Civil Appeal No 1019 of 1978
Appeal Under article 38 of the from the Order 1007 dated the 4th February 1978 of the Disciplinary Committee of the Bar Council of India in DC Appeal No 6 of 1976
P Gobindan Nair and B Parthasarthi for the Appellant
VA Bobde for Respondent
TS Krishnamurthi Iyer and A Subba Rao for Respondent
The Judgment of the Court was delivered by DESAI J
The appellant was ill advised in filing this appeal because the more the learned counsel appearing for the appellant dived deep into a veritable dustbin of facts the further hearing caused deep anguish more on account of the realisation as to how occasionally and we are happy to record very occasionally a member of the noble profession sinks to the lowest and to vindicate his actions tries to clutch at the highest
One M Ram Mohan Rao who was described as a senior of appellant M Veerabhadra Rao has been a practising advocate at Hyderabad
Appellant M Veerabhadra Rao was enrolled as an advocate in the year 1961 as stated in his evidence
He joined the chamber of his senior and at the relevant time he was working in the chamber of his senior
Shri M Ram Mohan Rao was a tenant of the premises bearing Municipal No 3242 situated at Rashtrapathi Road Kingsway Secunderabad of which respondent Tek Chand son of Lala Moti Ram was the owner
It is alleged that the respondent his wife Mohini and son Subhash Chandra sold and conveyed the house in question by a deed of conveyance in favour of Premlata wife of Sohan Lal Saloot and daughter of Hustimal Jain for a consideration of Rs 65000
As the sale was for a consideration of more than 50000 the vendor was required to produce an Income tax Clearance Certificate as required by Sec 230 of the Income tax Act 1962 before the sale deed could be registered
It may be mentioned that sometime before the alleged transaction of sale a suit was filed by respondent Tek Chand against Shri M Ram Mohan Rao the tenant for eviction on the ground of non payment of rent etc
This suit had ended in a decree and at the relevant time an appeal preferred by Shri M Ram Mohan Rao was pending
To resume the narrative Tek Chand had already obtained the necessary Income tax clearance certificate on July 5 1972
When the sale deed was presented for registration the Registrar of Conveyances asked for the Income tax clearance certificate and respondent Tek Chand said that on payment of the 1008 full consideration the same will be produced
From thereon the distressing events leading to the present appeal started Respondent Tek Chand filed a complaint No 14 of 1974 under Sec
35 of the before the Bar Council of the State of Andhra Pradesh alleging that one Mr M Ram Mohan Rao advocate was a tenant of a house situated at Rashtrapathi Road Secunderabad of which he was the owner
This house was agreed to be sold for Rs 65000 to Premlata daughter of Shri Hastimal Jain and Rs 10000 was paid as earnest money
The sale deed was to be completed within a period of three months on the vendee paying the balance of consideration of Rs 55000
The vendee did not pay the amount and the respondent alleged that he had cancelled the agreement for sale
It was further alleged that as the consideration for sale was exceeding Rs 50000 the sale deed cannot be registered unless an Income tax clearance certificate is produced but as the balance of consideration was not paid agreement to sell the house was cancelled
However as the vendee Premlata wanted to grab the house without paying the balance of consideration in order to get the sale deed registered it was decided to get the Income tax clearance certificate and with this end in view an application purporting to be in the name of the respondent with his signature forged thereon bearing the date October 31 1972 and with an incorrect address was prepared
As an affidavit is necessary in support of the application the same was prepared on a stamp paper of Rs 2 with the signature of respondent Tek Chand forged thereon
This affidavit was attested by the appellant as he is an advocate authorised to attest affidavits
On the strength of the forged documents an Income tax clearance certificate was obtained in the name of respondent and the sale deed was got registered
It was alleged that the signature of respondent Tek Chand was attested by the present appellant the junior of Mr M Ram Mohan Rao on being paid Rs 300 through one Mulchand Munshi of Lalchand who is the uncle of the father of Premlata the vendee
It was specifically averred that respondent Tek Chand neither signed the application for income tax clearance certificate nor swore the affidavit
It was alleged that someone impersonated Tek Chand and this must be known to the appellant because he knew respondent Tek Chand for many years prior to the attestation of affidavit
It was alleged that a suit had been filed by Tek Chand against Mr M Ram Mohan Rao for recovering the arrears of rent in the amount of Rs 17000 and obviously to cause damage to Tek Chand appellant the junior of Mr M Ram Mohan Rao attested a forged signature on the affidavit
The application 1009 with the affidavit annexed was submitted to the Income tax department on the same day and the Income tax clearance certificate was procured through Mulchand which was produced in the office of Sub Registrar Secunderabad
Thus the vendee Premlata got the sale deed registered on the strength of forged documents to which the appellant was a party and that wrongful loss was caused to the respondent in the amount of Rs 135000 which was facilitated by the appellant
