Bhataraju Nageshwara Rao v. The Honble Judges of the Madras High Court and Others.

Das J. Judicature at Madras under section 12 of ·the Indian

Bar Councils Act· (Act XXXVIII of 1926) debarring the appellant from practising as ah advocate for a. period of ·five years.

The material facts are these. T~~ appellant before us is an advocate ordinarily · practismg at Masauli-patam. In Calendar Case No. 1 of 1949 on the file of the Additional First Class Magistrate's Cqurt at Masaiilipatam nin'e · persons · were :charged · with the I offence of cortveying rice from the village to other villages without permits. Accused .Nos. 2 and 4 were not represented by any · advocate. Accused Nos. 1, 3, 5, 6 and 8, all cart-men, were defended by .. the. appel-lant. Accused No.· 7, who initiated the proceedings: out of which ·the present appeal arises and who is; hereinafter referred to as "the petitioner", was de-fended· by · another ad vacate. The case was disposed' •of on the 30th September, · 1949. Accused was Nos. 1, 3, 5 and 6 were acquitted. Accused No. 2 convicted· and sentenced to a fine of Rs. 20 and m default of payment of fine to undergo simple imprisonment for one month. Accused No. 4 and the petitioner, accused'. No. 7; were also convicted and sentenced to pay a fine of Rs. 300/- each and in default of payment of firie to-undergo simple imprisoll1I)ent for six months. · Accused No. 8 was sentenced to pay a fine of Rs. 100/-. and in default of payment of the fine, to simple' imprison-· rnent for three months.· Accused No. 2 paid . the fine· but the other three convicted persons . did ·not. The four convicted persons including the petitioner there-. after .engaged the appellant to prefer an appeal to the Sessions ·Court. ·The appeal was presented before the Sessions Court on the 8th October, 1949 and. on the same-day a. petition was filed on .. behalf of'. accused Nos. 4, 7 (petitioner) and 8 for an order staying the, .realisation of the . fine. . , That application . for . stay 1954 came up. before the learned Sessions Judge· on· the 10th. Bhataraju October, 1949 when .notice was directed . , to· : issue . ta Na'grshwara Rao the Public · Prose~utor. On, the. 11th. ·October,. 1949 ·the ' , .. ll.· Tlui Hon'ble Judge:; learned. Judge passed ·the .following order: . ' qf the Madras

"Suspended pending disposal ·of this :petition. 'High Court and Others ---.' Call on .14. 10''.

On the 14th October, 1949 •the following. further order Das J. was passed :-

"Execution . of sentences ·suspended· ·'till disposal of appeal".

The. appeal was posted ·for .hearing on . the 25th November, 1949 and was adjourned from time · to time.

Eventually, it was .finally heard on the · 13th July, 1950 wl).en the appeal.was allowed 'and the conviction and sentences of all the appellants were set .·.aside .. · On the 25th January, 1951 . the petitioner caused. a regis-tered notice (Ex. A/2) to be sent. to the appellant alleging that on the 11th October, 1949 the appellant had represented to him that the Court had refused to suspend the 'sentences . and that ·unless the amount· of fine was deposited the petitioner would be sent to jail.

It was further alleged . that on such representation the petitioner had on that day paid to the appellant . · a sum of Rs. 300 for which the . appellant·· had passed to the petitioner a chit (Ex. A/l.) under his own signa-ture acknowledging receipt of the said sum. The chit (Ex. A/1) which is addressed to the petitioner runs as follows:-

"This day, you have paid to ·me a sum of Rs. 300 (three hundred rupees only)".

It is signed by the appellant and below his signature appears the date 11th October 1949 and the time 5-15 P.M. is also mentioned below the signature. The allega-tion in the registered notice further was that the appellant had concealed from the petitioner the · fact that the order for payment of fine had been suspended until the hearing of the appeal and also that the ap-peal had eventually been allowed. . The notice. ended with a threat that if the appellant failed. to rehlrn the sum of Rs. 300 together with interest . at. . 12 per cent.

per annum . from the 11th · October 1949 up ;to date of

1954 payment the petitioner would be constrain~d, · in addi-Bhataraju tion to such other proceedings as he . may be advised Nageshwara Rao to take for recovery of the said amount, to complain

v.

