9911796707
TMI Blog2025 (2) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... intainability, looking at the cascading effect which the findings of guilt against him are likely to have on his professional career, the appellant deserves to be granted an opportunity to be heard on merits on his challenge to the findings of the BoD holding him guilty of "other misconduct" under the Act. The question, whether dishonour of cheques issued by a Chartered Account would fall within the ambit of the term "other misconduct" as envisaged as under the Act would have to be examined on a case to case basis by taking into account the facts and circumstances of each case - Reference may be made to the following observations of the Apex Court in Institute of Chartered Accountants of India v. H.S. Ghia [2004 (8) TMI 782 - BOMBAY HIGH COURT] where it was held that 'the word "misconduct" though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed on him by the Board of Discipline (BoD) under Section 21A of the Chartered Accountants Act, 1949 ('the Act'). We may at this stage itself note that the BoD had after holding the appellant guilty of 'other misconduct' as envisaged under Clause (2) of Part IV of the First Schedule to the Act, imposed a penalty of removal of his name for a period of three months from the register of members of respondent no. 1 alongwith a fine of Rs. 10,000/-. This penalty was modified by the Appellate Authority to that of reprimand alongwith the same fine of Rs. 10,000/- as imposed by the BoD. 3. The writ petition preferred by the appellant, we find, was dismissed by the learned Single Judge on 20.11.2014 primarily on the ground that the appellant had not assailed the findings of 'other misconduct' under the Act arrived at by the BoD. The appellant had then preferred a review petition before the learned Single Judge by urging that his appeal ought to have been adjudicated on merits. This review also came to be rejected on 06.07.2017 with the learned Single Judge again holding that once the appellant had given up his challenge to the BoD's finding of guilt before the Appellate Authority, he cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the term "other misconduct" as defined under the Act, would require an intentional act on the part of the member. He submits that there was no intention whatsoever of the appellant to cheat respondent no.4 as in the present case, the appellant had never denied having issued the cheques but had prayed a bona fide defense that the said cheques had been given by way of a collateral security and the amount received from respondent no.4 by way of loan had already been returned to him in cash. 7. Finally, he contends that when the impugned order was passed by the BoD, the complaint preferred by the respondent no.4 under Section 138 of the Negotiable Instruments Act, 1881 was still pending adjudication and therefore, it was even otherwise premature for the BoD to hold the appellant guilty of any misconduct. In any event, now that the appellant stands acquitted in the complaint case preferred by the respondent no.4 under Section 138 of the Negotiable Instruments Act, 1881, it is evident that the findings of misconduct against him are liable to be set aside. He, therefore, prays that the appeal be allowed and the orders passed by the learned Single Judge as also by the Appellate Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. 12. Having considered the submissions of learned counsel for the parties and perused the records, we find that the appellant has, in the present appeal, sought to raise a number of grounds to assail the findings of BoD holding him guilty of 'other misconduct' under the Act, which grounds had also been raised both before the learned Single Judge as also the Appellate Authority. It, however, emerges that since the Appellate Authority while disposing the appeal preferred by the appellant on 17.01.2012, observed that he had not assailed the order of the BoD on merits and therefore, there was no requirement to examine the aspect as to whether the appellant's conduct amounted to misconduct under the Act, the learned Single Judge has also declined to examine the appellant's challenge to the BoD's order dated 22.11.2011 holding him guilty of "other misconduct" under the Act. 13. The appellant has vehemently denied that he had ever given up his challenge before us on merits to the order passed by the BoD before the Appellate Authority. In support of this plea, the appellant has contended that soon after the passing of the order by the Appellate Authority before whom he had appeared i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o direct this petitioner to bring a D.D for a sum of Rs.5, 00.000, so that all the proceedings pending between the parties will be compromised and closed. In that view only, the Hon'ble Appellate Authority directed notice to the complainant to appear before the Hon'ble Appellate Authority, to appraise the view of the complainant in this regard. 9.11 The complainant cleverly absented himself and this Hon'ble Appellate Authority with the fond belief that the complainant would withdraw all the cases filed against the petitioner/appellant in case of receipt of the D.D, had directed accordingly. Throughout the enquiry before the Board of Discipline, the complainant maintained that his only interest is to recover the principal amount and he is not claiming any interest on the amount advanced by him. In that same view only, the Petitioner/appellant also came forward to settle such amount as ordered by this Hon'ble Appellant Authority, for granting the stay on 7/2/2012. 9.12 The petitioner states that he had complied with the conditional order passed by this Hon'ble Appellate Authority to show his bona fide. The Hon'ble Appellate Authority also in appreciation of the bona fide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late Authority to assail the findings of the BoD, which grounds he appears to have not pursued at the time of hearing before the Appellate Authority, where he had appeared in person. No doubt, the order passed by the Appellate Authority on 17.07.2012, records that the appellant had not assailed the findings of the guilt on merits, but taking into account that the appellant had soon thereafter, preferred a review petition seeking rehearing of appeal on merits, which request was rejected by the Appellate Authority on the ground of maintainability, we are of the view that looking at the cascading effect which the findings of guilt against him are likely to have on his professional career, the appellant deserves to be granted an opportunity to be heard on merits on his challenge to the findings of the BoD holding him guilty of "other misconduct" under the Act. We can also not lose sight of the fact that the appellant already stands acquitted in the proceedings initiated against him under Section 138 of Negotiable Instruments Act. 17. We also find that even though the learned Single Judge had rejected the appellant's writ petition, he had also observed that the appellant may have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order." (emphasis supplied) 19. Thus, it is evident that the dishonor of the cheques issued by the appellant had to be considered in the light of his explanation that though he had taken a loan from respondent no.4, he had already returned the loan amount to him in cash. In order to appreciate as to whether the BoD before coming to a conclusion that the appellant was guilty of misconduct, had duly examined all the facts and circumstances, it would be apposite to refer to the relevant extracts of the BoD's order dated 22.11.2011. The same reads as under: "12.1 The Board noted that firstly, the Respondent was not able to bring on record any documentary and/or circumstantial evidence to prove that he had actually paid the - . money to the Complainant. 12.2 The Pronotes were execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Authority for reconsideration of his appeal on merits. However, taking into account that the appeal was originally filed by the appellant about thirteen years ago, we grant him an opportunity to file a supplementary appeal within a period of four weeks, which will be placed before the Appellate Authority of respondent no. 1 for being decided within a period of two months from the date of receipt of the appeal by passing a reasoned and speaking order. Needless to state that while deciding the appeal afresh, principles of natural justice will be followed and the appellant will, as per rules, be permitted to take the assistance of a counsel during the hearing before the Appellate Authority. 22. For the aforesaid reasons, we allow the present appeal and set aside the impugned orders passed by the learned Single Judge as also the order passed by the Appellate Authority and remand the matter back to the Appellate Authority for reconsideration of the appellant's original appeal alongwith the supplementary appeal, for which purpose the appellant is being granted four weeks time. As directed hereinabove, the appeal will be decided by the Appellate Authority by passing a reasoned and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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