It was alleged that this constitutes a very serious professional misconduct and necessary enquiry be made and appropriate action be taken
The appellant appeared and filed a counter affidavit denying all the allegations It was specifically admitted that the affidavit
on the strength of which the Income tax clearance certificate was obtained on November 2 1972 was attested by him
As the decision largely turns upon the explanation offered by the appellant his positive case may be extracted Says he Either on 311072 or on 11172 the complainant Tek Chand came to this respondent with an affidavit purporting to bear his signature and requested this respondent to attest the same
The Complainant admitted that the signature appearing on the affidavit as that of his and therefore this respondent attested the same
On this admission of the complainant in person to this respondent in the office of Mr M Ram Mohan Rao Advocate this respondent attested the same in good faith and believing the representations made by the Complainant
This respondent was aware that even prior to the date of attestation of the affidavit the Complainant had issued a notice to this Respondent s then Senior Shri M Ram Mohan Rao attorning him to pay rents to Premlata as the Complainant had sold the house to the said Premlata
It is therefore emphatically denied that this respondent received Rs 300 from Moolchand and he attested a forged affidavit as alleged
It is only on the admission and representation made by the Complainant himself in person that this respondent attested the affidavit in good faith
 The State Bar Council referred the complaint to its Disciplinary Committee
The complainant respondent examined himself and he examined one Mohan Lal as his witness
He produced four documents marked Ext
A 1 to A 4 The important document is Ext
A 1 the affidavit dated October 31 1972 purporting to be 1010 of respondent Tek Chand
exhibit A 2 is the application addressed to the Income tax Officer for issuing income tax clearance certificate
exhibit A 3 is the reply of Income tax Officer dated March 8 1973 to the inquiry made by the respondent
exhibit A 4 is another letter from the Income tax Officer dated March 20 1973 to the respondent
exhibit A 1 a and exhibit A 1 b are the disputed signatures of the respondent on the affidavit and the application respectively
The appellant himself gave evidence and examined Mr N Satyanarayana advocate who was another junior of Mr M Ram Mohan Rao as his witness and produced documents marked Ext
B 1 to B 4
The Disciplinary Committee of the State Bar Council  State Committee  for short to whom the complaint was referred for disposal after minutely analysing the oral and documentary evidence rejected the evidence of PW 2 Mohan Lal witness examined by the complainant and RW 2 Mr N Satyanarayana advocate examined as witness by the appellant observing that both were partisan on witnesses and no credence can be given to their evidence
The Committee also rejected the allegation that the appellant was paid Rs 300 by Mr Hastimal for attesting affidavit exhibit A 1 observing that there was no cogent and unimpeachable evidence in support of this allegation
The Committee further held that complainant Tek Chand never approached the appellant with exhibit A 1 and therefore the explanation of the appellant that he attested the affidavit on the statement made by the respondent that it bears his signature cannot be accepted
The Committee concluded that the attestation of exhibit A 1 amounts to witnessing the fact that the deponent affirmed the truthfulness and genuineness of what was stated in the affidavit and signed in his presence but this would be untrue without the presence of deponent Tek Chand and therefore the endorsement becomes false and rendered the attestation invalid
The Committee concluded that the appellant advocate attested exhibit A 1 knowing that the respondent complainant had not sworn the affidavit in his presence nor was it signed in his presence by the respondent and therefore this act of attestation of the affidavit giving a misleading information is improper and comes within the mischief of professional misconduct and contrary to the norms of the professional etiquette The State Committee also concluded that on account of this misconduct on the part of the appellant income tax clearance certificate was obtained and therefore the appellant was guilty of professional misconduct
Having found the appellant guilty of serious misconduct namely attesting an affi 1011 davit which appears to be a forged one and which was used to obtain an unfair advantage by Premlata by obtaining Income tax clearance certificate on the strength of exhibit A 1 which did not appear to be genuine to the Committee and which caused wrongful loss to the respondent the Committee developed cold feet and imposed a ludicrously paltry punishment of reprimand which is no punishment stricto sensu
Emboldened by this timid performance of the Disciplinary Committee of the State Bar Council the appellant filed DC Appeal No 6 of 1976 before the Disciplinary Committee of the Bar Council of India
 Appellate Committee  for short
