1. By this Rule under Section 12 of the Legal Practitioners Act, Babu G. B. Sircar, Pleader, has been directed to show cause why he should not be suspended or dismissed on the ground that he has been convicted of two offences of breach of trust and abetment of the same implying a defect of character unfitting him to be a Pleader.
2. He does not dispute the accuracy of the recitals of the judgments of the Chief Presidency Magistrate in the cases in which he was convicted.
3. From these we find that Babu A.C. Chundra his co-accused in one of these cases was previously prosecuted for embezzlement and bad been declared an insolvent and prohibited by the Court from withdrawing money on behalf of clients from the Court. Knowing all this Babu G. B. Sircar withdrew in each of these cases a large sum on account of a client of Babu A. C Chundra by virtue of a power-of-attorney in which his name was entered unknown to the client. These sums were not paid to the clients and hence his conviction in these two cases.
4. Further it appears that when asked for the money he told various untruths to explain the delay in payment.
5. In his application to be allowed to resume practice in the Small Cause Court he urged; (i) that he always acted bona fide under the direction of his senior (i.e., his co-accused in one case, Babu A.C. Chundra) little knowing that he would be put to such trouble, end now repents his extreme indiscretion; (ii) that he has paid up the amount of the defalcations; (iii) that he has already suffered considerably through his prosecution and conviction
6. These pleas indicate that he scarcely seems to appreciate the extent of moral delinquency indicated by his conduct. Such conduct is not compatible, as he seems to imagine, with bona fides and is not merely a matter of indiscretion. That he should have thought such pleas justified in the circumstances seems in itself an indication that his present character unfits him to be a member of an honourable profession and that he is not a man to whom the affairs of the client could be safely entrusted. His learned Advocate very wisely does not now seek to justify his conduct though he still seems anxious to put most of the blame of his co-accused.
7. He has it is true since he was convicted paid up the amount of the defalcations and, putting the most favourable interpretation on this, some credit must be given to him for restoration of the amounts embezzled. But the fact that he did not act in a straightforward manner after the defalcations occurred is very much against him. An order of a dismissal seems almost to be demanded in the interest of the profession and of the litigant public, so much be that it is with some hesitation that we refrain from ordering that his name be struck off the roll of Pleaders and adopt the alternative course suggested in the Rule. 'Both the Chief Judge of the Small Cause Court and the Chief Presidency Magistrate regard as a mitigating circumstance, the fact that he was apparently led astray by Babu A. C. Chundra, and in this view of the case we are disposed to treat him leniently in the hope that when he resumes practice he will have been so impressed with the heinous-ness of such conduct that nothing of the kind will recur. We accordingly order that Babu G.B. Sircar be suspended from practice as a Pleader for one year from this date.
8. This Rule was issued by the full Court by virtue of the powers vested on the High Court of Section 12 of the Legal Practitioners Act (XVIII of 1879) by which Girija Bhusan Sircar, a Pleader practising in the Calcutta Small Cause Court, was called upon to show cause why he should not be suspended or dismissed on the ground that the offences of which he was convicted imply a defect of character which unfits him to be a Pleader.
9. It appears that the Pleader was charged with aiding and abetting another Pleader Amar Chandra Chundrain committing breach of trust of a sum of Rs. 1,002 withdrawn on the 14th November, 1925, by the paid Chandra from the Court, the sum being due to one Bholaram Kundulal. He was convicted under Section 406-109 of the Indian Penal Code by the Chief Presidency Magistrate and was sentenced to undergo rigorous imprisonment for six weeks. He was also charged under Section 409, Indian Penal Code, which criminal breach of trust for misappropriation of a sum of Rs. 1,350. drawn on behalf of his client one Sudarshan Chandra Mallik and he was sentenced to another six weeks' imprisonment on his charge. The Pleader moved the High Court and Mr. Justice C.C. Ghose and Mr. Justice Gregory reduced the sentences observing in their judgment that he has tried to make amends after his conviction.
10. Mr. H.D. Bose has appeared on behalf, of the Pleader and has argued that the money misappropriated had been paid up and that as the Pleader was a junior Pleader of only six years' standing and as regards the first offence the Presidency Magistrate; observed in his judgment that he was to some extent the victim of the co-accused Chander a merely nominal punishment should be given.
