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Harish Chandra Tiwari v. Baiju .
Factual and Procedural Background
Advocate Harish Chandra Tiwari, enrolled with the Uttar Pradesh Bar Council in 1982, was engaged by Baiju—described by the Disciplinary Committee as “an old, helpless, poor illiterate person”—to pursue a land-acquisition compensation claim. After the court deposited a compensation amount of Rs 8,118, the advocate withdrew the sum on 2-9-1987 but neither informed nor repaid his client. When repeated demands failed, Baiju lodged a disciplinary complaint with the State Bar Council.
The advocate admitted the withdrawal but asserted that he had paid the client after deducting fees. He later produced an affidavit dated 3-8-1988 purporting to show a compromise, which Baiju unequivocally disowned when examined. The matter was transferred, under Section 36-B(2) of the Advocates Act, 1961, to the Bar Council of India, whose Disciplinary Committee found the affidavit forged and held the advocate guilty of misappropriation.
The Disciplinary Committee imposed a three-year suspension. Tiwari appealed to the Supreme Court under Section 38 of the Advocates Act. The Court issued notice of possible enhancement to removal from the roll, heard only the appellant (the State and India Bar Councils did not appear), and proceeded to examine both liability and quantum of punishment.
Legal Issues Presented
- Whether the finding of professional misconduct against the appellant—misappropriation of Rs 8,118 and submission of a forged affidavit—required interference by the Supreme Court.
- Whether the disciplinary sanction of three years’ suspension was proportionate, or whether the appellant’s name should be removed from the roll of advocates.
Arguments of the Parties
Appellant’s Arguments
- He was not liable for misconduct because the compensation amount had allegedly been returned to the client after deducting fees and expenses.
- Alternatively, even if misconduct were established, suspension for three years was adequate; reliance was placed on Prahlad Saran Gupta v. Bar Council of India (1997) 3 SCC 585 and B.R. Mahalkari v. Y.B. Zurange, where lesser sanctions were upheld.
No submissions were made on behalf of the Bar Council of India or the Bar Council of Uttar Pradesh.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prahlad Saran Gupta v. Bar Council of India (1997) 3 SCC 585 | Reprimand was considered sufficient where Rs 1,500 was retained only for one month and later deposited in court. | The Court distinguished the present case as involving prolonged non-payment, larger misconduct, and a forged affidavit; thus, reprimand was inadequate. |
| B.R. Mahalkari v. Y.B. Zurange | Three-year suspension upheld where Rs 1,176 was retained but repaid before disciplinary proceedings began. | The Court found the appellant’s conduct far graver because no repayment was made even after 11 years and a forged document was produced; therefore, suspension was insufficient. |
Court's Reasoning and Analysis
The Supreme Court affirmed the findings of the Bar Council of India that:
- The appellant withdrew Rs 8,118 on behalf of an indigent client and retained it for over eleven years without justification, constituting a serious breach of trust.
- The affidavit dated 3-8-1988, purportedly from Baiju, was forged, aggravating the misconduct by attempting to deceive the disciplinary authority.
In determining sanction, the Court underscored:
- The necessity to maintain public confidence in the legal profession through deterrent penalties, especially for misappropriation of client funds—“one of the gravest” forms of professional misconduct.
- The absence of mitigating factors: the money was never repaid and the misconduct continued unabated even during disciplinary proceedings.
- The advocate’s attempt to subvert the process by fabricating evidence heightened the seriousness.
- Section 38 of the Advocates Act empowers the Court to enhance punishment after giving the advocate an opportunity to be heard, which had been done.
Consequently, the Court found suspension inadequate and held that removal from the roll was the only proportionate response.
Holding and Implications
Held: The appeal is disposed of by removing the appellant’s name from the roll of advocates; he is debarred from practising in any court or before any authority or person in India.
Implications: The decision sends a clear deterrent message that misappropriation of client funds and related fraudulent conduct will attract the severest professional sanction. While it sets no novel legal precedent, it reinforces the disciplinary standards expected of advocates and the Supreme Court’s willingness to enhance penalties where necessary.