The Appellate Committee held that the explanation of the appellant that he attested the affidavit on the strength of the statement made to him by the respondent that the affidavit bears his signature and that there was nothing improper in attesting the affidavit on the acknowledgement made by the deponent about his signature cannot be accepted because the affidavit in question categorically states that the party deponent put his signature before the attesting advocate when it was common ground that it was not so done and the affirmation by the advocate clearly amounts to a false statement
The Appellate Committee then became fictitious and observed that it would take a serious and strict view of the matter and hold that an advocate should not be a party to such an irregular procedure amounting to a false declaration by him
After so observing the Committee affirmed the order made by the State Committee imposing the punishment of reprimand and conveying a warning to the appellant that he should be careful in future in such matters
The Appellate Committee then proceeded to accept one contention on behalf of the learned advocate appearing for the appellant and expunged the observation of the State Committee that the appellant had not attested Ext
A 1 in the presence of the complainant and that his act of the appellant was improper and comes within the mischief of profession misconduct and contrary to the norms of professional etiquette on the ground that these observations were uncalled for especially in view of the fact that the Committee disbelieved the evidence of PW 2 on the question of payment of Rs 300 and presentation of affidavit by Mool Chand
It would be presently pointed out that the expunging of those remarks was uncalled for and betrays total non application of mind while disposing of the appeal
Undaunted by two failures but presumably encouraged by the 1012 ludicrous punishment the appellant filed this appeal in this Court under Sec
38 of the 
By the order made on August 7 1978 the appeal was admitted and directed to be included in the list of short matters
The respondent on being served appeared and filed cross objections inter alia contending that there was a conspiracy between M Ram Mohan Rao senior of the present appellant and vendee Premlata as well as Hustimal to cause wrongful loss to the respondent
To this conspiracy even the appellant was a party
M Ram Mohan Rao who was a tenant of the house which Premlata claims to have purchased was under a decree of eviction and in order to thwart it he hatched the plot to which the appellant lent his assistance by purchasing two stamp papers of Rs 2 each in the name of the respondent and after drawing up a false affidavit in the name of the respondent a signature was forged thereon to which the appellant lent his attestation so as to give it an appearance that the forged signature was a genuine signature of the respondent knowing full well that on the strength of this forged affidavit an income tax clearance certificate was to be obtained which would facilitate registration of the sale deed which Premlata claimed to have taken and which was objected to by the respondent
It was alleged that for rendering such service he charged and accepted Rs 300 in the presence of PW 2 witness Mohan Lal
It was alleged that this forged affidavit was submitted to the Income tax Officer on the strength of which an income tax clearance certificate was obtained which enabled M Ram Mohan Rao and Premlata to get registration of the sale deed
The respondent prayed for enhancement of punishment imposed upon the appellant
The appellant filed his rejoinder to the cross objections filed by the respondents Inter alia contending that in the absence of any provision in the  the respondent is not entitled to file cross objections
It was submitted that if the respondent was aggrieved by the order of the State Committee or the Appellate Committee it was open to him to prefer an appeal but that having not been done the cross objections cannot be entertained
The appeal came up for hearing on September 23 1980 before a Bench comprising AC Gupta and AP Sen JJ
After hearing Mr Vepa P Sarthay learned counsel appearing for the appellant the Court proceeded to hear Mr VA Bobde who appeared amicus curie for the respondent
After hearing both the sides the Court made the following order 1013 Issue notice to the appellant in this appeal as to why having regard to the findings recorded by the State Bar Council and the other facts and circumstances of the case the punishment awarded against him should not be enhanced
This appeal will be heard along with cross objection filed by the respondent
CA No 101978 to be treated as PH Mr Govindan Nair learned counsel who appeared for the appellant submitted that the facts found both by the State Committee and the Appellate Committee would not constitute professional misconduct for which the appellant may incur a penalty
Before we proceed to examine what constitutes professional misconduct we may briefly point out the facts concurrently found by the State Committee and the Appellate Committee
After extensively reproducing the evidence led in the case and after rejecting the evidence of PW 2 Mohan Lal a witness examined by the respondent and RW 2 NSatyanarayana a witness examined by the appellant the State Committee concluded that the affidavit Ext
A 1 was not taken to the appellant by the respondent nor did he admit his signature on the affidavit Ext
A 1 in the presence of the appellant
The affidavit Ext
A 1 contains certain obviously incorrect statements in that even though respondent was aged more than 60 years his age was shown to be 45 years in Ext
