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CHEQUE BOUNS CASE

Advocates Act, 1961-Section 18-Appeal against order passed by Bar Council of India-Amount deposited towards court fee misappropriated by Advocate- Cheque issued to refund amount to client dishonoured for insuf-ficient funds-Advocate denied signature on the cheque-Licence to practice suspended for 5 years as professional misconduct proved-On appeal Held, legal profession is known as a noble profession having high traditions and if a member of the profession falls from such standards, he deserves punishment commensurate with gravity of the misconduct-Opinion of a handwriting ex- pert was not needed for finding out the genuineness of the signature in view of the patent circumstantial evidence-No interference needed in the order but on undertaking that the Advocate would conform to standards of the profes-sion, period of suspension reduced to two- and-a-half years subject to refund of the amount with interest-Costs of appeal in addition to the costs awarded by the Bar Council to be deposited-Directions issued. Appellant, a practicing Advocate, received Rs. 25,102 towards court fees in addition to certain other amounts for filing a suit before High Court. Respondent having come to know that the said amount had been misappropriated and no steps had been taken in her case. On being so told by the respondent the appellant issued a cheque for Rs. 38,000 favouring the employees union represented by the respondent, in order to refund the court fees with interest. This cheque was dishonoured twice for insufficient funds. On a complaint, the Bar Council of India, after examining the respondent and various exhibits produced found the appellant guilty of professional misconduct. His licence to practice was suspended for a period of five years. Hence this appeal. The appellant contended before this court that when signatures on the receipts and the cheque had been denied by him it became incumbent upon the Bar Council of India to seek opinion of a handwriting expert; and that the said court fees had never been paid to him.

An example of a cheque.

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PETITIONER:
L.C. GOYAL

 Vs.

RESPONDENT:
MRS. SURESH JOSHI & ORS.

DATE OF JUDGMENT: 12/03/1999

BENCH:
V.N.Khare

JUDGMENT:

V.N. KHARE, J.

 This appeal under Section 18 of the Advocates Act 1961
(hereinafter referred to as he Act) at the instance of the
appellant who is a practicing Advocate of the High Court of
Delhi as well as an Advocate on Record of this Court is
directed against the order dated 2.3.1998 passed by the
Disciplinary Committee of the Bar Council of India on a
complaint filed by the respondent (hereinafter referred to
as complainant) whereby the Bar Council of India after
having found that the appellant has committed professional
misconduct, suspended his licence to practice for a period
of five years.

 The facts that emerge out of the complaint filed by
the complainant are these:

