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Emperor Vs. Babu Bhubandeswar Nag - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in77Ind.Cas.181
AppellantEmperor
RespondentBabu Bhubandeswar Nag
Excerpt:
legal practitioners act (x viii of 1879), section 13 - pleader paying client's money to his relation--neglect of duty--grossly improper conduct. - .....his certificate.3. the material facts which it is necessary to mention are shortly as follows: one niljan bibi in august 1918 was appointed by the court guardian of her minor sons and daughters and, in respect of the minors' property she was directed to submit accounts. after much delay she submitted accounts and upon examination it appealed that she had not accounted for a sum of rs. 269 which it was alleged had been withdrawn from the court on behalf of niljan bibi in her capacity as guardian of the minor children. she was called upon to explain why that sum had not appeared in the accounts. she alleged that one ketabdi khan had stood surety for her with respect to the guardianship and she suspected that it was he, who had with drawn the sum from the co article she further alleged that.....
Judgment:

Lancelot Sanderson, C.J.

1. This is a report by the learned District Judge of Dacca with regard to a Pleader of that Court.

2. The learned District Judge arrived at the conclusion that the Pleader had been guilty of grossly improper conduct in the discharge of his professional duty and, accordingly, he made a recommendation that the Pleader should be suspended from practice. He made a further cider that pending the orders of the High Court on his report the Pleader should be suspended from practice and he should deliver up his certificate.

3. The material facts which it is necessary to mention are shortly as follows: One Niljan Bibi in August 1918 was appointed by the Court guardian of her minor sons and daughters and, in respect of the minors' property she was directed to submit accounts. After much delay she submitted accounts and upon examination it appealed that she had not accounted for a sum of Rs. 269 which it was alleged had been withdrawn from the Court on behalf of Niljan Bibi in her capacity as guardian of the minor children. She was called upon to explain why that sum had not appeared in the accounts. She alleged that one Ketabdi Khan had stood surety for her with respect to the guardianship and she suspected that it was he, who had with drawn the sum from the Co Article She further alleged that she was not aware that it ha d been withdrawn until she was called upon to account, and that if it had been withdrawn it had been withdrawn without her knowledge or consent. Thereupon at her instance Ketabdi Khan was called upon to show why he should not be proceeded against for cheating or criminal breach of trust. Ketabdi Khan stated that apparently the money had been withdrawn by the Pleader in question, that it had been withdrawn without the authority of Ketabdi Khan or of the guardian Niljan Bibi. Thereupon, the learned Judge made an enquiry; and, the Pleader asserted that he had received authority from Niljan Bibi through Ketabdi Khan and that after the withdrawal of the money which he admittedj he had paid the sum of Rs. 230 to Ketabdi Khan on the 28th of November 1919 and that he had obtained a receipt for the same from Ketabdi Khan on behalf of the guardian and that he had paid the balance of Rs. 39 at a subsequent date, some eight or ten days afterwards.

4. The learned Judge after this enquiry came to the conclusion that whatever might be the position with regard to the payment of the money, the Pleader had no authority to make the application for the withdrawal of the money or to pay the money to Ketabdi Khan and he instituted proceedings under the legal Practitioners' Act and called upon the Pleader to show cause why he should not be dismissed or suspended. The Pleader filed an answer to those proceedings and stated that he made the application for withdrawal of the money under instructions of Ketabdi Khan who was the brother of Nilian Bibi's late husband arid surety for the guardian, Niljan Bibi, and that he made over the money to Ketabdi Khan on the verbal authority of Niljan Bibi given on a previous occasion, and that Ketabdi Khan had admitted his signature on the receipt granted by him for Rs. 230 out of Rs. 269. He then referred to the fact that he had been given time for paying the money but owing to the hardness and difficulty of the times he was unable to collect money and comply with the order and he prayed for another opportunity to collect money and refund the same. The learned Judge thereupon fixed the 20th of July as the date for the hearing of the proceedings; and, on that occasion Niljan Bibi and Ketabdi Khan were examined, and we have their depositions before us. The Pleader did not appear, and he has not paid the money which he had practically admitted was due from him. The learned Vakil who appeared for the Pleader today stated that the reason why he had not appeared Was that he made a mistake as to the date. When the learned Vakil was asked why the Pleader did not apply to the learned Judge for an opportunity of being further heard, the answer was that as the final order had been made he did not think that he should make an application to the learned Judge but that when the report came before the High Court he would put in an affidavit stating the facts on which he would rely. He has not put in such an affidavit and I am not prepared to accept the explanation which' the Pleader has given for his failure to appear before the learned Judge on the 20th of July. It is an excuse which has no substance whatever.