A 1 and that the address of the respondent shown in the affidavit on the date of the affidavit was incorrect because he was not residing in the House No 3242 Rashtrapathi Road Secunderabad as set out in Ext
A 1 but has residing at Red Hills Hyderabad
It was also found that the respondent did not go to the office of advocate Shri M Ram Mohan Rao where the appellant was at the relevant time sitting for getting Ext
A 1 attested
It was noticed that the appellant admitted that Exts
a and A 1 b were not signed by the respondent in the presence of the appellant and that he attested the same on the statement of the respondent complainant
It was found as a fact that the affidavit bears the date October 31 1972 and was filed in the Income tax department on the same date while the attestation of the appellant thereon bears the date November 1 1972
It was concluded that either without the presence of the respondent or his so called admission of his signature the appellant should not have attested his signature on an affidavit and therefore the attestation was invalid
And that this constitutes professional misconduct
1014 The Appellate Committee in a cryptic albeit loconic order bravity being its only merit broadly agreed with the findings recorded by the State Committee observing that the affidavit on its own face would tend to show that the attestation was done after the signatory had put his signature in the presence of the appellant and thereafter the appellant attested the signature while it is admitted by the appellant that the signature was not put by the respondent on the affidavit in his presence but merely stated that he had signed the same
Therefore according to the Appellate Committee the affirmation of the same by the appellant clearly amounts to a false statement and that the appellant was a party to a false declaration and therefore he is guilty of professional misconduct as found by the State Committee
Curiously thereafter the Appellate Committee for reasons which are neither comprehensible nor convincing deleted the observation made by the State Committee which was clearly borne out by the evidence observing that the finding was uncalled for in view of the fact that the State Committee disbelieved the evidence of PW 2 on the question of payment of Rs 300 and presentation of the affidavit by Mool Chand  It has been very difficult for us to appreciate this disjointed reasoning
However it is crystal clear that both the fact finding authorities concurrently agreed that the respondent did not put his signature on Ext
A 1 in the presence of the appellant and yet the appellant by contributing his attestation to the affidavit made a declaration that the signature was of the appellant made in his presence and admittedly that not being true the appellant was guilty of misconduct
Does this constitute professional misconduct is the question The narrow question that falls for our consideration in this case is whether the appellant an enrolled advocate who was authorised to attest an affidavit that can be used in civil or criminal proceedings committed impropriety in attesting an affidavit which attestation would imply that the deponent subscribed his signature to the affidavit in his presence after taking the requisite oath that ought to be administered to him because there is no dispute that an affidavit is a sworn statement of the deponent
The expression affidavit  has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before an authorised Magistrate or officer
Affidavit has been defined in sub cl
3 of Sec 3 of the to include affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing  The essential 1015 ingredients of an affidavit are that the statements or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation
The responsibility for making precise and accurate statements in affidavit were emphasised by this Court in Krishan Chander Nayar vs The Chairman Central Tractor Organisation and Ors
The part or the role assigned to the person entitled to administer oath is no less sancrosanct
Section 3 of the specifies persons on whom the power to administer oath or record affirmation is conferred
It inter alia includes any Court Judge Magistrate or person who may administer oaths and affirmations for the purpose of affidavits if empowered in this behalf a by the High Court in respect of affidavits for the purpose of judicial proceedings or b by the State Government in respect of other affidavits  The Schedule to the Act prescribes forms of oaths or affirmation that is required to be administered to the party seeking to make his own affidavit
Rule 40 of the Civil Rules of Practice framed by the Andhra Pradesh High Court provides that the officer before whom an affidavit is taken shall state the date on which and the place where the same is taken and sign his name and description at the end as in Form No 14 otherwise the same shall not be filed or read in any matter without the leave of the Court  Form No 14  prescribes the form of affidavit on solemn affirmation
It requires a solemn affirmation or oath before the person authorised to administer the same and then at the foot of which the signature of the deponent must appear and below that the officer entitled to administer oath must put his signature in token of both that he administered the oath and that deponent signed in his presence and by his attestation he has subscribed to both the aspects
