1. This is a reference under Section 14, Legal Practitioners' Act (Act 18 of 1879) made by the District Judge of 24 Parganas in respect of Shri Bhupendra Nath Bose, a pleader ordinarily practising in the district court at Alipore and the courts subordinate thereto.
2. The material facts are briefly as follows One Mokshoda Sundari Dasi who is an old and illiterate widow appointed the pleader to act on her behalf in a number of Land Acquisition cases when-some of her lands were acquired by Government. It appears that a sum of Rs. 30140/3/5 pies was awarded to her as compensation. It has been found by the learned District Judge that out of that sum a total amount of Rs. 24083/3/- was withdrawn by the pleader in different instalments on behalf of Mokshada Dasi. The period of such withdrawal ranged between 2-9-50 and 30-3-51. It has also been found by the learned Judge that out of total sum of Rs. 24083-3-0 withdrawn by the pleader a sum of Rs. 14700/- plus Rs. 41/6/4 p. was paid by him to the petitioner on different dates. between 13-4-51 and 9-3-52 leaving a balance of 9341/12/8 p. in his hand. Allowing for fees, to which he can reasonably claim, entitled and certain other sums which he can reasonably claim, the learned District Judge has come to the conclusion that Rs. 8393/14/8 p. is the amount which the pleader is liable to pay to Mokshada Dasi.
3. Before the District Judge the defence of the pleader mainly was that he had repeatedly asked Mokshada Dasi to come to his house with her son-in-law and take payment of what was due to her on adjustment of accounts, that Mokshada Dasi had declined to do so, that the amount claimed by the lady was grossly inflated, and that she had not given credit for certain sums which had been paid to her. It was denied that the pleader had acted in any way which could be said to amount to professional misconduct.
4. Upon taking evidence, both oral and documentary the learned District Judge did not accept the explanation offered by the pleader. As mentioned already, he has found that a sum of Rs. 8393/14/8 p. is liable to be paid by the pleader. In his opinion the pleader has given one false pretext after another for avoiding or deffering payment. His final conclusion is that the pleader has misappropriated his client's money and that he was guilty of grossly improper conduct in the discharge of his professional duty. He has accordingly recommended that the name of the pleader be struck off the rolls,
5. The first objection that was taken before us on behalf of the pleader is that as the alleged misconduct by him was in connection with the withdrawal of money in Land Acquisition cases in respect of which the District Judge was not the presiding officer, he was not competent to institute proceedings under Section 14, Legal practitioners Act. In this connection reference was made to various cases amongst which mention may be made of the cases of 'In re, Radhacharan Chakravarti' 10 Cal WN 1059 (A); 'In the matter of A, a Mukhtar' AIR 1938 Pat 17 (PB) (B); U Them Nyun v. District Superintendent of Police, Maubin, AIR 1936 Rang 158 (C).
The pleader concerned, is however, a pleader ordinarily practising in the District Court at Ali-pore and the courts subordinate thereto and accordingly upon the authority of the Special Bench decision in the case of 'In re, Rabindra Chandra Chatterjea' 49 Cal 850 : (AIR 1922 Cal 484) (D) it is clear that the District Judge of 24 Parganas had jurisdiction to institute proceedings against the 'Pleader. As was pointed out by Sir Ashutosh Mukherjea in that cases,
'This section (viz. Section 14, Legal Practitioners' Act) plainly authorises a subordinate court to institute proceedings against a pleader or Muktear practising in that court. It is not restricted to cases where the alleged misconduct has been committed in the court wherein the proceedings re instituted'.
he principle laid down in the above case has been allowed in many cases and I do not see any rea-on why it should not govern the instant case as well. In this view the learned District Judge was competent to institute proceedings under Section 14 against the pleader and no valid objection can be taken on this score.
6. It has next been argued on behalf of the leader on the authority of a long line of cases e.g. In the matter of, Rajendra Kumar Putta, 30 Cal WN 186: (AIR 1926 Cal 502) (E); In the matter of, Satish Chandra Singha. : AIR1927Cal536 , King Emperor v. P. a Pleader : AIR1934Cal272 , Emperor v. Sachindra Nath, ILR (1938) 2 Cal 138 : (AIR 1938 Cal 783) (H) that as the pleader was charged with misconduct which renders him liable to criminal proceedings, proceedings under the Legal Practitioners Act should not have been taken against him and if thought necessary action should be taken against him by way of criminal prosecution first.
That is no doubt the ordinary rule, but as was pointed out by Sir Aushutosh Mukherjea in the case of 'In the matter of Chandi Charan Mitter A pleader' 24 Cal WN 755: (AIR 1920 Cal 565) (I) it is not an inflexible rule and 'where the misconduct attributed indicates unfitness to discharge professional duties, a criminal conviction may not always be a pre-requisite to the adoption of disciplinary measures'.
As was further pointed out by Sir Ashutosh Mukherjea in the above case the test to be applied in each case is whether the person concerned will be prejudiced by the adoption of summary procedure for the investigation of what is in reality a grave criminal charge. Moreover, the allegations In the present case relate to the conduct of the pleader towards his client in his professional capacity and as such, come within the mischief of the Legal Practitioners' Act.
Applying the test suggested in the above case to the facts of the present case, I have reached the conclusion that it cannot be said that the pleader has been prejudiced by the adoption of disciplinary measures by way of the Legal Practitioners Act. The allegations made against him, however grave they may be, are of a fairly, simple nature: in short they amount to no more than this that he collected certain sums on behalf of his client but he declined to pay them to the petitioner to whom they are due.
So far as the .amounts collected by the pleader are concerned, there is not much dispute between. the parties. The dispute is really regarding the amount paid by the pleader to his client and the bona fides or otherwise of the explanation given by him for non-payment of the sum which is alleged to be still due to the client. These are fairly simple issues and the pleader has had every opportunity to meet them in the present proceedings.