"[he Hon'ble Judges against the appellant and his unprofessional conduct

of the Madras to the High Court and the Bar Council. This notice High Court and was received by the appellant on the 12th February

Others

J. 1951 and on the next day, 13th February 1951, the Das appellant issued three registered notices Exs. A/3, A/4

and A/5 to the petitioner. In Ex. A/5 the appellant complained that the petitioner had been evading pay-ment of the agreed fee of Rs. 150 and on firm demand having been made by the appellant on the 21st Jan-uary 1951 for payment of such fee before the 25th January 1951 the petitioner had issued the registered notice Ex. A/2. In Ex. A/4 the appellant alleged that the petitioner instructed the appellant to file a stay I petition as the · petitioner was unable to pay the fine and that the appellant filed the petition accordingly and obtained a stay order about which the petitioner was fully aware. In those circumstances the allega-tions contained in the petitioner's notice Ex. A/2 were false ·and highly defamatory. He further alleged that the petitioner was also present in Court on the y 13th July 1950 when the appeal was allowed. In the circumstances, there was no need for ·the petitioner to pay any money to the appellant for the purpose of paying the fine. The appellant called upon the petitioner to withdraw the allegations and tender an unqualified apology immediately. In Ex. A/3 the appellant stated that the petitioner had come to him on the 6th October 1949 to engage him as his advocate for filing an appeal. Seeing that the appellant· was then pressed for money for payinent of an instalment of a loan No. 616 to the Land Mortgage Bank, Pedana; the petitioner volunteered to arrange for a loan of Rs. 300 for the appellant at Pedana. and asked him to give a chit in his favour and to send the appellant's derk with the petitioner. The petitioner did not, how-ever, succeed in arranging for any money but the chit Ex. A/1 remained with him. There was a denial that there was any consideration for the chit Ex. A/I. On the 7th March 1951 the petitioner sent a reply generally. denying the allegations contained in the three several Jg54 notices sent by the appellant to the petitioner. That Bhataraju reply was received by the appellant on the 13th March Nageshwara Rao 1951 and on the 14th March 1951 the appellant issued v. The Hon'ble Judg.s a further rejoinder Ex. A/7 denying the allegations qfThe Madras in the petitioner's reply and stating that the state-High Court and Others ments in his three notices were true. It was further J• alleged that when the petitioner failed to supply the Das amount mentioned in the chit Ex. A/1 the appellant asked him to return the chit but the petitioner said that the chit was missing and that he would search for it and return it subsequently and so saying the petitioner gave the appellant on the 16th October 1949 a hand letter (Ex. D /8) admitting that the petitioner was unable to supply the amount of Rs. 300 mentioned in the said chit as promised. The petitioner did not send any reply to this letter in spite of the fact that the appellant had therein referred to a hand letter (Ex. D/8) dated the 16th October 1949 which totally nullified the value of the chit Ex. A/I.

The petitioner then on the 27th March, 1951 sent a petition to the High Court making a complaint against the appellant of professional misconduct and praying that the Hon'ble High Court might be pleased to order an enquiry into the allegations made in his com-plaint and to take such action against the appellant as was necessary and expedient in the circumstances of the case. Along with the petition were submitted a photograph of the chit Ex. A/1 and copies of the registered correspondence that passed between the petitioner and the appellant. Even in this pet1t10n the petitioner did not refer to the hand letter (Ex.

D/8) of the 16th October 1949 and did not specifically deny having written the same. Upon the presenta-tion of the petition the appellant submitted a written explanation before the High Court. The High Court, under section 10 of the Indian Bar Councils Act, re-ferred the matter to the District Judge to enquire in-to the allegations made in the petition and to submit a repo1t.

The District Judge issued a notice to the appellant setting forth the following charges :-

1954 "l. That you have · suppressed · fraudulently the Bhataraju order 0£ the Additional Sessions Judge, Krishna at Nages_hwara ·RdO. Masaulipatam, suspending payment of fine of Rs. · 300

v. 180 1949 The Hon'ble Jndges and made in Crl.. M. P. No. of in C:A. No. 82

ofthtMadras of 1949 preferred against the conv1Ct1on and sentence High Court and passed by the Additional First Class Magistrate,

Others)

J. Bandar, in C.C. No. 1 of 1949, on his file, against the pas petitioner, who is the seventh accused therein ;

¶2That you, having fraudulently suppressed the above stated fact, have represented to the peti-tioner that the amount of fine of Rs. 300 had to be deposited into Court on pain of the pet1t10ner being sent to jail and received the said sum of Rs. 300 from him and passed a· receipt in his favour for the same; 3. That you, even though the above said C.A. No. I 82 of 1949 on the file of the Additional Sessions Judge, Krishna at Masaulipatam was allowed by the judg-ment dated 13-7-1950, having all knowledge about it did not inform the petitioner that the said C.A. No. 82 of 1949 was disposed of, and later on informed him that it was dismissed, and the conviction and sen-tence were confirmed ; y 4. That you, therefore, wrongfully withheld the amount of Rs. 300 belonging to the petitioner with-out depositing into Court as represented by you and also without refunding it to the petitioner even after the said appeal was allowed in spite of repeated re-quests and demands made by him, and 5. That you have falsely set up a plea of not hav-ing received the said sum of Rs. 300 from the peti-tioner, for which you have passed a receipt in his favour, and later on set up that you wanted to borrow the said amount from him during the subsistence of the relationship of advocate and client, which (borrow-ing from a client) itself is prohibited by law".

