that the law of this land neither gives an accused person that privilege nor subjects him to the danger of cross-examination, which must go with it. That being so, with the greatest respect it does not appear to me proper to deflect the ordinary procedure on account of any such consideration. In my opinion, if an advocate is accused of criminal offences such as those alleged against the respondent and the Judge to whose notice they come regards it as, expedient in the interests of justice that an inquiry should be made into them, as I understand Beasley, J., regarded it, the ordinary criminal procedure, which would apply to any other man, should be followed : so far as the criminal offences are concerned the advocate should be allowed to gain no advantage nor be subjected to any disadvantage from proceedings to which a private person against whom such offences were alleged would not be liable : least of all should he be shielded from the ordinary penal consequences of what he may have done : he should be tried like any other person according to the ordinary law of the land; when that has been done, it will be time enough to deal with his professional position if necessary. I feel so strongly that we ought not to be trying the respondent for these criminal offences alleged against him that even after all the delay there has been in this case I should not have consented to take part in these proceedings at this stage but should have proposed that they be adjourned until the respondent had been tried by a Criminal Court, if that had still been possible. But, as it is alleged that the criminal offences with which he is accused were committed in respect of documents produced in Court in proceedings to which he was a party, Section 195, Code of Criminal Procedure, precludes any Criminal Court from taking cognizance of those offences except on a complaint from the Court of Small Causes or from this Court, and Beasley, J., decided that no such complaint should be made. It happens therefore that the respondent is protected from any criminal prosecution in the matter. In the peculiar circumstances of this case he can be dealt with only in proceedings under the Bar Councils Act, and for that reason I join in these proceedings, though with great reluctance.

16. I may mention that in England it has long been the established rule that disciplinary action may be taken against attorneys and solicitors for conduct of a criminal character which shows them unfit to exercise their professional functions, even if they have not been tried on the criminal charge involved. In Stephens v. Hill (1842) 10 M. & W. 28 that rule was applied to an indictable offence. But in that case, where the charge against the attorney was of misconduct in a cause in which he was professionally engaged, Lord Abinger said that

if the attorney has been guilty of something indictable in itself but not arising out of the cause ( in which he is engaged professionally) the Court would not inquire into that with a view to striking him off the roll but would leave the party aggrieved to his remedy by a criminal prosecution.... Where indeed the attorney is indicted for some matter not connected with his profession of an attorney, that also is a ground for striking him off the roll, although in that case it cannot be done until after conviction by a jury.

17. In In re Hill (1868) L.R. 3 Q.B. 543, where an attorney admitted an act of misappropriation committed, not when he was acting as attorney, but as clerk to other attorneys, Cockburn, C. J., said that

if there had been a conflict of evidence upon the affidavits, that might be a very sufficient reason why the Court should not interfere until the conviction had taken place.