Rule 34 of the aforementioned rules sets out officers authorised to administer oath for the purpose of affidavits and an Advocate or Pleader other than the Advocate or Pleader who has been engaged in such a proceeding have been included in the list of officers authorised to administer oath
The appellant as an advocate enrolled by the State Bar Council was thus authorised to administer oath for the purpose of an affidavit and attest the same
This was not disputed before us
It is not in dispute that Ext
A 1 is an affidavit purporting to have been made by the respondent in the presence of the appellant 1016 and attested by him
The appellant admits in no uncertain terms that Ext
A 1 bears his attestation
If the matter were to rest here it would mean that the respondent appeared before the appellant with his affidavit
Thereupon the appellant administered oath to him and on the respondent taking the oath and affirming the truth of the statement made in the affidavit put his signature on the affidavit in the presence of the appellant and then the appellant subscribed his signature to the affidavit in token of his having administered the oath and the respondent having affixed his signature in his presence
The content of the affidavit clearly spells out the purpose for which the affidavit was being made namely for obtaining an income tax clearance certificate which the respondent as vendor had to produce before the Registrar of Conveyances acting under the Indian Registration Act for the purpose of registering the sale deed which the respondent was alleged to have executed in favour of Smt
Premlata
To narrow down the area of controversy it may be mentioned that the appellant admits that the affidavit exhibit A 1 is attested by him
He further concedes that the respondent did not affix his signature in his presence on the affidavit Ext
A 1 but admitted the same in his presence whereupon he attested the same
This statement of the appellant clearly shows dereliction of duty in two aspects i that he did not administer any oath or did not call up the respondent to make an affirmation though Ext
A 1 purports to be an affidavit and secondly the respondent did not subscribe his signature in the presence of the appellant and the appellant merely acted on an alleged statement of the respondent that the affidavit bears his signature
The enquiry therefore in this case is a very narrow one
It centres round whether the respondent personally appeared before the appellant when he was sitting in the office of his senior M Ram Mohan Rao and produced the affidavit Ext
A 1 for attestation by the appellant The State Committee clearly recorded an unambiguous finding which we consider wholly incontrovertible in the facts of this case that the appellant never appeared before the respondent either on October 31 1972 or November 1 1972
There are tell tale circumstances on record which would clearly render this finding unassailable
The appellant was the junior of M Ram Mohan Rao who claimed to be occupying the very house as tenant of the respondent which was the subject matter of the disputed sale and the respondent had filed a suit against M Ram Mohan Rao for eviction on the ground of non payment of rent in the aggregate amount of over Rs 11000 and the suit had already ended in a decree in favour of the respondent against M Ram Mohan Rao and the matter was pending in 1017 appeal
There was thus no love lost between M Ram Mohan Rao and the respondent
In this back ground the respondent would never think of going to the office of M Ram Mohan Rao to contact his junior the present appellant for the purpose of swearing the affidavit
If the Oath Commissioners were a scarce commodity one may have to go in search of a rare commodity but the relevant rules 34 and 40 clearly show that every advocate was authorised to administer oath for the purpose of affidavit and attest the same
Secondly the affidavit was for the purpose of obtaining an income tax clearance certificate
Now there is unimpeachable evidence on record that the respondent had already obtained an income tax clearance certificate way back on July 5 1972
In his examination in chief in the course of disciplinary proceedings the respondent stated that on July 5 1972 he obtained income tax clearance certificate from the income tax officer
There is no cross examination on this point
It clearly amounts to an acceptance of the fact that way back on July 5 1972 the respondent had already obtained an income tax clearance certificate
Therefore it is not necessary for him to obtain any fresh income tax clearance certificate
He had therefore no reason to approach the appellant for attesting the affidavit for the avowed object of obtaining an income tax clearance certificate
Add to this the circumstance that the respondent at the relevant time was not staying at House No 3242 Rashtrapathi Road Secunderabad and this is not in dispute
If he was not staying at Rashtrapathi Road Secunderabad the Income tax Officer J Ward Circle III Hyderabad to whom the application appears to have been addressed for income tax clearance certificate on October 31 1972 would have no jurisdiction to entertain the application
The appellant at the relevant time was staying at Red Hills Hyderabad
It was obviously not necessary for him to approach the appellant at such a long distance for attesting an affidavit more so in view of the fact that he had already obtained an income tax clearance certificate