The petitioner examined himself (P.\V. 1) and his brother Potharaju (P.W. 2) as his witnesses in sup-port of the allegations in the petition. The appellant examined himself (R. W. 1) and his clerk D Venkata-rangam (R. W. 2), Kameswararao, the secertary of the Vadlamannadu Co-operative Land Mortgage Bank at Pedana (R.W. 3) and Venktadri, clerk of an advocate (R.W. 4) in support of his defence. · · · Bhataraju

On a consideration of 'the entire evidence the learn-N ageshwara Rao ed District Judge found that the testimony · of the v. The Hon' bit Judges petitioner and his brother was not credible and ac-of the Madras ceptable and that there was' no · reason. to reject the High Court and Others ._ testimony of the appellant and his clerk and other

witnesses and he came to the conclusion that it had DasJ; not been satisfactorily proved that the ·appellant' was guilty of any of the charges· framed against him. The District Judge sent a report accordingly.

The matter was placed before a Special Bench of the Madras High Court. The Special Bench had no hesitation in agreeing with the findings of the learned r District Judge on charges 1, 2 and 3. In their opinion

much reliance could not be placed on the veracity of the complainant himself. The High Court, in agree-ment with the learned District Judge, held that the appellant was not guilty of the first three · charges.

Coming to the last two charges the learned Judges were struck by several facts, namely, (i) the passing of two receipts for two sums of money each of Rs. 300 which were identical with the amount of fine imposed ...., on each of the accused Nos. 4 and 7 (petitioner) and

(ii) the date of payment, namely, the 11th October 1949 on which date the petitioner and the fourth ac-cused had to deposit the. fine. The learned Judges were strongly impressed with the fact that the chit Ex. A/1 had been allowed to remain with the peti-tioner. The High Court also noted that if the arrange-ment was that the appellant's clerk would pass a formal stamped receipt after getting the money there was no necessity to issue an informal receipt in favour of the petitioner in advance. The learned Judges fur-ther pointed out that in none of the three notices dated the 13th February 1951 any reference had been made by the appellant to the hand letter (Ex. D/8) dated the 16th· October 1949. The High · Court con-cluded that the failure to mention this hand letter in the earliest reply by the appellant cast considerable doubt on the genuineness of the document and conse-quently the Court could not act on the basis that it 1954 contained a true statement of facts admitted by the Y Bhataraju pet1t1oner. The High Court also referred to several Nageskwara Rao other minor points suggesting the improbability of

v. the appellant's story. The High Court held that the Th< Hon'ble Judges

of the Madras appellant had received a sum of Rs. 300 from the High Court and petitioner on the 11th October 1949 as acknowledged

Others

by the appellant in the chit Ex. A/1. The High Court _, 'r. DasJ. accordingly held that charges Nos. 4 and 5 had been

proved against the appellant and passed orders against .f the appellant debarring him from practising as an advocate for five years. The appellant has now ·pre-ferred this appeal after having obtained special leave. from this Court.

We have been taken through the evidence by learn-ed advocates appearing on both sides. It appears to us that while there are some facts which cast some I doubt on the version of the appellant there are other material facts completely overlooked by the l;:ligh Court which nevertheless have a material bearing""' on the truthfulness or falsity of the complainant's story. It is true that the appellant did not refer to the hand letter (Ex. D /8) in his replies Exs. A/3, A/4 and A/5 to the petitioner's letter Ex. A/2, but the appel-y !ant did refer to it in his rejoinder Ex. A/7' of the 14th March 1951. It is significant that the petitioner did not send any reply to this last rejoinder and deny the r allegations definitely made by the appellant. It is further significant that the petitioner did not deny the genuineness of the hand letter Ex. D /8 even in his petition. In his evidence the petitioner admits the signature on the hand letter to be his own but states that it must have been made out by the appellant on a blank paper on which he had induced the petitioner to put his signature on the representation that the same would be used as a Vakalatnama. It is very diffi-cult to accept this story because the petitioner knew from his experience as an accused in thf trial Court that no Vakalatnama was required in a criminal case. Nor has any of the other appellants been produ~ed as a witness to say that any such signature was taken from any of them on blank paper. Further, the peti- ,i.,. tioner was present in Court on the 11th October when the interim stay order was made. Ex. A/1 bears the hour 5-15 P.M. below the signature of the appellant Bhatara;u which shows that that chit came into existence after N' ageshwarM Rao v. court hours. It is utterly impossible to believe that the The Hon' bl< Judgs petitioner would deposit Rs. 300 with his new advo-of the Madras High Court and cate in spite of the fact that in the earlier part of the Others day the interim order for stay had been made. It is Das]. also significant that accused No. 4 who is also alleged to have paid Rs. 300 to the appellant for a _.,. similar purpose has not been called as a witness to