11. When a Pleader does an act which involves dishonestly it is for the interest of the suitors that the Court should interpose; and prevent a man guilty of such misconduct from acting as a Pleader of the Court. In this case the Pleader has been proceeded against criminally, and has been convicted of breach of trust and abetment of the same and upon those convictions, being brought to our notice it is the bound-en duty of the Court to act. It is not permissible to us to go behind the conviction nor has learned Counsel for the Pleader asked us to do so. In our opinion the convictions followed by the sentences were sufficient without further enquiry to justify the High Court in taking proceedings under Section 12 of the Act for it is now firmly established that the Pleader cannot be allowed to have indirect appeals against the judgment of the Chief Presidency Magistrate confirmed by the High Court, see In Re: Rajendro Nath Mukerji 22 A. 49 : 26 I.A. 242 : 3 C.W.N. 736 : 1 Bom.L.R. 708 : 7 Sar.P.C.J. 556 (P.C.). Where a Pleader has been convicted of criminal offences for misconduct committed strictly in his professional character, that prima facie at all events renders him unfit to be a member of the honourable profession. I do not, however, mean to say that wherever a Pleader has been convicted of a criminal offence the Court is bound to strike him off the roll. The use of the word 'may' in Section 12 of the words 'the High Court' shows that the discretion of the Court in each particular case is absolute. In this connection the following observations of Lord Esher, Master of the Rolls are instructive and may be usefully referred to: 'Where a man has been convicted of a criminal offence that, prima facie at all events does make him a person unfit to be a member of the honourable profession. That must not be carried to the length of saying that wherever a Solicitor has been convicted of a criminal offence the Court is bound to strike him off the roll. That was argued on behalf of the Incorporated Law Society in the case of In Re: Solicitor, Ex parte Incorporated Law Society (1889) 61 L.T. 842. It was there contended that where a Solicitor had been convicted of a crime it followed, as a matter of course, that he must be struck off; but Baron Pollock and Manisty, JJ., held that although his being convicted of a crime prima facie made him liable to be struck off the roll, the Court had a discretion and must inquire into what kind of a crime it is of which he has been convicted, and the Court may punish him to a less extent than if he had not been punished in the criminal proceeding. As to striking off the roll, I have no doubt that the Court might in some cases say, 'under these circumstances we shall do no more than admonish him;' or the Court might say 'we shall do no more than admonish him and make him pay the costs of the application;' or the Court might suspend him or the Court bright strike him off the roll. The discretion of the Court in each particular case is absolute. I think the law as to the power of the Court is quite clear.' See In Re: Wear, Ex parte Incorporated Law Society (1893) 2 Q.B. 439 at p. 445 : 62 L.J.Q.B. 596 : 69 L.T. 522 : 58 J.P. 6.
12. Bearing these observations in mind let us consider what are the circumstances of mitigation in this case. There is the fact that he has paid the sums withdrawn by him. On the other hand it is to be noticed that the repayment was after the discovery of the fraud. If he had spontaneously come forward and acknowledged the truth and of his own accord had made good the loss his clients had sustained through the embezzlement in question, I think that would have entitled him to much more favourable consideration than the mere fact of his payment on the discovery of the fraud. He paid the money more for the purpose of protecting himself from the consequences of his misconduct rather than from any contrition on his part and desire to make good the mischief he had done. But still taking into consideration the facts that he had paid the money, that he was to some extent the victim of circumstances in that that he associated himself with his senior Pleader whose conduct was known not to be above board, that he has conducted himself well and had done nothing wrong since his last offence, that he through his Counsel has expressed his repentance and has given us the assurance that he would lead an honourable life henceforth, we think we are not called upon to go to the extent of striking him off the roll; but we cannot pass the case over without marking our sense of the misconduct of the Pleader in the two instances of misappropriation which are found to have taken place. The least that we can do is to say that, he must be suspended from practising as a Pleader for the period of one year from the date
13. For these reasons I agree with my learned brother in the order which he proposes to make.