No question of prejudice can in the circumstances of the present case be said to arise nor does it appear to me that he can legitimately complain of any injustice caused to him. In para 2 of his objection petition he complained no doubt that he had been taken by surprise and that he was unable to follow how the petitioners had arrived at the figures given in her petition. A somewhat similar complaint about the lack of details in the petition filed by Mokshada before the learned District Judge was made in course of the argument before us on behalf of the pleader.
The petition concerned might well have contained more details but that circumstance does not seem to have caused any real prejudice to the pleader. He could understand well enough,-what the case against him was and the evidence adduced by him in answer to the allegations was pretty exhaustive. Moreover, the correspondence that had passed between the parties before the institution of the present proceedings could have left no reasonable doubt in his mind as to the nature of the allegations against him. In the circumstances, he cannot reasonably complain any prejudice or of any element of surprise.
7. I shall now pass on to the discussion of the details of evidence. So far as the total amount withdrawn by the pleader on behalf of his client is concerned, the finding of the District Judge is entirely in his (i.e. the pleader's) favour. According to pleader it was Rs. 24077/3/9p. while according to the learned Judge it was a slightly higher' figure viz. Rs. 24083/3/.
8. So far as the amounts paid by the pleader to his client on different dates are concerned there, is much greater controversy between the parties,. The learned Judge has found, upon evidence that the payment of a total sum of Rs. 13533/6/4 admits of no dispute. He has referred, however, to three disputed items of payment and' made his comments thereon. I have scrutinised the evidence regarding these items and I see no reason to dissent from the observations made by the learned Judge in regard to them. Making due allowance for certain circumstances, the learned Judge's final conclusion is that the pleader is liable to pay to his client a sum of Rs. 8393/14/8.
After the learned Judge had referred the case to this court for orders, an affidavit was filed here on 23-12-54 by the pleader stating inter alia that he had produced before the District Judge a receipt on the back of the counter part, of a certain cheque showing payment of an additional sum of Rs. 500/- to Mokshada but the learned Judge refused to take it into consideration. It was also stated in the affidavit that the pleader held another receipt dated 25-11-51 acknowledging receipt of Rs. 1000/-.
This is said to be duly thumb-impressed by Mokshada Sundari. It is said further that the pleader offered to produce this receipt but the learned Judge refused the offer. These two receipts have been produced in this court. Both of them contain thumb impressions which are alleged to be those of Mokshada Sundari. No convincing reason has been assigned, however, as to why they were not made part of the evidence in the lower court, nor was Mokshada Sundari or anybody else on her side confronted with them in the court of the learned Judge.
In the circumstances, a sufficiently strong case has not been made out for receiving them in evidence at this belated stage. Even if they are taken into account and the pleader is given credit for a further sum of Rs. 1500/- as represented by these receipts at best they reduce his total liability to that extent only leaving still a pretty big sum unaccounted for.
It may be mentioned inter alia that in his affidavit filed in this court the pleader has given himself credit of Rs. 3000/- as professional fees and travelling allowance. This in my opinion is a grossly inflated figure. The amount allowed by the learned Judge under these heads is not, in my opinion, unreasonable. There is no escape from the conclusion that a fairly substantial sum is still due from the pleader. It seems to be a fair inference from the tone of some of his letters that on his own admission his conduct in relation to his client was free from blame.
9. From a review of the evidence the conclusion is inevitable that the pleader owes a fairly big amount to his client, however, much he might have tried to belittle the same. It is no less clear from his letters as pointed out by the learned Judge that he has been giving one false pretext alter another for avoiding or deferring payment. It may be, as the learned Judge, has surmised that he has spent the amount and was not in a position to pay.
Even if it be a fact, as was stated by the pleader in course of the correspondence, that he had advanced the money to some of his clients and was unable to realise the same and as such unable to pay off Mokshada Sundari in full, he did so without authority from her or without her knowledge and he did so on his own peril, Un-athorised diversion of his client's money, especially when it is followed up by false excuses, deserves serious condemnation.
His client was an old illiterate widow who, it appears, did not have full faith in her son-in-law, while, on the contrary, the pleader himself enjoyed the full confident of his client whom he had been serving in a professional capacity for a good many years. The excuse that he was resorting to viz., that she did not come to his place to understand the accounts and accept payment for the money that might be due to her wears thin considered in the light of the circumstances, referred to by the learned Judge. Another circumstances which calls for some comment is that the pleader was apparently representing to the old lady that the first payment made to her on 13-4-51 was being made from his own pocket: this was palpably false as pointed put by the learned Judge.
Again the facts that the pleader represented to his client that some of the money had been defalcated in the Collectorate and that he had vainly approached Ministers and Deputy Ministers for which there is no basis in evidence -- place his conduct in a lurid light. It Is needless to refer to other instances of 'terminological in exactitudes' rather freely indulged in by the pleader in order to cover up his conduct.
I am satisfied that giving due weight to all that can be reasonably urged on behalf of the pleader, his conduct does amount to grossly improper conduct in the discharge of his professional duty. He appears to be a fairly senior lawyer and he could be under no illusion as to the probable consequence of his own conduct.
10. In the result, therefore we have reached the conclusion that for the safety of litigants and the fair name of the noble profession to which he belongs it is necessary that the pleader should be visited with appropriate penalty for his conduct. Taking all the circumstances into consideration, we consider- that it will meet the ends of Justice if he be suspended from practice for a period of 3 (three) years with effect from 15-4-55 and it is ordered accordingly.
11. The reference is accepted to the above extent.
12. Let the records be sent down as early as possible.
K.C. Das Gupta, J.
13. I agree.