K.T Thomas, J.— We are sad that the Disciplinary Committee of the Bar Council of India (for short “the Disciplinary Committee”) despite being the acme statutory body entrusted with the upkeep of the probity of legal profession in India opted to treat a very grave professional misconduct in a comparatively lighter vein. The Disciplinary Committee held an advocate guilty of breach of trust for misappropriating the asset of a “poor” client. But having held so, the Disciplinary Committee has chosen to impose a punishment of suspending the advocate from practice for a period of three years.
2. The delinquent advocate filed this appeal under Section 38 of the Advocates Act, 1961 (for short “the Act”). We told him that in the event of this Court upholding the finding of misconduct he should show cause why the punishment shall not be enhanced to removal of his name from the roll of the Bar Council of the State concerned. Notice on that aspect has been accepted by Mr M.M Kashyap, learned counsel for the appellant.
3. We issued notices to the Bar Council of India and also to the Bar Council of U.P Neither has chosen to enter appearance in this matter and hence we heard learned counsel for the appellant-advocate above.
4. The appellant Harish Chandra Tiwari was enrolled as an advocate with the Bar Council of the State of U.P in May 1982 and has been practising since then, mainly in the courts at Lakhimpur Kheri district in U.P The respondent Baiju engaged the delinquent advocate in a land acquisition case in which the respondent was a claimant for compensation. The Disciplinary Committee has described the respondent as “an old, helpless, poor illiterate person”. Compensation of Rs 8118 for the acquisition of the land of the said Baiju was deposited by the State in the court. The appellant applied for releasing the amount and as per orders of the court he withdrew the said amount on 2-9-1987. But he did not return it to the client to whom it was payable nor did he inform the client about the receipt of the amount. Long thereafter, when the client came to know of it and after failing to get the amount returned by the advocate, a complaint was lodged by him with the Bar Council of the State for initiating suitable disciplinary action against the appellant.
5. On 12-7-1988, the appellant filed a reply to the said complaint before the Bar Council of the State. He admitted having been engaged by the respondent as his counsel in the aforesaid land acquisition case, he also admitted that he had withdrawn a sum of Rs 8118 from the court. But he adopted a defence that he had returned the amount to the client after deducting his fees and expenses.
6. On 3-8-1988, an affidavit purporting to be that of the respondent Baiju was filed by the appellant before the State Bar Council in which it is stated that a compromise had been arrived at between him and his client and that no further action need be taken on the complaint filed by the respondent. The Disciplinary Committee of the State Bar Council was not prepared to act on the said affidavit without verifying it from the client concerned. Hence they summoned the respondent and confronted him with the said affidavit. The respondent totally disowned the said affidavit, repudiated the alleged compromise between him and the appellant and denied having received any amount from the appellant-advocate.
7. The complaint and the proceedings later stood transferred to the Bar Council of India by virtue of Section 36-B(2) of the Act. The Disciplinary Committee after conducting the inquiry, came to the conclusion that the affidavit dated 3-8-1988, purported to have been sworn to by the respondent, was a forged one and that the application appended therewith was fabricated. The Disciplinary Committee observed as follows:
“Thus, the conduct of the respondent and his evasive reply and his evasive vague deposition duly makes out that after taking the cheque from the Land Acquisition Officer in his own name, the respondent has failed to make the payment to the complainant who is an illiterate, poor person and his money has been misappropriated by the respondent-advocate.”
8. In this appeal the appellant first pleaded that he is not liable to be punished at all and then contended alternatively that he has given the money to the client subsequently. But the factual position is so strong against the appellant that he could not show a single circumstance to accept his defence that he had paid the amount to the client. The finding of the Disciplinary Committee that the delinquent advocate
“has withdrawn the compensation of Rs 8118 and has not paid it to the complainant for the last more than 11 years and is thus guilty of wrong professional conduct and has maligned the reputation of the noble profession and has committed breach of trust which an advocate enjoys”,
does not require any interference in this appeal.
9. Now, we have the function to decide as to the quantum of punishment to be awarded to the delinquent appellant-advocate, since we feel that the punishment awarded is not adequate in proportion to the gravity of the misconduct. Section 38 of the Act empowers the Supreme Court to “pass such order (including an order varying the punishment awarded by the Disciplinary Committee of the Bar Council of India) thereon as it deems fit”. The only condition for varying the punishment awarded by the Bar Council of India is that if such variation is to prejudicially affect the appellant he should be given a reasonable opportunity of being heard. In the present appeal we gave notice to the learned counsel for the appellant to show cause why the punishment should not be enhanced to removal from the roll of the Bar Council of the State. Learned counsel for the appellant addressed arguments on that score.