There is also a letter on record from the Income tax Officer J Ward Circle III Hyderabad dated April 21 1973 addressed to the respondent in which he has categorically stated that the income tax clearance certificate issued on the basis of the affidavit dated October 31 1972 was collected from his office by one Mool Chand and let it be recalled that Mool Chand is none other than the person against whom allegations were made that he was acting on behalf of Premlata and Hustimal and whom the appellant knew intimately as it transpired from his statement in the course of the investigation wherein he has stated that if he remembered correctly Shri Mulchand and one Sohanlal son in law of Hustimal also followed Tekchand and were 1018 present while he the appellant was attesting the affidavit
Thus the appellant knew both the respondent and Mulchand and it is this Mulchand whom the ITO referred as having taken away the income tax clearance certificate which was issued on the basis of a forged affidavit alongwith a forged application
There is further intrinsic evidence to show that document Ext
A 1 is either a forged one or fake one
A 1 the affidavit bears the date October 31 1972
Attesting the same the appellant appended his own signature which he admits he has put
It bears the date November 1 1972
Therefore one can say with reasonable certainty that this affidavit Ext
A 1 was attested by the appellant on November 1 1972 Now if we refer to the letter Ext
A 2 addressed to the Income tax Officer J Ward Circle III Hyderabad for the purpose of obtaining the income tax clearance certificate it bears the date October 31 1972
The Income Tax Officer in his letter Ext
A 3 addressed to the respondent states that an application for obtaining an income tax clearance certificate was presented in the name of the respondent on October 31 1972
If the application was thus made to the Income Tax Officer on October 31 1972 it creates a grave doubt about the existence of affidavit exhibit A 1 which has been attested by the appellant on November 1 1972
Of course we are not inclined to attach much importance to this aspect for the reason that the Income Tax Officer may have committed a mistake in referring to the application dated October 31 1972 by merely looking at the date on the application and not the date on which it was presented
Now the cumulative effect of these various pieces of evidence accepted as wholly reliable and practically uncontroverted is that the respondent did not approach the appellant either on October 31 1972 or November 1 1972 nor did he present any affidavit for attestation nor did he admit his signature on exhibit A 1 to the appellant
What conclusion can be deduced from the totality of aforementioned evidence And this bas to be ascertained in the context of the affirmative stand taken by the appellant
The appellant admits that he knew the respondent long before the attestation on Ext
Therefore one can easily rule out impersonation or the appellant being taken by some one for a joy ride
If the appellant knew the respondent intimately before the date of Ext
A 1 and if the incontrovertible conclusion is that the respondent did not appear before the appellant either on October 31 1972 or on November 1 1972 nor did he present any affidavit for the attestation by the appellant nor did he admit his signature the stark albeit unpalatable conclusion that flows therefrom is that the appellant is 1019 a party to a document which is not genuine
It can be safely said that it was a false document purporting to be in the name of the respondent
It would in law become a forged document
The appellant by attesting his signature to it gave a solemnity which is being relied upon by the Income Tax Officer on which a vary valuable document namely Income Tax clearance certificate was issued which facilitated registration of a sale deed in respect of which the contention is that the consideration has not been paid to the respondent
The appellant thus facilitated commission of a fraud by becoming a party to the forged document
In reaching this conclusion we have completely kept out of consideration the opinion of the handwriting expert which was not placed on record in the enquiry proceedings but which was submitted to the criminal court in criminal proceedings
The appellant is thus shown to have violated his statutory duty conferred by the 
He has also acted in a manner unbecoming of a member of a noble profession
He has knowingly become a party to the forgery of a very valuable document and he has by his conduct facilitated the commission of a fraud which would to some extent benefit his senior M Ram Mohan Rao
Does this conduct constitute professional misconduct
After the initial enthusiasm of arguing the appeal evaporated when distressing and disturbing dirty facts started unraveling from the evidence and when Mr Govindan Nair learned counsel for the appellant was requested by us to submit his reply to the notice issued by this Court to the appellant to show cause why the punishment imposed should not be enhanced he practically buckled up and almost conceded that the conduct attributed to the appellant would certainly constitute professional misconduct
Let us keep this concession aside and come to our own conclusion whether the actions indulged in by the appellant by becoming a party to the forged documents so as to facilitate commission of fraud would constitute professional misconduct
Provisions contained in Chapter II in of the Bar Council of India Rules of 1975 prescribe Standards of Professional Conduct and Etiquette 
