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IN SUPREME COURT OF INDIA Page 1 of 7

Vs.

RESPONDENT:
MUSTAFA HAJI MOHAMED YUSUF AND OTHERS

DATE OF JUDGMENT07/04/1993

BENCH:
MOHAN, S. (J)
BENCH:
MOHAN, S. (J)
KULDIP SINGH (J)

CITATION:
1993 AIR 1535 1993 SCR (2)1006
1993 SCC (2) 562 JT 1993 (2) 652
1993 SCALE (2)429

ACT:
Advocacy--Significance of profession--Punishment whether to
be commensurate with the degree and gravity of misconduct.
Advocates Act, 1961-Section 38-Appeal-Misappropriation-Proof
of--Enhancement of punishment and direction of Supreme Court
to refund of amount pending with advocate--Legality of.

HEADNOTE:
The respondent was defendant in a suit. He engaged the
appellant as an Advocate. The suit was compromised on
14.6.77 ordering that out of the amount lying with the Court
receiver, plaintiff was to be paid a sum of Rs. 64,000 and
the balance to be paid to the defendant-respondent and
possession of suit-property to be handed over to the
respondent.
During the tendency of the suit the Court Receiver inducted
a tenant in a suit property. The tenant filed a suit
praying for an interim injunction restraining the court
receiver from handing over possession to the respondent.
Tenant’s suit was continued.
After the compromise decree was passed on 14.6.77, the
appellant withdrew a total amount of Rs. 50,379 from the
Court receiver. Out of the amount, appellant paid only Rs.
18,000 to the respondent. On 9.1.81 the respondent filed a
complaint against the appellant before the Bar Council of
India. On receiving a notice, the appellant submitted
reply.
The Disciplinary Committee of the Bar Council rejected
certain receipts produced to evidence payment to the
respondent and also the plea of the appellant that the
account books were lost. The Committee suspended the
appellant for a period of two years and further directed to
pay a sum of Rs. 500 to the respondent.
Before this Court the order of the Disciplinary Committee of
the Bar Council of India was challenged contending that the
Committee did not properly appreciate the evidence and that
it was incorrect to hold that the
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receipt dated 8.8.77 was a suspicious document merely
because the account books were not produced.
Dismissing the appeal, this Court,
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HELD : 1.01. Advocacy is not a craft but a calling-, a
profession wherein devotion to duty constitutes the hall
mark. Sincerity of performance and the earnestness of
endeavor are the two wings that will bare aloft the advocate
to the tower of success. Given these virtues other
qualifications will follow of their own account. This is
the reason why legal profession is regarded to be a noble
one. But it cannot be allowed to become a sorriest of
trades. Therefore. an exacting standard is what is expected
of an advocate. [1010 C-D, 1011-C]
1.02. The members of the noble profession must set an
example of conduct worthy of emulation. If any of them
falls from the high expectations, the punishment has to be
commensurate with the degree and gravity of the misconduct.
[1012-E]
Sharasawood on legal profession, Harry R. Blythe cited if?
21 Green Bag 224, referred to.
M. Veerabhadra Rao v. Tek Chand, [1984] Supp. SCC 571,
referred to.[1011-C]
2.01. The appellant had withdrawn the money from the Court
Receiver. None of the correspondence addressed to the
respondent mentioned about the receipt dated 8th of August,
1977. The plea taken by the appellant based on the receipt
is clearly false. The statement of the appellant that the
account books had been lost in transit cannot be believed.
Under these circumstances this is a clear case wherein the
misappropriation by the appellant has been fully
established. [1012-F]
2.02. The appellant has been withdrawing the money over 14
years and lit has illegally retained the amount. Out of a
sum of Rs. 50,379 which was admittedly withdrawn from the
court receiver only Rs. 18,000 was paid on different
occasions. Still a sum of Rs. 22,379 is due. [1012-H, 1013-
A]
2.03. In view of the established finding of misappropriation
the proper punishment will be the name of the Advocate must
be struck off the rolls. [1013-B]
1008
2.04. When Section 38 of the Advocates Act says, ’deems
fit", it must be construed as to meet the ends of justice.
The respondent should not be driven to a civil court for
recovery of this amount even when the appellant has been
found guilty. Therefore, it is directed that there shall be
a decree in favour of the respondent (complainant) for a sum
of Rs. 22,379 together with interest at 9% per annum from
the date of the complaint till the date of payment 11013 F-
G]

JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6120 of 1983.
From the Judgment and Order dated 25.4.1983 of the
Disciplinary Committee of the Bar Council of India in B.C.I.
Tr. Case No. 32 of 1982.
Bharat Sangal for the Appellant.
V.R. Reddy, Addl. Solicitor General, T. Ratnam and D.N.
Goburdhan for the Respondents.
The Judgment of the Court was delivered. by
MOHAN, J. This is a statutory appeal under Section 38 of the
Advocates Act of 1961.
The brief facts are as under:-
The respondent engaged the appellant as a counsel in suit
No. 510 of 1964, this was in April, 1976. The suit was
ultimately compromised on 14.6.77. It was ordered that out
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of the total amount lying with the court receiver, a sum of
Rs. 64,000 shall be paid over to the plaintiff; the balance
was to be paid to the respondent and possession of suit
property was to be handed over to the respondent by the
court receiver.
During the pendency of the suit the court receiver inducted
one Usman Ghani Haji Mohamed as a tenant. He filed CS No. 7
of 1978 praying for an interim injunction restraining the
court receiver from handing over possession to the
respondent. That suit was continued.
After the compromise decree was passed on 14.6.77 the
appellant who was the counsel for the respondent was
requested to withdraw the amount lying with the court
receiver and hand over the same to the
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respondent. For this purpose a, letter of authorisation to
enable the appellant to receive the amount was also issued,
Pursuant to the letter of authorisation and instructions, a
total amount of Rs. 50,379 was withdrawn by the appellant
from the court receiver. Out of this, he paid only Rs.
18,000 and the rest was not paid. Therefore, the respondent
preferred a. complaint before the Bar Council of India on
9.1.81. The appellant was issued a notice by the Bar Council
to which he submitted his reply. On consideration of his
reply and hearing the arguments, the Disciplinary Committee
of the Bar Council of India, was of the view that the burden
of proving the fact that the respondent had paid a sum of
Rs. 50,379 lay on the appellant. Certain receipts produced
to evidence payment to the respondent were not accepted.
The plea of the appellant that the account books had been
lost was held to be untrue. Ultimately the appellant was
suspended for a period of two years and further directed to
pay a sum of Rs. 500 to the complainant (the respondent
herein). It is against this order the present appeal has
been preferred.
Learned counsel for the appellant took us through the
impugned order and urged that the Committee had not properly
appreciated the evidence especially the receipts which were
produced by the appellant to evidence the payment. It is
incorrect to hold that the receipt dated 8.8.77 was a
suspicious document merely because the account books were
not produced, it would not follow that the payments made by
the appellant could be disbelieved.
We pointed out to the learned counsel for the appellant that
the order under appeal is unexceptional and there was no
case for interference. We felt that the order of suspension
of two years was not commensurate with the charges of
misappropriation. Therefore, we directed the issue notice
to the appellant which came to be accepted by the learned
counsel Mr. Bharat Sangal. Inspite of the fact that the
appellant has not chosen to appear, in order to make over
the payment of the amount voluntarily. Therefore, we are
left with no option then to decide the case ourselves on
merits.
The Disciplinary Committee of the Bar Council on a proper
appreciation of the evidence disbelieved the so-called
receipts evidencing the payment. It has come to the correct
conclusion that the receipt dated 8th of August, 1979 was
got up on a blank signed paper. Hence, the due
1010
execution of the receipt had not been proved by the
appellant. Besides, the statement of the appellant that the
account books had been lost in transit had been rightly
disbelieved. Under these circumstances this is a clear case
wherein the misappropriation by the appellant has been fully
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established. Once this conclusion is arrived at, the
question is what is the punishment to be imposed?
Advocacy is not a craft but a calling; a profession wherein
devotion to duty constitutes the hall mark. Sincerity of
performance and the earnestness of endeavor are the two
wings that will bare aloft the advocate to the tower of
success. Given these virtues other qualifications will
follow of their own account. This is the reason why legal
profession is regarded to be a noble one. But it cannot be
allowed to become a sorriest of trades. It will be useful
to quote what Sharaswood said of this profession:-
A lower, without the most sterling integrity,
may shine for a while with meteoric splendor;
but his light will soon go out in blackness of
darkness. It is not in every man’s power to
rise to eminence by distinguished abilities.
It is not in every man’s power, with fe
w
exceptions, to attain respectability,
competence, and usefulness. The temptations,
which beset a young man in the outset of his
professional life, especially if he is in
absolute dependence upon business for his
subsistence, are very great. The strictest
principles of integrity and honour are his
only safety. Let him begin by swerving from
truth or fairness, in small particulars, he
will find his character gone-whispered away,
before he knows it. Such a one may not indeed
be irrecoverably lost; but it will be years
before he will be able to regain a firm
foothold. There is no profession in which
moral character is so soon fixed as in that of
the law; there is none in which it is
subjected to severer scrutiny by the public.
It is well that it is so. The things we hold
dearest on earth, out fortunes, reputations,
domestic peace, the future of those dearest to
us, nay, our liberty and life itself, we
confide to the integrity of our legal
counselors and advocates. Their character
must be not only without a stain, but without
suspicion. From the very commencement of a
lawyer’s career, let him cultivate
1011
above all things, truth, simplicity and
candor. They are cardinal virtues of a
lawyer. Let him always seek to have a clear
understanding of his object: be sure it is
honest and right and then march directly to
