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TMI Blog2019 (3) TMI 337X X X X Extracts X X X X X X X X Extracts X X X X ..... and, therefore, the Board and/or ICAI would have no jurisdiction to entertain a complaint in this regard. 2. The proceedings before the ICAI were commenced pursuant to a complaint filed by respondent no.2. He had alleged that the petitioner had outraged the modesty of his daughter (hereafter referred to as 'HA') and also committed certain offences punishable under the Indian Penal Code, 1860 (IPC). He stated that the petitioner was acquainted with HA, as both of them were students of the same school and the petitioner's residence was also located in the vicinity. It is stated that there was an incident of harassment in 2004 and a complaint was lodged by HA with Shalimar Bagh Police Station. In connection with the said complaint, the petitioner had submitted a statement on 12.09.2004, wherein he undertook that he would not go to the street on which HA's residence was located and would neither speak to her nor obstruct her while she was on her way. The complainant (respondent no.2) alleged that despite the aforesaid undertaking, the petitioner had repeated the offence twice, thereafter. 3. HA alleged that the petitioner was stalking her and had repeatedly accosted her while she wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereunder. 9. The Board considered the aforesaid opinion at a meeting held on 06.11.2015. The relevant extract of the minutes of the said meeting are set out below:- "The Board considered the prima facie opinion dated 18th October, 2015 of the Director along with the Complaint, Written Statement of the Respondent and Rejoinder of the Complainant. The Board, on consideration of the same, was of the view that the charges alleged against the Respondent are grave and his alleged acts clearly bring disrepute to the profession of Chartered Accountancy. Thus, the Board did not agreed with the prima facie opinion of the Director that the Respondent is not guilty of Other Misconduct falling within the meaning of Clause (2) of part IV of the First Schedule to the Charted Accountants Act, 1949 [as amended from time to time] and decided to proceed further under chapter IV of these Rules. The Board also directed the Directorate that in terms of the provisions of sub-rule (2) of Rule 14, the prima facie, opinion formed by the Director including particulars or documents relied upon by the Director, if any, during the course of formation of prima facie opinion be sent to the Respondent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18.11.2010, High Court of Delhi @ para 24 and para 26 to para 30. 5. Council of Institute of Chartered Accountants of India v. Mahesh Kumar Gupta & Anr.: Chartered Reference No.2 of 2012, Date of Decision 12.08.2016, High Court of Delhi @ para 11 and para 12. Reasons and Conclusion 14. Chapter V of the Institute of Chartered Accountants Act, 1949 (the Act) contains provisions regarding misconduct. Section 21 of the Act provides for the constitution of a Disciplinary Directorate, and is set out below:- "21. Disciplinary Directorate (1) The Council shall, by notification, establish a Disciplinary Directorate headed by an officer of the Institute designated as Director (Discipline) and such other employees for making investigations in respect of any information or complaint received by it. (2) On receipt of any information or complaint along with the prescribed fee, the Director (Discipline) shall arrive at a prima facie opinion on the occurrence of the alleged misconduct. (3) Where the Director (Discipline) is of the opinion that a member is guilty of any professional or other misconduct mentioned in the First Schedule*, he shall place the matter before the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber is in practice or not. Part IV of the First Schedule to the Act lists out other misconduct. The said part is relevant in the context present petition and is set out below:- "PART IV : Other misconduct in relation to members of the Institute generally A member of the Institute, whether in practice or not, shall be deemed to be guilty of other misconduct, if he− (1) is held guilty by any civil or criminal court for an offence which is punishable with imprisonment for a term not exceeding six months; (2) in the opinion of the Council, brings disrepute to the profession or the Institute as a result of his action whether or not related to his professional work." 18. As is apparent from the plain language of Part IV of the First Schedule to the Act, the expression 'other misconduct' includes any conduct, which brings disrepute to the profession or the ICAI as a result of an action whether or not related to professional work. Thus, it is not necessary that the misconduct complained of should be a conduct in exercise of the profession of Chartered Accountancy. Any conduct, which tends to bring disrepute, would be a subject matter of proceedings under Chapter V of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the definition of the material expression used in 21, sub-s. (1), refers to the acts and omissions specified in the schedule, the list of the said acts and omissions is not exhaustive; and, in any event, the said list does not purport to limit the powers of the Council under s. 21, sub-s. (1), which may otherwise flow from the words used in the said sub-s. itself." 20. In a recent decision in Council of the Institute of Chartered Accountants of India v. Shri Gurvinder Singh & Anr. : Civil Appeal No. 11034/2018 decided on 16.11.2018, the Supreme Court had allowed an appeal preferred against the decision of this Court. In that case, a complaint was made against a Chartered Accountant who had sold certain shares of a public limited company to the complainant therein, in the year 1999. However, the transfer deeds were lodged subsequently in November, 2014. The Chartered Accountant in question (respondent no.1 therein) continued to receive the dividends in respect of those shares. Initially, respondent no.1 claimed that he had not sold the shares to the complainant but thereafter, settled the matter with him. The Disciplinary Committee found that the conduct of Chartered Accounta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention that the Board of Discipline does not have the jurisdiction to examine the alleged misconduct on the part of the petitioner. Clause (2) of Part-IV of the First Schedule to the Act is wide, and would include within its scope, any conduct that would tend to bring disrepute to the profession or the Institute. If a Chartered Accountant is found to have been guilty in outraging the modesty of a woman and/or other offences involving moral turpitude, it would not be inapposite for the Board of Discipline to also conclude that the conduct did, in fact, lower the dignity of the profession. In this view, this Court is not able to accept that the proceedings before the Board of Discipline are without jurisdiction. 23. It was also contended on behalf of the petitioner that the Board of Discipline could not return any finding as to whether the petitioner was guilty of any of the offences alleged in the FIR, as the said matters were pending trial before the concerned Court. In this regard, it is relevant to mention that the standards of proof as required in Disciplinary Proceedings and Criminal proceedings are different. Whereas, the standard of proof as required in the criminal proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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