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In Re: N.K. Sen, Advocate - Court Judgment

LegalCrystal Citation
CourtKolkata High Court
Decided On
Case NumberCase No. 1 of 1951
Reported inAIR1952Cal551
ActsIndian Bar Councils Act, 1926 - Section 10(1)
AppellantIn Re: N.K. Sen, Advocate
Appellant AdvocateSudhansu Sekhar Mukherjee, Adv.;Provat Kumar Sen Gupta, Adv.
Respondent AdvocateK.K. Basu, Adv. for ; S.M. Basu, Adv. General
- .....however, could be arrived at inasmuch as in addition to the actual amounts collected on their behalf the clients demanded a further amount by way of interest and costs which the advocate was unable to pay. in those circumstances, the negotiations for a settlement failed and the criminal proceeding ended in a conviction in the trial court.7. it appears that after the negotiations for a settlement had failed, the advocate deposited the entire amount with one mr. a. c. mitra, a solicitor, and mr. mitra paid out the money to the clients on the date on which the judgment of this court was delivered in the appeal, as i have already stated.8. the conduct of the advocate has been dealt with both by this court when dealing with the appeal and by the tribunal of the bar council in the enquiry.....

Chakravartti, J.

1. This is a proceeding under Section 10 of the Indian Bar Councils Act, 1926 against a certain Advocate.

2. The Advocate concerned is one Mr. N. K. Sen, who was enrolled on January 2, 1948 and ordinarily practises in the Court of Small Causes On September 30, 1950, he was convicted by the Presidency Magistrate, Tenth Court, Calcutta under Section 409 of the Indian Penal Code for criminal breach of trust as an agent in respect of a sum of Rs. 7,171-3-6 pies, which he had collected on behalf of some clients. The sentence passed upon him was rigorous imprisonment for one year.

3. On appeal, this Court, by a judgment, dated May 25, 1951, upheld the conviction but reduced the sentence to a fine of Rs. 50/-. It appears that on the date of the judgment of this Court the Advocate paid up the whole amount to the clients concerned.

4. After the conviction had taken place, the trying Magistrate forwarded to this Court, as required by a circular letter, two copies of his judgment for such action as this Court might think fit to take. The matter was allowed to stand over till the decision of the appeal, but after the appeal had been decided and the conviction upheld, it was referred by a resolution of the Full Court, dated June 25, 1951, to the Bar Council for an enquiry under Section 10(2) of the Indian Bar Councils Act, 1926. In due course, a Tribunal of the Bar Council held an enquiry and recorded its finding in a report, dated August 27, 1951. That report has been forwarded to this Court under the provisions of Section 12(2) of the Indian Bar Councils Act, 1926, and the matter now comes before us for final decision under the provisions of Sub-section (4) and (5).

5. The facts are no longer in dispute. It appears that there is a house situated at No. 55, Canning Street, Calcutta, which is owned as regards a half-share by the Trust Estate of the late Mr. R. D. Mehta and with regard to the other half-share, by an individual named Hafiz Shamshed Ahmed. The house is occupied by many tenants who do not pay their rents directly to the landlords but deposit the same with the Rent Controller. On July 7, 1949, the manager of the Trust Estate engaged the Advocate concerned to collect his share of the rent from the Rent Controller and placed him in possession of 74 Challans. Subsequently on July 22, 1949, 58 other challans were placed in his hands on behalf of the owner of the other half share of the house; namely, Haflz Shamshed Ahmed. It appears that in regard to both the half-shares it. was Mr. Davar, the manager of the Trust Estate, who used to deal with the Advocate.

