2013 (5) TMI 422 - HC - Companies Law

Removal of name from membership register by ICAI - Bigamy marriage - Appellant is a qualified Chartered Accountant who filled a divorce case against his wife concluding to a divorce decree confirmed by Madras High Court where complaint given by the appellant s estranged wife wherein bigamy was stated as a reason for preferring the said complaint against the appellant & ld XIII Metropolitan Magistrate, Chennai convicted the appellant and imposed sentence to undergo rigorous imprisonment for one year which was reduced to six months by High court and Supreme court modified to the sentence already suffered by the appellant in this case - appellant s name was removed from the Register by ICAI on the grounds of conviction for bigamy - whether allegation of bigamy marriage will come within the meaning of moral turpitude? Held that - As decided in Pawan Kumar v. State of Haryana 1996 (5) TMI 386 - SUPREME COURT considered in Allahabad Bank v. Deepak Kumar Bhola 1997 (3) TMI 569 - SUPREME COURT and Baleshwar Singh v. District Magistrate and Collector (1958 (5) TMI 41 - ALLAHABAD HIGH COURT) the expression moral turpitude is not defined anywhere. But it means anything done contrary to justice, honesty, modesty or good morals. It implies depravity and wickedness of character or disposition of the person charged with the particular conduct. Every false statement made by a person may not be moral turpitude, but it would be so if it discloses vileness or depravity in the doing of any private and social duty which a person owes to his fellow men or to the society in general. If therefore the individual charged with a certain conduct owes a duty, either to another individual or to the society in general, to act in a specific manner or not to so act and he still acts contrary to it and does so knowingly, his conduct must be held to be due to vileness and depravity. It will be contrary to accepted customary rule and duty between man and man. The appellant and his estranged wife are Hindus, governed under the provisions of the Hindu Marriage Act, 1955. Section 17 of the Act states that marriage between two Hindus is void if two conditions are satisfied, viz., (1) the marriage is solemnized after the commencement of the said Act, and (2) at the date of such marriage, either party had a husband or wife living and the provisions of Sections 494 and 495 shall apply accordingly. Thus, it is evident that if a Hindu marries with a person having a spouse living or he or she have a spouse living, marries any person, shall be liable for bigamy. Thus having regard to the fact that the appellant married another woman, while the first marriage was subsisting, and had acted contrary to the law and to his estranged wife , the offence of bigamy is coming within the meaning of moral turpitude . The conviction recorded against the appellant for bigamy stands even today though sentence was reduced to the period already undergone. Hence, the decision taken by the first respondent to remove the name of the appellant from the register maintained by the Chartered Accountants Council in its 284th meeting held on 13.2.2010, which was published in the official gazette dated 19.2.2010 communicated to the appellant on 16.4.2010, which was upheld by the learned single Judge is valid and no interference is required as the appellant has attracted disqualification by operation of law viz., Section 8 of the Chartered Accountants Act, 1949, due to his involvement in an offence involving moral turpitude.

Summary

Issues Involved:
1. Validity of reopening the case by the Institute of Chartered Accountants of India (ICAI).
2. Whether the conviction for bigamy constitutes moral turpitude under Section 8 of the Chartered Accountants Act, 1949.
3. Compliance with principles of natural justice.
4. Legality of the removal of the appellant's name from the register of Chartered Accountants.

Detailed Analysis:

1. Validity of Reopening the Case by ICAI:
The appellant argued that the ICAI had no jurisdiction to reopen the case after its decision on 29.1.2004, which found him not guilty of any professional or other misconduct. The ICAI reopened the matter on 5.7.2009, citing the appellant's conviction for bigamy as involving moral turpitude under Section 8 of the Chartered Accountants Act, 1949. The court found that the ICAI's initial decision did not consider the Supreme Court's order dated 14.11.2003, which confirmed the appellant's conviction. The ICAI was justified in reopening the case upon discovering this omission.

2. Whether the Conviction for Bigamy Constitutes Moral Turpitude:
The appellant contended that bigamy does not fall within the meaning of moral turpitude. The court referred to several judgments, including the Supreme Court's definition of moral turpitude as conduct contrary to justice, honesty, or morality. The court concluded that bigamy, being contrary to the Hindu Marriage Act, 1955, and involving deceit and dishonesty, constitutes moral turpitude. Therefore, the appellant's conviction for bigamy disqualified him under Section 8 of the Chartered Accountants Act, 1949.

3. Compliance with Principles of Natural Justice:
The appellant claimed he was not heard before the removal order was passed, violating natural justice principles. The court noted that the ICAI had issued a notice on 29.12.2008, giving the appellant an opportunity to comment and appear for a personal hearing on 13.1.2009. The appellant chose not to appear, stating he did not want to respond to the notice. The court held that the appellant's refusal to participate in the hearing precluded him from claiming a violation of natural justice.

4. Legality of the Removal of the Appellant's Name from the Register:
The ICAI removed the appellant's name from the register under Section 20(1)(d) of the Chartered Accountants Act, 1949, which allows removal for disabilities mentioned in Section 8, including conviction for an offense involving moral turpitude. The court upheld the ICAI's decision, noting that the appellant's conviction for bigamy, which involves moral turpitude, rendered him disqualified by operation of law. The removal was legally justified and did not require interference.

Conclusion:
The court dismissed the writ appeal, affirming the ICAI's decision to remove the appellant's name from the register of Chartered Accountants. The appellant's conviction for bigamy constituted moral turpitude, justifying his disqualification under Section 8 of the Chartered Accountants Act, 1949. The ICAI's reopening of the case and subsequent removal order complied with legal and procedural requirements. No costs were awarded, and connected miscellaneous petitions were also dismissed.