R. JANARDHANA RAO Vs. G. LINGAPPA

JUDGEMENT

(1.) THE appellant who is a practicing advocate has brought in challenge the order passed by the Bar Council of India under the provisions of the Advocates Act, 1961 holding him guilty of professional misconduct and ordering his suspension from practice for a period of two years.

(2.) A few facts leading to this appeal deserve to be noted :

(3.) HAVING heard learned counsel for the parties, it is found that all that the complainant alleged was to the effect that the appellant being an advocate of the other side and after settling the civil dispute between the parties by way of compromise had persuaded the complainant to part with an amount of Rs. 3,000/ - by way of a hand loan. The postdated cheque given by him to the complainant bounced and the appellant did not repay the amount even thereafter despite repeated requests. In our opinion, these type of allegations even taken at the highest, would show that the complainant was persuaded to give a hand loan of Rs. 3,000/ - to the appellant and that amount was not repaid by him. It is pertinent to note that the appellant, while taking the loan from the respondent on any pretext, was not acting in his professional capacity qua the complainant. He was acting as a needy person and persuaded the creditor to give him an amount of Rs. 3,000/ -. If that amount was not paid back, civil remedy was available to the complainant and if the cheque had bounced after the coming into force of section 138 of the Negotiable Instruments Act, 1881, it might have resulted in criminal litigation, but, however, so far as the professional misconduct is concerned, we fail to appreciate as to how the Disciplinary Committee of the State Bar Council held that the appellant qua the complainant had committed any professional misconduct because he had taken a hand loan from the complainant -respondent and not repaid it. It is also to be noted that against the order of the Disciplinary Committee of the Bar Council of India, this Court as early as on 8.11.1989 issued notice and suspended the order of the Bar Council of India. The said order is continuing all throughout and we are informed by learned counsel for the appellant that the appellant is still practicing. By an order dated 9.9.1991, in the presence of learned counsel for the respondent, this Court had directed that the appellant shall take steps to deposit a sum of Rs. 3,000/ - in the Registry of this Court within a period of four weeks for payment to the respondent. Officer report shows that the amount was already deposited as early as on 25.9.1991. Learned counsel for the respondent states that this amount is still not withdrawn. Under these circumstances, in our opinion, the appellant cannot be said to be guilty of any professional misconduct. It is also interesting to note that in the very examination -in -chief before the Disciplinary Committee of the State Bar Council, the complainant stated that if Rs. 3,000/ - is paid to him, he is prepared to withdraw the complaint. We fail to appreciate how the appellant being a practicing advocate did not take up this opportunity to close the chapter as admittedly he had taken the loan and had not repaid the same to the complainant -creditor. That shows an inadvertent conduct on the part of the appellant but still it does not make out any professional misconduct. We would have understood if the appellant was alleged to have misused his position and had taken any money from his own client and had retained that amount. That would have been a clear case of professional misconduct in view of the decision of this Court in the case of N.B. Mirzan v. Disciplinary Committee of the Bar Council of Maharashtra (1972) 4 SCC 412. But this is not one such case. There was no professional obligation or duty of the appellant qua the respondent -complainant who was a third party and who was no better than a third -party creditor qua the appellant.