The Advocate, it appears further, withdrew 'certain amounts from time to time & informed his clients of such withdrawals, but the latter preferred to leave the money with him till the collection was completed, presumably for the reason that it would be convenient to them to receive the entire amount in one sum. By the middle of September, 1949, the collection appears to have been completed and thereafter the Advocate sent two bills to the two owners in respect of the fees chargeable by him and also informed them of the amounts which he had collected on their behalf. There is no dispute that the amounts so reported were the correct amounts. In reply to his letters he was requested to deduct the amount of his fees from the amounts he had collected and issue cheques for the balance. In pursuance of those instructions the Advocate issued two cheques on September 27, 1949,-one for a sum of Rs. 4513-11-9 pies in respect of the share of the Trust Estate and another for a sum of Rs. 2657-7-9 pies in respect of the share of Haflz Shamshed Ahmed. It appears from the evidence, which the Tribunal of the Bar Council has accepted, that at the time he issued those cheques, , the Advocate informed his clients that he had not sufficient funds in the Bank to his credit and that the cheques should be presented, a few days later. The cheques, when so presented, were dishonoured and it appears that thereafter the Advocate wrote two letters to one Subodh Babu who was an officer of the Trust Estate,-one on October 13, 1949 and another on October 28, following,-in each of which, he made a request for the presentation of the cheques on some Subsequent date. In the first letter he stated that the Bank had not been put in funds on account of 'some misunderstanding' and in the second letter he stated that the default had been caused by 'some unforseen and unfortunate circumstances.' The last letter which appears on the record is a letter, dated November 9, 1949, which was addressed directly to the Trust Estate and by that letter it was requested that the cheques might be presented on November 15. Even on November 15 the cheques were not honoured and thereafter the criminal prosecution was launched on August 18, with the result I have already stated.

6. No particular defence appears to have been put forward in the criminal proceeding except that the Advocate had had no dishonest intention. Before the Tribunal' of the Bar Council, however, a more positive case was for the first time made. That case is that after he had finished the collection of the amounts he was approached by a brother in law of his who informed him that the elder brother of that brother in law, namely, another brother-of the Advocate's wife, who was the sole earning member of his. family was lying seriously ill and the family was finding it extremely difficult to defray the expenses of his treatment, as also to meet the household expenses. It was also represented to him that certain properties which his father in law's family owned in Pakistan were in danger of being sold away for non-payment of revenue and for all these purposes a loan of about Rs. 7000/- was urgently required. The Advocate had no money of his own, but he agreed to accommodate the brother in law out of the funds he had in his hands on behalf of the owners of No. 55, Canning Street, and he granted a loan to his brother in law on the distinct understanding that the said money would be returned within about a week. The brother in law, however, failed to repay the amount within a week and indeed was not able to re-pay till the last week of April. When at last he did re-pay, the Advocate immediately made an offer to his clients to take their money and the criminal proceeding which was then pending was adjourned to a certain date in order to enable the parties to come to a settlement. No settlement, however, could be arrived at inasmuch as in addition to the actual amounts collected on their behalf the clients demanded a further amount by way of interest and costs which the Advocate was unable to pay. In those circumstances, the negotiations for a settlement failed and the criminal proceeding ended in a conviction in the trial Court.

7. It appears that after the negotiations for a settlement had failed, the Advocate deposited the entire amount with one Mr. A. C. Mitra, a Solicitor, and Mr. Mitra paid out the money to the clients on the date on which the judgment of this Court was delivered in the appeal, as I have already stated.

8. The conduct of the Advocate has been dealt with both by this Court when dealing with the appeal and by the Tribunal of the Bar Council in the enquiry under Section 10(2). The finding of the appellate' Court had better be set out in its own words. After referring to the mitigating circumstances, their Lordships proceeded to observe as follows:

'While that cannot save him from the position in law that his act amounted to an offence, we are of opinion that the accused having once misappropriated the money, was always anxious to repair the mischief done as early as possible and to pay up the money to his client. It seems very probable that if the prosecution had not been launched as early as in November 1949, the money might have been paid up by the appellant without much delay. We are convinced that the act of the accused was due to a temporary aberration of mind and not due to any ingrained dishonesty.'

9. More relevant is the finding of the Tribunal of the Bar Council which is expressed in the following words:

' 'The' temporary aberration' as found by their Lordships of this Court, was due to the advocate's allowing his private feeling for helping his near relations in distress to overcome the sense of his strict duty to his client. It appears further that thereafter this conduct on his part was to some extent condoned by his client by his agreeing to give time to pay. While these are mitigating circumstances, there can be no doubt that the conversion of the client's money by a lawyer to his own use, even temporarily, is not strictly in accordance with the correct conduct of an Advocate and such an improper use of the money, even temporarily, is undoubtedly a professional misconduct and we find accordingly.'

