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TMI Blog1984 (10) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... f his senior. Shri M. Ram Mohan Rao was a tenant of the premises bearing Municipal No. 3242 situated at Rashtrapathi Road, Kingsway, Secunderabad of which respondent Tek Chand son of Lala Moti Ram was the owner. It is alleged that the respondent, his wife Mohini and son Subhash Chandra sold and conveyed the house in question by a deed of conveyance in favour of Premlata wife of Sohan Lal Saloot and daughter of Hustimal Jain for a consideration of ₹ 65,000. As the sale was for a consideration of more than 50,000 the vendor was required to produce an Income-tax Clearance Certificate as required by Sec. 230 of the Income-tax Act, 1962 before the sale deed could be registered. It may be mentioned that sometime before the alleged transaction of sale, a suit was filed by respondent Tek Chand against Shri M. Ram Mohan Rao, the tenant for eviction on the ground of non-payment of rent etc. This suit had ended in a decree and at the relevant time, an appeal preferred by Shri M. Ram Mohan Rao was pending. To resume the narrative Tek Chand had already obtained the necessary Income-tax clearance certificate on July 5, 1972. When the sale deed was presented for registration, the Registrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he affidavit. It was alleged that someone impersonated Tek Chand and this must be known to the appellant because he knew respondent Tek Chand for many years prior to the attestation of affidavit. It was alleged that a suit had been filed by Tek Chand against Mr. M. Ram Mohan Rao for recovering the arrears of rent in the amount of ₹ 17,000 and obviously to cause damage to Tek Chand, appellant the junior of Mr. M. Ram Mohan Rao attested a forged signature on the affidavit. The application with the affidavit annexed was submitted to the Income tax department on the same day, and the Income-tax clearance certificate was procured through Mulchand which was produced in the office of Sub-Registrar, Secunderabad. Thus the vendee Premlata got the sale deed registered on the strength of forged documents to which the appellant was a party and that wrongful loss was caused to the respondent in the amount of ₹ 1,35,000 which was facilitated by the appellant. It was alleged that this constitutes a very serious professional misconduct and necessary enquiry be made and appropriate action be taken. The appellant appeared and filed a counter affidavit denying all the allegations It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Council ('State Committee' for short) to whom the complaint was referred for disposal after minutely analysing the oral and documentary evidence, rejected the evidence of PW-2 Mohan Lal witness examined by the complainant and RW-2 Mr. N. Satyanarayana, advocate examined as witness by the appellant, observing that both were partisan on witnesses and no credence can be given to their evidence. The Committee also rejected the allegation that the appellant was paid ₹ 300 by Mr. Hastimal for attesting affidavit Ex. A-1, observing that there was no cogent and unimpeachable evidence in support of this allegation. The Committee further held that complainant Tek Chand never approached the appellant with Ex. A-1 and therefore, the explanation of the appellant that he attested the affidavit on the statement made by the respondent that it bears his signature cannot be accepted. The Committee concluded that the attestation of Ex. A-1 amounts to witnessing the fact that the deponent affirmed the truthfulness and genuineness of what was stated in the affidavit and signed in his presence, but this would be untrue without the presence of deponent Tek Chand and therefore, the endorsem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the appellant that he should be careful in future in such matters. The Appellate Committee then proceeded to accept one contention on behalf of the learned advocate appearing for the appellant and expunged the observation of the State Committee that the appellant had not attested Ext. A-1 in the presence of the complainant and that his act of the appellant was improper and comes within the mischief of profession misconduct and contrary to the norms of professional etiquette on the ground that these observations were uncalled for especially in view of the fact that the Committee disbelieved the evidence of P.W. 2 on the question of payment of ₹ 300 and presentation of affidavit by Mool Chand. It would be presently pointed out that the expunging of those remarks was uncalled for and betrays total non-application of mind while disposing of the appeal. Undaunted by two failures but presumably encouraged by the ludicrous punishment, the appellant filed this appeal in this Court under Sec. 38 of the Advocates Act, 1961. By the order made on August 7, 1978, the appeal was admitted and directed to be included in the list of short matters. The respondent on being served, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded by the State Bar Council and the other facts and