T.A. KATHIRU KUNJU Vs. JACOB MATHAI

JUDGEMENT

(1.) The present appeal preferred under Sec. 38 of the Advocates Act, 1961 (for brevity, 'the Act') assails the correctness of the order dated 15.10.2006 passed by the Disciplinary Committee of the Bar Council of India in BCI TR Case No.138 of 2005 whereby the said authority has found the appellant guilty of gross negligence in discharge of his professional service to the client and accordingly imposed the punishment of reprimand with a further stipulation that he shall pay a sum of Rs. 5,000.00 to the Bar Council of India and an equivalent amount to the complainant within two weeks' time from the date of receipt of the order failing which he would stand suspended from practising for a period of six months.

(2.) As the factual 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 200 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 Sec. 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. 75,000.00 (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 Sec. 420 of the Indian Penal Code and accordingly he did so. As is demonstrable, the learned Magistrate directed investigation to be conducted under Sec. 156(3) of the Code of Criminal Procedure. The eventual result of the said investigation has not been brought on record.

(3.) At this stage, the respondent filed a complaint before the Bar Council of Kerala, principally alleging that the cheque that was handed over to the appellant to initiate criminal action against Ramachandran under Sec. 138 of the NI Act was not returned to him. On the basis of complaint received, a disciplinary proceeding was initiated against him and eventually the Disciplinary Committee issued a memo of charges on the appellant. It is seemly to reproduce the same :- "MEMO OF CHARGES