5. The findings of the learned Judge are as follows:

In view of the contradiction between Ketabdi Khan's statement in these proceedings and the statement he made at the enquiry previously held by the Court, it must be admitted that the defendant's allegation that he paid to Ketabdi Klian and obtained from him a receipt for money and subsequently paid Jhim the balance of Rs. 39 has not been 'disproved.' He then proceeded, to discuss further the question of the receipt, and then arrived at the following finding: 'This 'much it clear,; namely, that the defendant had no authority to withdraw the money from the Court or to pay it to Ketabdi Khan and he not only deceived the Court by representing that he had authority to withdraw the money but if he paid the money to Ketabdi Khan he committed a gross breach of the duty imposed on him as a Pleader by paying the money to a person who was not entitled or authorised to receive it, and if he did not pay it to Ketabdi Khan he misappropriated the money. He has virtually admitted that he is liable to make good the money but though ample time has been given Juim to refund it, he has failed to do so.' Pie then found that the Pleader was guilty of grossly improper conduct in the discharge of his professional duty.

6. Having regard to these findings of the learned Judge, in my opinion, we must approach this case upon the basis that the Pleader paid the Rs. 269 to Ketabdi Khan and the question remains, whether assuming that to be a fact, there is anything in the conduct of the Pleader which would amount to grossly improper conduct in the discharge of his professional 'duty? There is no doubt in my mind that the Pleader ought to have satisfied himself before he made the application to the Court for the withdrawal of the money that Ketabdi Khan was acting with the authority of the guardian Niljan Bibi. He took no steps to satisfy himself that the application which he was about to make was really authorised by Niljan Bibi, and in that respect he was certainly wanting in the proper exercise of his duty not only towards the Court but also towards Niljan Bibi on whose behalf he was purporting to act.

7. Having obtained the money from the Court, in my judgment, the Pleader certainly ought to have satisfied himself that Ketabdi Khan had the authorily of Niljan Bibi to receive the money. But he took no steps to satisfy himself upon that point, as it wife clearly his duty to do. He must have Known that he was dealing with a Sum of money which having regard to the position of Niljan Bibi and her family, was a considerable sum of money, that it was money which she ought to have received on behalf of her minor children, and, certainly, it was his duty to take steps to satisfy himself that that money reached the hands of Niljan Bibi.

8. In both these respects, in my judgment, the Pleader neglected the duty which he owed not only to the Court but also the guardian Niljan Bibi.

9. But that is not conclusive of the question which I have to decide. The question is whether I am satisfied that he was guilty of grossly improper conduct in the discharge of his professional duty. On a previous occasion he had paid a sum of Rs. 15 to Ketabdi Khan on behalf of Niljan Bibi and taken a receipt for it from him when Niljan Bibi was not piesent: and, on another occasion he had paid Rs. 35 to Ketabdi Khan on behalf of Niljan Bibi in the presence of Niljan Bibi and he obtained a receipt for that from him. If we assume, as I have said we must assume, for the purpose of this judgment that the Pleader paid this sum of 'Rs. 269 to Ketabdi Khan, it must have been, in my opinion, upon the understanding that he, Ketabdi Khan, was authorised to receive it on behalf of Niljan Bibi. Otherwise why should he pay the money to Ketabdi Khan? I am now proceeding upon the assumption that he paid the whole of the money to Ketabdi Khan. It seems to me that if we accept that fact, the Pleader must have acted upon the assumption that Ketabdi Khan was authorised to receive the money on behalf of Niljan Bibi, and, in those, circumstances, though, as I have already said he ousrht to have taken proper steps to satisfy himself of Kfetabdi Khan's authority to receive the money, I am not prepared to hold that he was guilty of grossly improper conduct in the discharge of his professional duty within the meaning of Section 13 of the Legal Practitioners Act.

10. I have only to add that the circumstances of this case were so suspicious that they amply justified the learned Judge in c taking proceedings against the Pleader, in reporting the matter to this Court and in suspending the Pleader from practice pending the orders of this Court.

11. We make no further order upon the report except that the order of suspension will cease from today.

Richardson J.

12. I agree.


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