10. Three different punishments are envisaged in Section 35 of the Act: (1) reprimand the advocate; (2) suspend the advocate from practice for such period as it may deem fit; (3) remove the name of the advocate from the State roll of advocates.
11. In determining the punishment to be awarded by the Disciplinary Committee on proven misconduct in each case, the Committee should weigh various factors. One of them is the acute need to cleanse the legal profession from those who are prone to misappropriating the money of the clients. Deterrence is thus a prominent consideration. This is particularly necessary at a time when the legal profession has become crowded as it is today, without there being any effective filtering process at the admission stage. Secondly, to keep up the professional standards it is necessary that nobody should form the impression that once a person is admitted to the legal profession he would be immune to any punitive measures and is free to indulge in nefarious or detestable activities. The only authority which can effectively maintain the probity of the legal profession is the Disciplinary Committee of the Bar Council, either of the State or of India. The proper message which should go to all members of the legal profession is that they are all being watched, regarding their professional activities, through binoculars by the Bar Council of the State as well as by the Bar Council of India and that their Disciplinary Committee would not acquiesce any professional delinquency with flea-bite punishment.
12. Among the different types of misconduct envisaged for a legal practitioner misappropriation of the client's money must be regarded as one of the gravest. In his professional capacity the legal practitioner has to collect money from the client towards expenses of the litigation, or withdraw money from the court payable to the client or take money of the client to be deposited in court. In all such cases, when the money of the client reaches his hand it is a trust. If a public servant misappropriates money he is liable to be punished under the present Prevention of Corruption Act, with imprisonment which shall not be less than one year. He is certain to be dismissed from service. But if an advocate misappropriates money of the client there is no justification in de-escalating the gravity of the misdemeanour. Perhaps the dimension of the gravity of such breach of trust would be mitigated when the misappropriation remained only for a temporary period. There may be justification to award a lesser punishment in a case where the delinquent advocate returned the money before commencing the disciplinary proceedings.
13. In the present case the misappropriation remained unabated even after the disciplinary proceedings commenced and it continued even till now as the delinquent advocate did not care to return even a single pie to the client. The misconduct of the appellant-advocate became more aggravated when he determined to forge an affidavit in the name of his client, which he produced before the Disciplinary Committee in order to defraud his client and to deceive the Disciplinary Committee to believe that he and his client had settled the dispute by making a late payment to his client.
14. By retaining such advocate on the roll of the legal profession it would be unsafe to the profession. The situation in this case thus warrants the punishment of removal of his name from the roll of advocates.
15. Learned counsel for the appellant cited two decisions of this Court in which the punishment awarded has not been escalated to removal from the roll. One is Prahlad Saran Gupta v. Bar Council of India (1997) 3 SCC 585. In that case the finding against the delinquent advocate was that he retained a sum of Rs 1500 without sufficient justification from 4-4-1978 till 2-5-1978 and he deposited the amount in the court on the latter date, without disbursing the same to his client. The said conduct was found by this Court as “not in consonance with the standards of professional ethics expected from a senior member of the profession”. On the said fact situation this Court imposed a punishment of reprimanding the advocate concerned.
16. The other case cited by the learned counsel is B.R Mahalkari v. Y.B Zurange (1997) 11 SCC 109. The findings in that case are that the advocate retained the amount of Rs 1176, though before the commencement of the disciplinary proceedings he sent the said amount to the client. After holding that the advocate is guilty of misconduct this Court upheld the punishment of suspension from practice for a period of three years.
17. The facts in the aforecited decisions would speak for themselves and the distinction from the facts of this case is so glaring that the misconduct of the appellant in the present case is of a far graver dimension. Hence the said two decisions are not of any help to the appellant for mitigation of the quantum of punishment.
18. In the result we dispose of this appeal by imposing the punishment of removal of the name of the appellant from the roll of advocates. He would thus stand debarred from practising in any court or before any authority or person in India.
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