2023 (10) TMI 989 - HC - Indian Laws

Professional misconduct - Charge of carrying on business without permission, i.e., professional misconduct within the meaning of Clause (11) of Part I of the First Schedule - Respondent using his position as Chartered Accountant induced the Complainant to give a loan, which was not repaid fully - HELD THAT - As held in D.K. AGRAWAL VERSUS COUNCIL OF THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA 2021 (10) TMI 526 - SUPREME COURT report of the Disciplinary Committee will only contain a statement of the allegations, the defence entered by the members, the recorded evidence and the conclusions expressed by the Disciplinary Committee. The conclusions of the Disciplinary Committee are tentative and the same are not recorded as findings. It is only the Council which is empowered to find out whether the member is guilty of misconduct. The Council has to determine that a member is guilty of misconduct and the task of recording of the findings has been specifically assigned to the Council. After recording a finding that a member is guilty of misconduct, the Act moves forward to the final stage of penalisation. The penalty which follows is so harsh that it may result in the removal from the Register of Members for a substantial number of years. The removal of his name from the Register deprives a member of the right to a certificate of practice. The findings by the Council constitutes the foundation for the penalty imposed by the Council on him - The person who is adversely affected wants to know as to why his submissions have not been accepted. Giving of reasons ensures that a hearing is not rendered as a meaningless charade. Unless an adjudicatory body is required to give reasons and make findings of fact indicating the evidence upon which it relied, there is no way of knowing whether the concerned body genuinely applied itself to and evaluated the arguments and the evidence advanced at the hearing. Giving reasons is all the more necessary because it gives satisfaction to the party against whom a decision is taken. It is a well known principle that justice should not only be done but should also be seen to be done. Charge of carrying on business without permission, i.e., professional misconduct within the meaning of Clause (11) of Part I of the First Schedule - HELD THAT - The Council states that it has decided that an opportunity of hearing be given to him before passing any orders. There is nothing to indicate any further hearing happened or any decision has been taken. Therefore, we will proceed on the basis that there is no recommendation as regards this charge - Moreover, there are no discussions or reasons as regards the recommendations for removal for a period of three months or why the recommendations of the Disciplinary Committee was not acceptable. Therefore, we are not inclined to accept the recommendations in respect of Other Misconduct . The complaint against respondent was lodged in 1996 primarily for non return of the loan taken. The loan amount has been repaid way back in 1998. The fact that the pendency of this Reference itself as well as the process of Disciplinary proceedings instituted by the institute itself would be like the proverbial Damocles sword hanging over the head of respondent for over 27 years. There is no need to take any further action against respondent - Reference disposed.

Summary

Issues Involved:
1. Professional Misconduct - Non-return of Loan and Issuance of Bogus Cheques
2. Professional Misconduct - Carrying on Business without Permission
3. Other Misconduct - Threatening the Complainant

Issue-wise Summary:

1. Professional Misconduct - Non-return of Loan and Issuance of Bogus Cheques:
The respondent, a Chartered Accountant, was accused of inducing the complainant to give a loan of Rs.90,000/- and subsequently issuing four bogus cheques that bounced. The Council of the Institute of Chartered Accountants of India (ICAI) found the respondent guilty of professional misconduct. The respondent later repaid the entire loan amount, and the Metropolitan Magistrate's Court fined him Rs.2,000/-. The fine was paid, and the complainant withdrew the third charge of physical threat.

2. Professional Misconduct - Carrying on Business without Permission:
The respondent admitted to conducting business under the name "Sai Investment" without obtaining prior permission from the ICAI, which is a violation under Clause (11) of Part I of the First Schedule of the Chartered Accountants Act, 1949. The Disciplinary Committee recommended a lenient view due to the respondent's cooperative attitude and personal financial difficulties. However, the Council recommended the removal of the respondent's name from the Register of Members for three months without providing independent reasons or discussions for this decision.

3. Other Misconduct - Threatening the Complainant:
The complainant withdrew the charge of physical threat, and therefore, this issue was not considered further.

Final Judgment:
The High Court noted that the Council's recommendations lacked independent reasoning and were made mechanically. Given that the loan was repaid in 1998 and considering the prolonged pendency of the case for over 27 years, the Court decided that no further action was necessary. The Court directed the ICAI to file the proceedings and disposed of the reference without any order as to costs.