it. The covert, indirect and insidious way of
doing anything, is always the wrong way. It
gradually hardens the moral faculties, renders
obtuse the perception of right and wrong in
human actions, weighs everything in the
balance of worldly policy, and ends most
generally, in the practical adoption of the
vile maxim, "that the end sanctifies the
means."
Therefore an exacting standard is what is
expected of an advocate.
This court has taken the view in M. Veerabhadra Rao v. Tek
Chand, [1984] Supp. SCC 571 as to how in such a case
professional misconduct has to be dealt with. In that case,
the advocate committed forgery by attesting false affidavits
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which was held to be a serious misconduct. This court
pointed out the duties of the members of the bar in the
following passage:-
"Legal profession is monopolistic in character
and this monopoly itself inheres certain high
traditions which its members are expected to
upkeep and uphold. Members of the profession
claimed that they are the leaders of thought
and society. In the words of Justice Krishna
Iyer in Bar Council of Maharashtra v. M.V
Dabholkar, [19751 2 SCC 702 the role of the
members of the Bar can be appreciated. He
said at page 718:
The bar is not a private guild, like that of
’barbers, butchers and candlestick-makers’
but, by bold contrast, a public institution
committed to public justice and pro bono
public service. The grant of a monopoly
licence to practice law is based on three
assumptions: (1) There is a socially useful
function for the lawyer to perform, (2) The
lawyer is a professional person who will
perform that function, and (3) His performance
a,, a professional person is regulated by
himself and more formally, by the profession
as a whole. The central function that the
legal profession must perform is nothing less
than the ad-
1012
ministration of justice (’The Practice of Law
is a Public Utility’-’The Lawyer, the Public
and Professional Responsibility’ by F. Raymond
Marks et al-Chicago American Bar Foundation,
1972, pp. 288-289). A glance at the functions
of the Bar Council, and it will be apparent
that a rainbow of public utility duties,
including legal aid to the poor, is cast on
these bodies in the national hope that the
members of this monopoly will serve society
and keep to canons of ethics befitting an
honorable order. If pathological cases of
member misbehavior occur, the reputation and
credibility of the Bar suffer a mayhem and
who, but the Bar Council, is more concerned
with and sensitive to this potential disrepute
the few black sheep bring about? The official
heads of the Bar, i.e. the Attorney General
and the Advocates-General too are distressed
if a lawyer ’stoops to conquer’ by resort to
soliciting, touting and other corrupt
practices.
If these are the high expectations of what is describes as a
noble profession, its members must set an example of conduct
worthy of emulation. If any of them falls from that high
expectation, the punishment has to be commensurate with the
degree and gravity of the misconduct".
Accordingly, the punishment was increased to one of
suspension for a period of five years, having regard to the
gravity of the misconduct and keeping in view the motto that
the punishment must be commensurate with the gravity of the
misconduct.
In the case on hand admittedly the complainant (respondent)
does not know English. It is equally admitted that the
appellant had withdrawn the money from the Court Receiver.
None of the correspondence addressed to the respondent
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mentioned about the receipt dated 8th of August, 1977. The
plea taken by the appellant based on the receipt is clearly
false.
The appellant has been withdrawing the money over 14 years
and he has illegally retained the amount. Out of a sum of
Rs. 50,379 which was admittedly withdrawn from the court
receiver only Rs. 18,000 was paid on different occasions.
The said amount was also spread over and paid on
1013
different occasions. On a direction of this court a sum of
Rs. 10,000 had been deposited by the appellant which has
been withdrawn by the respondent as per order dated 3rd
September, 1991. Still a sum of Rs. 22,379 is due.
In view of the established finding of misappropriation, we
think the proper punishment will be the name of the Advocate
must be struck off the rolls. We order accordingly. In
addition to this the question arises, whether we can direct
the refund of the sum of Rs. 22,379 which still is pending
for the appellant. Section 38 of the Advocates Act says as
follows.
"Appeal to the Supreme Court:- Any person
aggrieved by an order made by the disciplinary
committee of the Bar Council of India under
Section 36 or Section 37 [or the Attorney-
General of India or the Advocate-General of
the State concerned, as the case may be], may
within sixty days of the date on which the
order is communicated to him, prefer an appeal
to the Supreme Court and the Supreme Court may
pass such order [including an order varying
the punishment awarded by the disciplinary
committee of the Bar Council of India] thereon
as it deems fit:
[Provided that no order of the disciplinary
committee of the Bar Council of India shall be
varied by the Supreme Court so as to
Prejudicially affect the person aggrieved
without giving him a reasonable opportunity of
being heard]."
"when it says,’ deems fit, it must be construed as to meet
the ends of justice. We feel the respondent should not be
driven to a civil court for recovery of this amount even
when the appellant has been found guilty by his own peers
which we have also confirmed. Therefore, we direct that
there shall be a decree in favour of the respondent
(complainant) for a sum of Rs. 22,379 together with interest
at 9% per annum from the date of the complaint till the date
of payment.
The appeal is dismissed- in the above terms with costs of
the respondent which is quantified at Rs. 3000 (Rs. three
thousand only).
Before we part with the case we may usefully quote Harry R.
Blythe
1014
(cited in 21 Green Bag, 224):-
"Great God the hour has come when we must
clear The legal fields from poison and from
fear; We must remould our standards-build them
higher, And clear the air as though by
cleansing fire, Weed out the damning traitors
to the law, Restore her to her ancient place
of awe."
V.P.R. Appeal dismissed.
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