10. Before us the Advocate concerned has been represented by Mr. Mukherjee. The Advocate-General has appeared by Mr. Basu and the Bar Council has been represented by Mr. Sen Gupta. The Bar Council has submitted to us that it will be content if a lenient view of the Advocate's conduct is taken. On behalf' of the Advocate-General, Mr. Basu contended' that the finding recorded by the Tribunal of the Bar Council was a correct finding and he left the matter of the action to be taken entirely to the Court. On behalf of the Advocate, Mr. Mukherjee referred to the findings of the appellate Court and the Tribunal and submitted that, in all the circumstances, this was a case which did not call for any further action.

11. In our opinion, it is not possible to accede to Mr. Mukherjee's prayer. The finding in substance is that the Advocate had no intention to misappropriate the money at any time and did nothing towards misappropriation, either by way of concealing the receipt of the amount, or by way of fraudulent conversion thereof, but still he, being an advocate for certain parties and having withdrawn some money on their behalf, applied it to his own use without their permission, though always acknowledging his liability and asking for time to pay up the amount. While such conduct does not establish criminal intention, or moral turpitude in the ordinary sense, it still constitutes a lapse from that standard of absolute integrity to which the professional conduct of an Advocate must always conform and from which no inducement, or pressure of circumstances, must ever be allowed to deflect him. In relation to his clients, an Advocate bears the burden of heavy trust reposed in him on the faith of his being a member of an honourable profession. It is not enough for him not to abuse that trust ultimately, but he is required, by all the traditions of the profession which he has inherited, not to abuse it at any time, or to exploit it even temporarily for his personal advantage, for, by so doing he proves himself to be unfit to be depended on by his clients without reserve and to be incapable of acting in conformity with the standards which the profession and the public expect of him. An Advocate who takes liberties with moneys which he holds in his hands on behalf of his clients for whatever reason he may do so, fails in keeping to the standard of conduct which he is bound to observe.

12. An Advocate practising the law is under, a triple obligation,-an obligation to his clients to be faithful to them unto the last, an obligation to the profession not to besmirch its name, or injure its credit by anything done by him, and an obligation to the Court to be and to remain a dependable part of the machinery through which justice is administered. The clients are entitled to be protected from an Advocate who is likely to betray them; the profession cannot afford to have a member who fails in keeping to the required standard of conduct; and the Court cannot overlook breaches of professional faith. Where liberty has been taken by an Advocate with money belonging to his clients, absence of an intention to misappropriate may be a good answer to a criminal charge, but it is no answer to a charge of professional misconduct. It is, therefore, not possible to overlook the misconduct of the Advocate in this case altogether and accede to the extreme prayer of Mr. Mukherjee.

13. But it is only right to recognise that there are degrees of misconduct. While there can be no compromise with breaches of professional faith and while such breaches, whenever they occur, must always be punished, the punishment must in justice be adjusted to the needs of the case. In the present case, both the criminal Court and the Tribunal of the Bar Council have acquitted the Advocate of any criminal intention. The Tribunal has believed his story and has only held that when confronted by his divided duty towards his clients and his relatives in distress he failed to make the better choice and his lapse or misconduct was not worse than that he failed to realise what his primary duty was. It may be added that he appears to be a comparatively young man, having been enrolled, as I have already stated, on January 2, 1948, and in those circumstances we are prepared to lean in his favour as far as it is possible for us to do.

14. Section 10(1) of the Indian Bar Councils Act, 1926, provides that the High Court may reprimand, suspend or remove from practice any Advocate of the High Court whom it finds guilty of professional or other, misconduct. In our opinion, the ends of justice in this case will be met if we do no more than reprimand the Advocate.

15. The Advocate concerned is present in Court and has. under our direction, taken his stand at our Bar. We reprimand him in the view of the Court for the misconduct of which he has been guilty, but we send him back to his practice with the admonition that he must, in future, remember his responsibilities towards his clients, towards the profession and towards this Court better than he has done in the present instance.

16. We do not desire to make any order for costs under Section 12(5) of the Act. But let proper action be taken under Section (7) of the Section for making an adequate entry in the Roll of Advocates.

Chunder, J.

17. I agree.

P.B. Mukharji, J.

18. I agree.

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