18. In In re Chandi Charon Mitter I.L.R. (1920) 47 C 1115 the rule in England is, I think, correctly indicated, namely that, if an attorney is charged with a criminal offence not done in connection with his professional work, then, if the act is indictable and is fairly denied, the Court will not proceed against him for misconduct until he has been convicted by a jury. That rule, if we followed it--and I can see no reason why we should not do so-would be sufficient to prevent disciplinary action being taken in a case such as this until the advocate had been convicted by a Criminal Court. But in this country I think we should go farther, and, when the charge against an advocate is of a grave criminal offence, for the prosecution for which no private complaint is necessary nor essentially appropriate, the charge should first be tried by a Criminal Court, even if the offence is alleged to have been committed in connection with the advocate's professional work. The reason given by Lord Abinger in Stephens v. Hill (1842) 10 M. & W. 28 for not waiting for the criminal conviction before taking disciplinary action is that the party aggrieved might delay, or fail to undertake, prosecution. That reason does not apply in this country in a case where the Court can make a complaint under Section 476, Code of Criminal Procedure, nor in a cognizable case in which information is given to the Police, nor in any other serious case in which a Magistrate authorizes investigation by the Police. In all those cases, if a complaint is made by the Court or the Police are set in motion, a criminal prosecution is likely to come to an end not less speedily, and in general more speedily, than an inquiry by a tribunal of the Bar Council followed by proceedings before a Bench of this Court. Apart therefore from the special reasons which I have mentioned, which may lead in this country to proceedings under the Bar Councils Act seriously handicapping an advocate in subsequent criminal prosecution on the same charge and so in effect precluding him from being subjected to prosecution, the reason of delay in prosecution or failure to prosecute, which may have justified disciplinary action in England on a criminal charge, on which the practitioner had not yet been tried by a Criminal Court, is of practically no force in this country even when the criminal offence is alleged to have been committed in connection with the practitioner's professional work. In my opinion, when the essential charge against the advocate or legal practitioner concerned is that he has committed a grave criminal offence either in connection with his professional work or entirely outside it, the only course just alike to him and to the public is that he should first be tried by a Criminal Court like any other man, gaining no advantage and suffering no disadvantage from his professional position. That we should weigh the scales for him or against him in that matter would be worse than deplorable, and I see no adequate reason why we should adopt any course likely to have that effect. If the criminal trial ends in a conviction, then it will be for this Court to consider under the procedure prescribed by the appropriate Act what disciplinary action should be taken. Even if the practitioner is acquitted in the Criminal Court, it may be necessary in some cases to take disciplinary, action against him either because he has been acquitted on a technical point or because the conduct proved against him, though not criminally punishable, merits such action. But the question of criminal guilt will be tried where it should be, in a Criminal Court. When the criminal offence alleged is trivial or only incidental to serious misconduct of another nature or it is possible or appropriate that the practitioner should be tried for the criminal offence only on the complaint of a private person, then the disciplinary proceedings need not be delayed because no criminal prosecution has been undertaken, though, if a criminal prosecution is in progress or imminent, it may often be desirable even in such cases that the disciplinary proceedings should be postponed until the prosecution has come to an end. I am glad to find that my view that, when the essence of the charge against the practitioner is that he has committed a grave criminal offence, even though its commission was in connection with his professional work, he should be tried by a Criminal Court before disciplinary action is taken against him has been adopted by three Benches of the Calcutta High Court, namely in In re Chandi Char an Mitter I.L.R. (1920) 47 C. 1115 In the matter of Rajendra Kumar Dutta and Abdul Khateque (1925) 30 C.W.N. 186 and In the matter of Satis Chandra Singha (1927) 31 C.W.N. 554, though, if I may say so with respect, the reason given in the first of those cases for requiring a criminal prosecution to be undertaken does not appear to me to be the only one. In the present case, as I have mentioned, it is not alleged that the criminal offences with which the respondent is charged were committed in any connection with his professional work.

19. On the facts of this case I agree with the finding of my brother Waller.

20. [His Lordship discussed the evidence in detail and after stating the reasons for disagreeing with the opinion of the majority of the Tribunal of the fear Council concluded : ]

21. I regret that I have found it necessary to criticise the report of the majority of the Tribunal at such length. It is our duty to take that report into careful consideration and, if we differ from it, to state our reasons. The hearing before the Tribunal was spread over 7 1/2 months; the evidence was recorded at intervals on 17 occasions; and the arguments were heard on six occasions spread over 5 1/2 weeks. No doubt the members of the Tribunal find it difficult to hear such a case continuously. But it appears to me probable that many of the defects to be found in the report of the majority are due to this method of hearing. In my opinion, however, they were engaged on a task which was not properly theirs. The Bar Council has no machinery to investigate, nor have its members the time to hear a long criminal case. If this case had been investigated and prosecuted in the ordinary course, it would have been over years ago, its hearing would have occupied far less time, and the facts would have been more completely presented. Both the members of the Tribunal and Mr. Muthukrishna Aiyar, whom they appointed to conduct the case, were at a serious disadvantage in handling it.