 Some time in September 1989, the complainant engaged
the appellant for filing a suit for injunction on the
Original Side of the High Court of Delhi. The appellant
filed the suit. The appellant is alleged to have charged
Rs.25,102/- towards payment of court fee and also Rs.389/-
for miscellaneous charges total amounting to Rs.25,491/-,
and also a further sum of Rs.6,500/- out of which Rs.3,500/-
was paid through cheque and a sum of Rs.3,000/- in cash.
The appellant gave receipt dated 6.10.89 for a sum of
Rs.6,500/- as well as receipt dated 6.10.89 for a sum of
Rs.25,102/-. Some time in 1992 the complainant came to know
that the appellant has not deposited the process fee and
also did not press the application for interim injunction
filed in the suit. The complainant on an enquiry found that
the appellant has misappropriated a sum of Rs. 25, 102/-
and also did not take any steps towards the progress of the
case. On being so told by the complainant the appellant
after realising his mistake issued a cheque dated 31.3.93
for a sum of Rs. 38,000/- on account of refund of court fee
amount along with interest. The said cheque was drawn on
UCO Bank and the same was deposited in the account of the
Union, namely, M/s. Siemens Employees Union, New Delhi
with the Central Bank of India. The said cheque bounced due
to insufficient funds. Later on when the complainant
approached the appellant informing him that the cheque has
bounced the appellant asked the complainant to deposit the
cheque again with an assurance that this time the cheque
would be honoured but again the cheque when it was deposited
on 15.5.93 was dishonored with the remarks insufficient
funds. The complainant then sent a notice dated 9.6.93
which remained unreplied. Under such circumstances the
complainant filed a complaint before the Delhi Bar Council.
Since the said complaint could not be decided within the
stipulated time it stood transferred to Bar Council of
India. Before the Bar Council of India the complainant
examined herself as well as got exhibited various documents,
namely, Ext.C-1 - receipt dated 6.10.89 for a sum of
Rs.6,500/-; Ext.C-2 - another receipt dated 6.10.89 which
was in respect of a sum of Rs.25,102/-; Ext.C-3 - case file
of the civil suit filed before the High Court of Delhi;
Ext.C-4 - cheque issued by the appellant dated 31.3.93 for a
sum of Rs.38,000/-; Ext C-5 & C-6. Memos of Central Bank
and UCO Bank respectively with respect to presentation of
cheque and its dishonoring on account of insufficient funds;
Ext.C-7 and C-8 - memos of Central Bank and UCO Bank with
respect to first presentation of cheque and its dishonoring
due to insufficient funds in the account of the appellant;
Ext.C-9 - counter foil of deposit of cheque in the account
of Siemens Employees Union; Ext.C-14 the certificate
issued by the S.H.O., Police Station, Tilak Marg, New Delhi
dated 28.7.95 to the effect that no complaint was received
from the appellant regarding theft of cheque book at Police
Station, Tilak Marg. Besides that the original file of the
civil suit No.2688/89 was summoned by the Bar Council. The
appellant denied the allegations that he has received a sum
of Rs.25,102/- towards payment of court fee and also denied
his signatures on Ext.C-1, C-2 and C-4 alleging that his
signatures were forged by the respondent herself. The Bar
Council after considering the entire material found that the
appellant had received a sum of Rs.25,102/- from the
respondent towards payment of court fee which he never
deposited in the Court and Ext.C-4 bears the signature of
the appellant. Consequently, the Bar Council after having
arrived at the conclusion that the appellant has committed
professional misconduct, suspended his licence to practice
for a period of 5 years. That is how the matter has come
before us.

 Sh. R.K. Jain, learned Senior counsel appearing for
the appellant advanced two submissions. The first
submission is that the appellant having denied his
signatures on Exts. C-1, C-2 and C-4 it was incumbent upon
the Bar Council to have sought an opinion of a hand-writing
expert for finding out the genuineness of the signatures on
those exhibits. He contended that the failure on the part
of the Bar Council to summon a hand-writing expert has
resulted in grave injustice to the appellant. The second
submission is that the appellant has never received a sum of
Rs.25,102/- towards payment of court fee and the finding
recorded by the Bar Council contrary to it is totally per
verse. Since both the submissions of learned counsel are
over-lapping, we propose to deal both the submissions
together.

 After we heard the matter and perused the record, we
find five established circumstances against the appellant
which are stated hereinafter.

 (1) The valuation of the suit given in the plaint
originally filed was purposely kept vague which was
subsequently amended without the knowledge of the
complainant.

 The suit was filed in 1989. However, the Registry of
the High Court returned the plaint for removing the
following defects:

 (i) That the prayer clause was not proper;

 (ii) That exact value for the purposes of court fee
and jurisdiction were not mentioned; and

 (iii) claim made and the court fee amount paid should
also be stated.

 On 26.9.89 the plaint was re-filed and a new para 50
was added. Prayer clause was also amended. Clarification
of the court fee amount was also made and paras 39, 40, 42
and 43 of the plaint were also amended. In paragraphs 39,
40, 42 and 43 of the plaint the words fixed court fee of
Rs.20/- is affixed on the plaint were added. In paragraph
50 which was a new paragraph at page 20 of the plaint, the
value of each prayer has been tentatively fixed at Rs.200/-
and the court fee of Rs.20/- on each prayer has been affixed
on the plaint were mentioned. Pages 20, 21 and 22 of the
plaint did not bear the signatures of the complainant
although all other pages of the plaint were signed by the
complainant. Thus it shows that initially no valuation was
given in the plaint but subsequently without any knowledge
of the complainant pages 20 to 22 of the plaint were
substituted under the signatures of the appellant. Had the
respondent been informed about the substitution of these 3
pages of the plaint the same would have contained the
signatures of the complainant. When the plaint was
originally filed the figures stated herein were not in the
plaint which facts are borne out from the report of the
Registry of the Delhi High Court. The amount mentioned in
paras 39, 40, 42, 43 and addition of para 50 with respect to
court fee was done by the appellant as the same were not in
existence when the plaint was filed at the first instance.
The aforesaid facts show that the valuation of the suit was
purposely kept vague when the plaint was filed for the first
time so that the respondent-complainant may not able to know
as to the actual amount of court fee affixed on the plaint.
The original plaint was summoned by the Bar Council and
after examining it the Bar Council recorded the following
findings :