corroborate the evidence of the petitioner and his brother. The question of the ability of the petitioner to advance Rs. 300 is one of great importance in this case. The petitioner is not a man of means. He alleged that he had raised the sum of Rs. 300 by sell-ing some miscellaneous gold. No goldsmith or shroff was called to produce his books and give evidence m corroboration of the petitioner and his brother. In-deed, the petitioner could not even mention the name of any shroff to whom he is supposed to have sold his gold. The High Court completely overlooked this aspect of the matter and in the absence of satisfac~ tory evidence showing that the petitioner was in a position to pay the sum of Rs. 300 it will be extreme-1 y risky to hold that the fact of payment of Rs. 300 by the petitioner to the appellant has been proved only because there are some weaknesses in the appel-lant's story. The appellant's story that he required Rs. 600 to be paid to the Land Mortgage Bank is supported by the secretary of the Land Mortgage Bank (R.W. 3) who stated i:hat the appellant had informed him that he had raised Rs. 300 only and that a per-son who had promised to arrange for a loan of Rs.

300 had failed to do so and that the appellant had asked his advice as to what he was to do. The " secretary then told the appellant that as he had made

an excess payment in 1948 towards and on account of the principal it would be enough if he paid the amount of Rs. 377/9/- which the appellant had. It is significant that the Bank's records show that the appellant had paid only-Rs. 377/9/- into the Bank on the 4th November, 1949. If the petitioner had paid 12--89 S. C. India/59

1954 Rs. 300 to the appellant there would have been no Bhataraju reason why the appellant should not have paid the Nagesfzwara Rao entire Rs. 600 towards his liability to the Bank. The

v.

The Hon'ble Judges learned District Judge who had the advantage of see-

of the Madras ing the witnesses and hearing the evidence disbelieved High Court and the evidence of the petitioner and his brother and

Others

we see no compelling reason to take a different view Das]. of it. On the facts and circumstances of this case we

think that charges 4 and 5 have not been brought home to the appellant or, at any rate, the appellant is entitled to the benefit of the doubt. In the cir-cumstances, we hold that the order passed by the High Court should be reversed and we direct that the complaint against the appellant do stand dismissed as not proved.

Before parting with this appeal we desire to say that it appears to us that it was wholly wrong and inappropriate for the appellant to have made the Honourable Judges of the Madras High Court res-pondents to this appeal. It appears that in some cases involving contempt of Court the Honourable Judges have been made parties. It is not necessary for us to express any opinion on this occasion as to the pro-priety of that procedure in contempt cases but we are clearly of the opinion that in· an appeal arising out of a proceeding under the Bar Councils Act the appro-priate parties should be the advocate concerned, the complainant, if any, the Bar Council or the secretary thereof and the Advocate-General of the State con-cerned to whom notices have to be issued u,,;der sec-tion 12(3) of the Indian Bar Councils Act.

Appeal allowed.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 146 of 1954.

Appeal by Special Leave from the Judgment and Order dated the 17th day of December, 1952, of the High Court of Judicature at Madras in Referred Case No. 45 of 1952 arising out of the Report dated the 27th day of March, .1951, of the Court of District Judge, Krishna in C.M.P; No. 123 of 1951.

S. P. Sinha, (K. R. Chaudhary and Sardar Baha-dur, with him), for the appellant .

.,.:; R. Ganapathy Iyer and P. G. Gokhale, for respon-

dent No. L

'.954 T. Satyanarayana and P. G. Gokhale, for re'spon· ·Bhataraju dent No. 3 •.

N ageshwara Rao 1954.' December 3. The Judgment of the Court

v.

The· !/qn'bleJudgts was delivered by

of t!M Madras High. Court and DAs J.'-This is an appeal by special \eave frorri an

Qtlurs order made by a Special Bench of the High Court of