22. I agree that the respondent must be found guilty on all parts of the charge framed against him and that he must be removed from practice and ordered to pay the costs of these proceedings and of the proceedings before the Tribunal.

Anantakrishia Aiyar, J.

23. In this case the Tribunal of the Bar Council appointed by the Chief Justice consisted of three members; and after hearing the allegations against the advocate and considering the evidence, two members of the Tribunal were of one opinion and the third of a different opinion. The question was raised before us whether the High Court is entitled to consider the findings recorded by the dissentient member, or whether the High Court's consideration should be confined to examining the correctness or otherwise of the findings arrived at by the majority. Our attention was drawn to Rules 3, 4 and 9 of the rules framed by the High Court, and to the relevant sections of the Bar Councils Act. When a Statutory Tribunal is invested with jurisdiction over a particular matter, the general rule is that the opinion of the majority should be taken to be the opinion of the body with reference to matters properly within its jurisdiction. It was argued that the High Court should consider only the opinion of the majority of the Bar Council Tribunal, and should ignore the findings and reasonings of the minority.

24. In cases where a statutory body is charged with the duty of giving advice to a final executive authority, the policy would seem to be to require the advice to be put in a definite form, and not to be accompanied with the dissenting opinion, if any, of the minority. For example, Rule 45 (3) of the Madras Legislative, Council Electoral Rules, provides that

the report shall be in writing and shall be signed by all the commissioners. The commissioners are forthwith to forward their report to the Governor, who, on receipt thereof, shall issue orders in accordance with the report, and the orders of the Governor shall be final.

25. Under Rule 46-

if either in their report or upon any other matter there is a difference of opinion among the commissioners, the opinion of the majority shall prevail, and their report shall be expressed in the terms of the views of the majority.

26. When, however, the report or findings have to be submitted by one Judicial Tribunal to another Judicial Tribunal, which latter has got jurisdiction and the duty to examine the correctness or otherwise of the report or findings submitted by the former, it would be advisable to have the opinions of all the members of the Tribunal which inquired into the matter in the first instance, so that the final judicial authority may have the benefit of the opinions, reasonings and findings of all the members of the Tribunal on the relevant questions when the decision of the case in the last resort rests with the higher Judicial Tribunal. In pursuance of such policy and to make matters clear, similar provisions have been made by the Legislature-for example, in Section 265 of the Code of Criminal Procedure,

when a criminal case is tried by a Bench of Magistrates, if the Bench differ in opinion, any dissentient member may write a separate judgment.

27. We find that some of the High Courts have framed rules under the Bar Councils Act on this point. For example, Rules 13 and 14 framed by the High Court of Calcutta are as follows : -

Rule 13. The finding of the majority of the Tribunal shall be the finding of the Tribunal in case of difference of opinion, provided that a dissentient member of the Tribunal may record his dissent by a note in writing.

Rule 14. The finding of the Tribunal shall be in writing and the same shall be forwarded with such a note of dissent, if any, to the High Court in the manner provided by Section 12(2).

28. Referring to the rules framed by the Rangoon High Court, Rule 10 runs as follows : -

In the case of an inquiry by the Tribunal the finding shall be signed by each member thereof, and the members may, if not unanimous in opinion, record separate findings.

29. Rule 7 framed by the Allahabad High Court states that

the Tribunal shall then proceed to consider and record its findings, provided that each member of the Tribunal shall, if he so desires, be entitled to record a separate finding.

30. As far as we have been able to ascertain, the Bombay High Court has not framed any specific rule on the point now before us. Rule 3 provides:

The Tribunal shall then consider its finding and remit it with a copy of its reasons through the Bar Council to the High Court.

31. Rule 6 is to the following effect : -

In all matters not provided for by these rules, the Tribunal will follow the principles of natural justice.