 A prima facie look at this makes it clear that in
column No.5 stamp paper towards court-fees column has been
left blank and no figure has been mentioned therein. At
S.No.1 against the memo of parties, figure of Rs.140/- has
been mentioned and over vakalatnama Rs.2.75 has been
mentioned. It is further apparent that alignment of the
amount of Rs.140/- court fees paid for parties was not typed
at the same time as the alignment of the type clearly shows
that particulars and objects mentioned at the top of the
column horizontally same alignment whereas figure of Rs.140
is slightly below which clearly indicates that this was put
subsequently. Similarly, figure of Rs.2.75 at S.No.3
appears to have been mentioned subsequently as vakalatnama
and figure of 22 appears to have been typed at the same time
and Rs.2.75 is somewhat on lower level whereas, had all
these figures been typed at the same time, they would have
been in the same line and alignment. Thus, it appears that
figure of Rs.140/- and Rs.2.75 have been typed subsequently.

 We are in agreement with the aforesaid finding
recorded by the Bar Council and are of the view that the
aforesaid established circumstances clearly show that exact
amount of court fee to be paid on the plaint was purposely
kept vague and subsequently three pages were substituted so
that the complainant may not able to know the exact amount
of court fee paid on the plaint.

 (2) Dishonoring of the cheque issued by the appellant
Ex.C/4 by the bank on account of insufficient fund in the
account of the appellant.

 The complainant alleged that when the appellant
realized that the complainant has come to know that he has
misappropriated a sum of Rs. 25,491/-, he gave a cheque for
a sum of Rs. 38,000/- which is Ext.C-4. The said cheque
was drawn on UCO Bank and the same was deposited in the
Central Bank of India in the account of Union, viz.,
Siemens Employees Union, New Delhi. But the said cheque
was dishonored due to insufficient funds. The appellant
denied his signature on Ext. C-4 and contended that his
signature was forged by the complainant. It is in this
context that it was urged before the Bar Council of India
that some hand- writing expert be examined in order to find
out the genuineness of the signature on Ext. C-4. As
stated above, the cheque bounced not on account of the fact
that the signature on Ext. C-4 was not tallying with the
specimen signature of the appellant kept with the Bank, but
on account of insufficient funds. Had the signature on Ext.
C-4 been different, the bank would have returned the same
with the remark that the signature on Ext. C-4 was not
tallying with the appellants specimen signature kept with
the bank. The memos Ext. C-6 and Ext. C-8 issued by the
bank clearly show that signature of the appellant on Ext.
C-4 was not objected to by the bank, but the same was
returned with the remark insufficient fund. This
circumstance shows that the signature on Ext. C-4 was that
of the appellant.

 (3) The complainant was not beneficiary of Ex. C/4.

 As seen earlier the cheque Ext. C-4, issued by the
appellant was in favour of M/s. Siemens Employees Union,
New Delhi. The account payee cheque obviously was not
issued in the name of the complainant. By the aforesaid
cheque the complainant was not going to gain anything out of
it. The amount normally would have been credited in the
account of M/s. Siemens Employees Union, New Delhi. Thus,
this circumstance also shows that there was no reason for
the complainant to forge the signature of the appellant on
Exts. C-1, C-2 and C-4.

 4) No reply to the notices (Exts.C-12 and C-13) dated
9.6.93 and 11.1.93, respectively.

 The complainant sent two notices on behalf of M/s
Siemens Union to the appellant wherein she inter alia
alleged, that a sum of Rs. 25,102/- was misappropriated by
the appellant under the pretext of payment of the court fee
for the suit filed by the plaintiffs, that the appellant did
not press the application for injunction, and that the
appellant misled the complainant as regards the progress of
the case. These notices were not replied to by the
appellant which is a material circumstance against the
appellant when, receipt of the notices sent to him have been
admitted.

