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TMI Blog2017 (2) TMI 956X X X X Extracts X X X X X X X X Extracts X X X X ..... ctual score would unroll, the respondent-complainant engaged the appellant as advocate in respect of a matrimonial dispute and during the pendency of the matrimonial case, the wife of the respondent breathed her last due to kidney failure in the year 2002. The appellant advised the complainant-respondent that as the wife had expired, there was no justification to prosecute any further the case for divorce and it was advisable to withdraw the said litigation. In the meantime, the respondent engaged him to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act') as a cheque issued by one Ramachandran in favour of the respondent for a sum of Rs. 75,000/- (Rupees seventy five thousand only) had been dishonoured. It is not in dispute that the appellant thought it appropriate not to file a complaint under the N.I. Act but he felt it apposite to file a complaint case before the competent Magistrate under Section 420 of the Indian Penal Code and accordingly he did so. As is demonstrable, the learned Magistrate directed investigation to be conducted under Section 156(3) of the Code of Criminal Procedure. The eventual result of the said i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned. Though he stated the cheque which he has returned was not the subject matter of the complaint, but he failed to et (sic) an acknowledgment from the respondent for having returned the cheque. It is a well settled law that a person who is throwing allegation against another person, the burden of proof is on the part of the complainant who is throwing the allegation. Here in this case, the complainant had not proved his case beyond reasonable doubt and hence we are not inclined to give severe punishment to the respondent herein." 5. While expressing the aforesaid opinion, the Disciplinary Committee observed that as the appellant was an advocate, he should have been more careful and, therefore, he was guilty of gross negligence and accordingly imposed the punishment as has been indicated hereinbefore. 6. On a perusal of the analysis of the findings returned by the Disciplinary Committee of the Bar Council of India, it is evident that it has taken exception to one aspect, namely, the appellant had not obtained the acknowledgment of the cheque from the respondent. Be it noted, the Disciplinary Committee did not think it appropriate to advert to the fact whether the cheque was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advocate is suspended from practice under clause (c) of sub section (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India. (5) Where any notice is issued to the Advocate-General under sub-section (2) the Advocate -General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf. Explanation - In this section, section 37 and section 38 the expression "Advocate-General" and "Advocate-General of the State" shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India." 10. On a plain reading of the aforesaid provision, it is clear as crystal what punishment is to be imposed in case of misconduct. In the case at hand, as we find, that a conclusion has been arrived at by the Disciplinary Authority that it is a case of gross negligence at the hands of the appellant. As urged by Mr. Parikh, it is only required to be seen whether it is a mere negligence or gross negligence. 11. The Constitution Bench, in the matter of Mr. 'P' an Advocate, (supra) has ruled that mere negligence or error of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e honesty of an Advocate is extremely significant. The conduct of an Advocate has to be worthy so that he can be called as a member of the noble fraternity of lawyers. It is his obligation to look after the interest of the litigant when is entrusted with the responsible task in trust. An Advocate has to bear in mind that the profession of law is a noble one. In this regard, we may fruitfully refer to what has been stated in Sanjiv Datta Dy. Secy. Ministry of Information & Broadcasting, In re. (1995) 3 SCC 619:- "The legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. Although the entry to the profession can be had by acquiring merely the qualification of technical competence, the honour as a professional has to be maintained by its members by their exemplary conduct both in and outside the court. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilised society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efensible by the Disciplinary Committee of Bar Council. In this regard it is fruitful to reproduce the following passage from the said authority:- "There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. In re A Vakil, Coutts Trotter, C.J. followed the decision in re G. Mayor Cooke and said that: "Negligence by itself is not professional misconduct; into that offence there must enter the element of moral delinquency. Of that there is no suggestion here, and we are therefore able to say that there is no case to investigate, and that no reflection adverse to his professional honour rests upon Mr. M.', The decision was followed by the Calcutta High Court in re An Advocate, and by the Allahabad High Court in the matter of An Advocate of Agra and by this court in the matter of P. An Advocate. The decision was followed by the Calcutta High Court In re An Advocate [AIR 1955 CAL 484], and by the Allahabad High Court In the matter of An Advocate of Agra [AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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