32. It may be that as a matter of practice members of the Tribunals of the Bar Council may or may not think it advisable to record dissentient findings; but that is a matter entirely for the Tribunal of the Bar Council. So far as the High Court is concerned, with which alone rests the final decision on the merits of the case, prima facie the reasoning and the opinion judicially formed by the minority of the Bar Council Tribunal would also be useful in arriving at the final result.

33. Under Section 11 of the Act, the Tribunal may consist of an even number of members (four); and if in such cases the members are equally divided in opinion, there would be difficulty in saying which of the findings should be taken to be the findings of the Bar Council Tribunal for the purpose of the Act.

34. To make matters clear, it seems to us desirable that specific rules should be framed on the point.

35. Pending further consideration of the point, it was intimated to counsel on the first day of hearing that the findings submitted by the minority (which happens in this particular case to be against the advocate) would not be taken into consideration. After considering the point, we are of opinion that the High Court is also entitled to take into consideration the findings submitted by the minority, though we may state that in the present case we have come to the conclusion on the merits of the case ourselves independently of the opinion of the minority of the Bar Council Tribunal.

36. Again, it was argued that under Section 10 of the Letters Patent, the full Court of 14 Judges should deal with this matter, and that a Bench of three Judges has no jurisdiction to hear this case. We are unable to agree with this contention. Section 10 of the Letters Patent empowers the High Court to remove or suspend from practice, on reasonable cause, any advocate of the High Court. A rule has been framed that 'Every inquiry under Clause (10) of the Letters Patent shall ordinarily be heard and determined by a Bench of three Judges'-see Rule 8 at page 7 of the Appellate Side Rules. On Justice Beasley's report to the then Chief justice, the Chief justice referred the matter to three judges to whom was assigned the duty of dealing with such cases, and in accordance with their opinion the late Chief justice directed the matter to be referred to the Bar Council for enquiry, and appointed three members of the Bar Council to form the Tribunal for enquiring into the matter. After the findings of the Bar Council were received, the present Chief justice appointed the present Bench of three Judges for hearing this case. It seems to us that in the circumstances this -Bench is entitled to hear this matter. We may also state that when a similar objection was raised before the High Court in Mr. Anandalwan's case, the Bench consisting of three learned judges, disposed of the objection as follows : -

Objection was taken to the competency of this inquiry, the first objection being that this Bench of three Judges is inadequate, and that the matter should be dealt with by the Full High Court under Section 10 of the Letters Patent. This entirely ignores the rules framed under that clause which delegate the duty to a Bench of three Judges, and this has been the invariable practice in this Court.

37. In the appeal to the Privy Council, Rule 8 under which 'every inquiry under Section 10 of the Letters Patent shall ordinarily be heard and determined by a Bench of three Judges' was referred to by the Privy Council, and the Privy Council observed that 'several objections to the procedure were taken by the appellant in the Courts below, these were not maintained before their Lordships.' See Anandalwan v. The Judges of the High Court of Judicature at Madras (1930) 58 M.L.J. 635 (P.C.).

38. We accordingly overruled the objection.

39. It was also argued that though Mr. Justice Beasley (as he then was) in his order, dated 7th May, 1926, resolved 'to make a report to the High Court in its disciplinary jurisdiction, and asked that an enquiry may be made to be directed after an explanation has been sought for from the advocate in question into the truth of these allegations because I think that such a charge as this cannot be left where it is -,' yet no explanation was called - for from the advocate, and that consequently the whole proceedings should be declared illegal. In this connection the following passage from the report of the Bar Council Tribunal may be quoted : -

This reference arises out of C.S. Nos. 8, 9 and 10 of 1926 disposed of by the Honourable Mr. Justice Beasley, as he then was, on 7th May, 1926. The papers, after some delay, with the judgment in the case, were forwarded by His Lordship Mr. Justice Beasley to the Honourable the Chief Justice for such action as he might think proper to take, on 15th March, 1927. The delay in taking such action by His Lordship was due to the fact that he at first took the view that the conduct of the advocate complained of was not in the capacity of an advocate but as a litigant; and His Lordship decided that it was a matter to be dealt with purely criminally. Later on, however, His Lordship changed his mind on a representation made on Behalf of the advocate that it could be dealt with by the High Court on its disciplinary side also.