 5) No FIR lodged with regard to theft of the cheque
book.

 The case set up by the appellant before the Bar
Council was that, in fact, the complainant somehow managed
to get his cheque book and she after forging his signature
on one of the leaf presented the same to the bank for
payment. If it was true, why did the appellant not lodge
any FIR with the Tilak Marg Police Station regarding theft
of the cheque book. However, it was subsequently explained
by the appellant that he did send a letter to the SHO of the
said Police Station. But, in normal course, FIR is not
lodged by letter at the first instance. Moreover, SHO,
Tilak Marg Police Station gave a certificate Ext. C-14, to
the effect that he did not receive any registered letter or
report from the appellant regarding theft of his cheque
book.

 These established circumstances stated above, clearly
show that the signature on Exts. C-1, C-2 and C-4 were that
of the appellant himself. Moreover, during the course of
hearing of the case, we ourselves examined and compared the
admitted signature of the appellant with that of Ext. C-4
leaving nothing to chance lest any injustice is caused to
the appellant. On comparison, we found striking similarity
between the admitted signature and that of the disputed one
and there is no reason to doubt the genuineness of the
signature on Ext. C-4. The circumstances established in
the present case speak for themselves and candidly point out
towards the misconduct committed by the appellant. When the
established circumstantial evidence is so patent that it
leads to only one conclusion that the signature on Ext. C-4
was not forged; there was no need for an opinion of a hand
writing expert. We are, therefore, satisfied that the
established circumstantial evidence as well as the
documentary evidence in the present case show that the
allegations of the complainant were well substantiated and
in such circumstances of the case, the Bar Council of India
was justified in declining to summon a hand-writing expert
for finding out the genuineness of the signature on Ext.
C-4.

 Shri R.K.Jain, learned senior counsel, while
concluding his argument prayed that we may take a lenient
view of the matter in view of the fact that the appellant
has deposited the entire money covered by Ext. C-4. The
learned counsel also gave an undertaking on behalf of the
appellant that he would not repeat such a conduct.

 The legal profession is known as a noble profession
having high traditions and has been catering to the need of
the society for a very long time past. Thus the members of
this profession are expected to uphold those traditions and
serve the society with sincerity and honestly. If such are
the expectations from a noble profession, its members must
conduct themselves which may be worthy of emulation. By
doing any act which is contrary to the accepted norms and
standards of this profession, a member of the profession not
only discredits himself, but also brings disrepute to the
profession to which he belongs. By such acts the
credibility and reputation of the profession as a whole
comes under cloud. If any member of the profession falls
from such standards, he deserves punishment commensurate
with the gravity of misconduct. Initially, we were not
inclined to interfere with the order under appeal. However,
since the appellants counsel has given an undertaking on
behalf of the appellant to the effect that the appellant
would conform to the standards of the legal profession and
further, he has deposited a sum of Rs. 40,000/- to be paid
to the plaintiffs of the suit, we modify the order of the
Disciplinary Committee, Bar Council of India of suspending
the appellants licence to practice for a period five years
by reducing it to two and a half years, provided the
appellant also deposits interest on Rs. 38,000/- w.e.f
31.3.93 till the date of payment of money to the plaintiffs
@ Rs. 9% per annum. The appellant has already deposited a
sum of Rs. 40,000/- in the Court which has been invested in
a fixed deposit of a nationalised bank. The amount over and
above Rs. 38,000/- deposited by the appellant in this Court
and an interest accrued on the fixed deposit shall be
adjusted towards interest payable by the appellant. The
balance amount, if any, shall be paid by the appellant
within one month from the date of this judgment. In case
the appellant fails to deposit the aforestated amount within
the stipulated period, our order reducing the suspension
period of the appellants licence to practice would stand
recalled and all the consequences provided in the order
under appeal shall come into effect. The appellant shall
also deposit the cost as awarded by the Bar Council of
India, as well as the costs of this appeal.

 The appeal is, therefore, allowed in part. The
appellant shall pay cost to the claimant which we quanitfy
at Rs.5,000/-.
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