circumstances of the case the punishment awarded against him should not be enhanced. This appeal will be heard along with cross objection filed by the respondent. C.A. No. 1019/78 to be treated as P.H. Mr. Govindan Nair, learned counsel who appeared for the appellant submitted that the facts found both by the State Committee and the Appellate Committee would not constitute professional misconduct for which the appellant may incur a penalty. Before we proceed to examine what constitutes professional misconduct, we may briefly point out the facts concurrently found by the State Committee and the Appellate Committee. After extensively reproducing the evidence led in the case and after rejecting the evidence of PW-2 Mohan Lal, a witness examined by the respondent and RW-2 N.Satyanarayana, a witness examined by the appellant, the State Committee concluded that the affidavit Ext. A-1 was not taken to the appellant by the respondent nor did he admit his signature on the affidavit Ext. A-1 in the presence of the appellant. The affidavit Ext. A-1 contains certain obviously incorrect statements in that even though responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 300 and presentation of the affidavit by Mool Chand.' It has been very difficult for us to appreciate this disjointed reasoning. However, it is crystal clear that both the fact finding authorities concurrently agreed that the respondent did not put his signature on Ext. A-1 in the presence of the appellant and yet the appellant by contributing his attestation to the affidavit made a declaration that the signature was of the appellant made in his presence, and admittedly that not being true the appellant was guilty of misconduct. Does this constitute professional misconduct is the question? The narrow question that falls for our consideration in this case is whether the appellant, an enrolled advocate, who was authorised to attest an affidavit that can be used in civil or criminal proceedings committed impropriety in attesting an affidavit which attestation would imply that the deponent subscribed his signature to the affidavit in his presence after taking the requisite oath that ought to be administered to him because there is no dispute that an affidavit is a sworn statement of the deponent. The expression 'affidavit' has been commonly understood to mean a swor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforementioned rules sets out officers authorised to administer oath for the purpose of affidavits and an Advocate or Pleader other than the Advocate or Pleader who has been engaged in such a proceeding have been included in the list of officers authorised to administer oath. The appellant as an advocate enrolled by the State Bar Council was thus authorised to administer oath for the purpose of an affidavit and attest the same. This was not disputed before us. It is not in dispute that Ext. A-1 is an affidavit purporting to have been made by the respondent in the presence of the appellant and attested by him. The appellant admits in no uncertain terms that Ext. A-1 bears his attestation. If the matter were to rest here it would mean that the respondent appeared before the appellant with his affidavit. Thereupon, the appellant administered oath to him and on the respondent taking the oath and affirming the truth of the statement made in the affidavit, put his signature on the affidavit in the presence of the appellant and then the appellant subscribed his signature to the affidavit in token of his having administered the oath and the respondent having affixed his signature i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tact his junior the present appellant for the purpose of swearing the affidavit. If the Oath Commissioners were a scarce commodity, one may have to go in search of a rare commodity but the relevant rules 34 and 40 clearly show that every advocate was authorised to administer oath for the purpose of affidavit and attest the same. Secondly, the affidavit was for the purpose of obtaining an income-tax clearance certificate. Now there is unimpeachable evidence on record that the respondent had already obtained an income-tax clearance certificate way back on July 5, 1972. In his examination-in-chief in the course of disciplinary proceedings, the respondent stated that on July 5, 1972, he obtained income-tax clearance certificate from the income- tax officer. There is no cross-examination on this point. It clearly amounts to an acceptance of the fact that way back on July 5, 1972 the respondent had already obtained an income-tax clearance certificate. Therefore, it is not necessary for him to obtain any fresh income-tax clearance certificate. He had therefore no reason to approach the appellant for attesting the affidavit for the avowed object of obtaining an income-tax clearance certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72. The Income Tax Officer in his letter Ext. A-3 addressed to the respondent states that an application for obtaining an income-tax clearance certificate was presented in the name of the respondent on October 31, 1972. If