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2017 (2) TMI 956 - SC - Indian LawsGuilty of gross negligence by advocate - faliure to get the acknowledgment from the complainant-respondent - Held that - The act of the present appellant cannot be treated to be in the realm of gross negligence. It would be only one of negligence. The tenor of the impugned order, as we notice, puts the blame on the appellant on the foundation that he had not received the acknowledgment. He has offered an explanation that he had given the cheque to the police. There has been no delineation in that regard. That apart, there is no clear cut analysis on deliberation on gross negligence by the advocate. The Disciplinary Committee found the appellant guilty of gross-negligence as he had failed to get the acknowledgment from the complainant-respondent. The examples given by the Constitution Bench are of different nature. In the obtaining factual matrix, therefore, we are unable to accept the conclusion arrived at by the Disciplinary Authority of the Bar Council of India that the negligence is gross. Hence we are impelled not to accept the submission advanced by learned counsel for the respondent. Thus analysed, we are disposed to allow the appeal and accordingly, we so direct and the order passed by the Disciplinary Committee of the Bar Council of India is set aside. Though we have set aside the order, on a suggestion being made, Mr. Sanjay Parikh, learned counsel for the appellant, agreed that the amount paid to the complainant need not be refunded. The amount that has been deposited to the Bar Council of India shall be refunded by the Bar Council of India. There shall be no order as to costs.
Issues Involved:
1. Whether the appellant was guilty of gross negligence in discharging his professional duties. 2. Whether the punishment imposed by the Disciplinary Committee of the Bar Council of India was justified. Issue-wise Detailed Analysis: 1. Gross Negligence in Professional Duties: The appellant, an advocate, was engaged by the respondent to handle a matrimonial dispute and subsequently to file a complaint under Section 138 of the Negotiable Instruments Act, 1881, due to a dishonored cheque. Instead, the appellant filed a complaint under Section 420 of the Indian Penal Code. The respondent alleged that the appellant did not return the cheque, leading to a disciplinary proceeding initiated by the Bar Council of Kerala and later transferred to the Bar Council of India. The Disciplinary Committee found the appellant guilty of gross negligence primarily because he did not obtain an acknowledgment for the cheque from the respondent. The appellant contended that the cheque was handed over to the investigating agency as per the Magistrate's direction under Section 156(3) of the CrPC. The Supreme Court noted that the Disciplinary Committee did not consider whether the cheque was handed over to the police and found no clear evidence of gross negligence, only negligence. 2. Justification of Punishment: The Disciplinary Committee of the Bar Council of India imposed a punishment of reprimand and a fine of ?5,000/- each to the Bar Council and the complainant, failing which the appellant would be suspended from practice for six months. The appellant argued that the punishment was disproportionate as the case involved mere negligence, not gross negligence. The Supreme Court referred to the distinction between negligence and gross negligence established in previous judgments, emphasizing that gross negligence involves moral turpitude or delinquency. The Court concluded that the appellant's actions did not amount to gross negligence as there was no clear evidence of moral delinquency or unethical behavior. Therefore, the punishment imposed was deemed unjustified. Conclusion: The Supreme Court set aside the order of the Disciplinary Committee of the Bar Council of India, ruling that the appellant was guilty of negligence but not gross negligence. The amount paid to the complainant was not to be refunded, and the amount deposited to the Bar Council of India was to be refunded. No order as to costs was made.
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