40. The advocate and his legal advisers had plenty of opportunity all along in this matter to put in any explanation-if thought fit -and it was at the special request of the advocate that the matter was dealt with by the High Court on its disciplinary jurisdiction instead of the matter being dealt with by the Criminal Court. The advocate appeared before the Tribunal of the Bar Council and filed a written statement on 1st November, 1929. The allegations contained in that written statement were duly inquired into by the Tribunal. In the circumstances, we do not think that there is any force in this contention either.

41. Another interesting question of great importance, has been discussed in the judgment of Mr. Justice Reilly (the question itself was not fully argued in Court in this case)-about the propriety of a criminal prosecution preceding an inquiry under the Bar Councils Act in cases where the facts would suggest the commission of a very serious criminal offence punishable under the Indian Penal Code. I do not propose in the circumstances to discuss that question at present, because Mr. Justice Beasley, who tried the civil suits, though at first inclined to send the matter to the Criminal Court, resolved finally not to do so in the present case, being influenced by the request made on behalf of the advocate that the inquiry should be under the Bar Councils Act. Having regard to the provisions of Section 195 of the Code of Criminal Procedure, and having regard to the special circumstances of this case, it seems to me that it is not desirable or proper to drop or adjourn the present proceedings, and that we should in the rather peculiar circumstances dispose of the matter before us on the merits.

42. On the merits, the question is whether the charges against the respondent have been proved. The majority of the Bar Council Tribunal 'felt the greatest difficulty in coming to a conclusion on the questions involved in this case.' They further observed as follows;-'There is no doubt this initial suspicion attaches to this (respondent's) story....' 'This suspicion receives further strength from the somewhat doubtful account of Venkatachari's as to how he found the necessary funds for making these payments.' Later on-'perhaps it may be difficult to accept Venkatachari's story in its entirety as to the source from which he found the money for making the payments.' As regards the Postal Certificates, Exhibits L and L-l, the remark 'their genuineness is not free from suspicion. Their appearance is no doubt against them. The alterations are patent on their face....'

43. The majority expressly state that they 'felt the greatest difficulty in coming to a conclusion on the questions involved in this case.'

44. The High Court would naturally be inclined to attach great weight to the opinion of the Tribunal of the Bar Council in cases inquired into by that Tribunal, more especially when questions of appreciation of oral evidence of witnesses who were examined by the Tribunal arise. But in the present case, while agreeing with the Tribunal that no 'credence could be attached to the complainant's oral evidence unless the same be corroborated' (as a mere reading of the complainant's deposition would show) I think that the circumstantial evidence in the case against the respondent is too strong to be got over. [His Lordship reviewed the evidence, held that the charges against the respondent were proved and concluded : ]

45. When these serious charges are held to be proved, I think we are bound to remove the respondent from practice and to direct the removal of his name from the list of advocates. I also agree in the order as to costs proposed by my learned brother, Waller, J.

46. By Court.-The order of the Court is that the respondent be removed from practice and that his name be struck off the roll of advocates and that he do pay the costs of the proceedings before the Tribunal and here. It is contended by him that his case should have been disposed of before the Bar Councils Act came into force and that, as there was no specific provision for the payment of costs before that Act came into force, we should not direct him to pay the costs. We are unable to agree to this proposition. The enquiry did take place under the Act and we are not prepared to concede that there was no jurisdiction to direct the payment of costs before it was passed. We fix a fee of Rs. 750 for Mr. Muthukrishna Aiyar's appearance before the Tribunal and here.


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