the application was thus made to the Income Tax Officer on October 31, 1972, it creates a grave doubt about the existence of affidavit Ex. A-1 which has been attested by the appellant on November 1, 1972. Of course, we are not inclined to attach much importance to this aspect for the reason that the Income Tax Officer may have committed a mistake in referring to the application dated October 31, 1972 by merely looking at the date on the application and not the date on which it was presented. Now the cumulative effect of these various pieces of evidence accepted as wholly reliable and practically uncontroverted is that the respondent did not approach the appellant either on October 31, 1972 or November 1, 1972 nor did he present any affidavit for attestation nor did he admit his signature on Ex. A-1 to the appellant. What conclusion can be deduced from the totality of aforementioned evidence? And this bas to be ascertained in the context of the affirmative stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertainly constitute professional misconduct. Let us keep this concession aside and come to our own conclusion whether the actions indulged in by the appellant by becoming a party to the forged documents so as to facilitate commission of fraud would constitute professional misconduct. Provisions contained in Chapter II in Part VI of the Bar Council of India Rules of 1975 prescribe 'Standards of Professional Conduct and Etiquette'. In the preamble to this part, it is stated that 'an advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate.' There follows enumeration of the conduct expected of a member of the profession. It is however made clear that the rules in Chapter-II contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specificall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learly committed an error in deleting some of the observations of the State Committee and that shows not only non-application of mind but a conclusion contrary to record which is wholly unsustainable. This aspect is open to us for our consideration as this Court has issued a notice as contemplated by the proviso to Sec. 38 of the Advocates Act, 1961 under which the appeal lies to this Court. This Court has jurisdiction to vary the order of the Appellate Committee which may even prejudicially affect the person aggrieved subject to this pre-requisite that it can do so only after a notice to such person and after giving him an opportunity of being heard. By Act 60 of 1973, specific power has been conferred on this Court that in an appeal by the person aggrieved by the decision of the Disciplinary Committee of the Bar Council of India to this Court, this Court may pass such order including the order varying the punishment awarded by the disciplinary committee of the Bar Council of India thereon as it deems fit. This jurisdiction will comprehend the jurisdiction to vary the finding of the Appellate Committee. The next question is: what should be the adequate punishment that must be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the amount of seriousness expected of him in attesting the affidavit, but he was consciously becoming a party to a serious conspiracy. None of the extenuating or mitigating circumstances appeal to us. 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 etc. the role of the members of the Bar can be appreciated. He said: The Bar is not a private guilt, like that of barbers, butchers and candlestick-makers' but, by bold contrast, a public institution committed to public justice and pro bono publico 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 as a professional person is regulated by himself and more formally, by the profession as a whole. The central function that the legal profession must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was starving, his professional misconduct could have been overlooked because between hunger and soliciting work, the letter is less pernicious. However, the Seven-Judges Constitution Bench of this Court at that stage did not interfere with the punishment of suspension from practising as advocate for a period of three years. Of course, the Constitution Bench was concerned with the narrow point about the maintenance of the appeal by the Bar Council of India. In V. C. Rangadurai v. D. Gopalan and Ors the delinquent lawyer Rangadurai was charged with duping the complainant T. Deivasenapaths, an old deaf man aged 70 years and his aged wife Smt. D. Kamalammal by not filing suits on two promissory notes. The Disciplinary Committee of the State Bar Council had imposed a penalty of suspension from practice for a period of six years. Sen, J. in his judgment had grave reservations about the majority decision by which the period of suspension was reduced and the advocate was directed to work under an Official/Legal Aid Board in Tamil Nadu where his service free of charge were required. Justice Sen would dismiss the appeal without the slightest reduction in punishment. Having given the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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