In the preamble to this part it is stated that an advocate shall at all times comport himself in a manner befitting his status as an officer of the Court a privileged member of the community and a gentleman bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non professional capacity may 1020 still be improper for an advocate  There follows enumeration of the conduct expected of a member of the profession
It is however made clear that the rules in Chapter II contain canons of conduct and etiquette adopted as general guides yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned
It inter alia includes that an advocate shall not act on the instructions of any person other than his client or authorised agent
If Mulchand followed the respondent as admitted by the appellant to his office and if Mulchand presented the forged documents to the Income Tax Officer one can say that the appellant has acted to the detriment of his client at the instance of an outsider whose interest was detrimental to his client
But apart from anything else under Rule 34 of the Civil Rules of Practice if the appellant was authorised to administer oath in respect of affidavits to be used in judicial proceedings in the absence of any authorisation by the State of Andhra Pradesh the appellant could not have subscribed to an affidavit claiming to be authorised by Rule 34 in respect of an affidavit not likely to be used in a judicial proceedings
An affidavit to be placed before an Income Tax Officer for claiming an income tax clearance certificate could not be said to be one sworn in for the purpose of being used in judicial proceedings under the  In the absence of any authorisation from the State Government the appellant would not have the power to attest an affidavit which could be used in a proceedings other than judicial proceeding
One can legitimately expect an advocate of 10 years standing to know that under Rule 34 the appellant was not entitled to attest an affidavit which includes administration of oath which was likely to be used in a proceeding other than a judicial proceeding and yet be pretended to act in his assumed capacity arrogated to himself the jurisdiction which he did not possess and attested the affidavit in the name of someone whom he knew personally and who was not present before him personally and successfully mislead the Income Tax Officer to issue the income tax clearance certificate
Add to this that he made abundantly false statement in the proceedings of disciplinary enquiry that the respondent had appeared before him and admitted his signature
This is not only a false statement but it is false to his knowledge
If this is not professional misconduct it would be time to wind up this jurisdiction
Both the State Committee and the Appellate Committee have soft pedalled the matter when imposing adequate punishment
The appellant is guilty of gross professional misconduct
1021 The Appellate Committee clearly committed an error in deleting some of the observations of the State Committee and that shows not only non application of mind but a conclusion contrary to record which is wholly unsustainable
This aspect is open to us for our consideration as this Court has issued a notice as contemplated by the proviso to Sec
38 of the under which the appeal lies to this Court
This Court has jurisdiction to vary the order of the Appellate Committee which may even prejudicially affect the person aggrieved subject to this pre requisite that it can do so only after a notice to such person and after giving him an opportunity of being heard
By Act 60 of 1973 specific power has been conferred on this Court that in an appeal by the person aggrieved by the decision of the Disciplinary Committee of the Bar Council of India to this Court this Court may pass such order including the order varying the punishment awarded by the disciplinary committee of the Bar Council of India thereon as it deems fit
This jurisdiction will comprehend the jurisdiction to vary the finding of the Appellate Committee
The next question is what should be the adequate punishment that must be imposed upon the appellant  The ludicrously low punishment frankly no punishment imposed by the State Committee makes a mockery of its finding
The appellant has merely been reprimanded for his professional misconduct and this punishment has been upheld in the appeal of the appellant by the Appellate Committee
Sub sec 3 of Sec
35 of the prescribes the various punishments that may be imposed upon a delinquent advocate They are a reprimand the advocate b suspend the advocate from practice for such period as it may deem fit and c remove the name of the advocate from the State roll of advocates
Adjudging the adequate punishment is a ticklish job and it has become all the more ticklish in view of the miserable failure of the peers of the appellant on whom jurisdiction was conferred to adequately punish a derelict member
To perform this task may be an unpalatable and onerous duty
We however do not propose to abdicate our function howsoever disturbing it may be Mr Nair urged that there are certain extenuating and mitigating circumstances that may be kept in proper prospective before this Court proceeds to review the punishment already imposed upon the appellant
It was pointed out that by the relevant time in October November 1972 the appellant had put in only ten years of 1022 practice at the Bar
He was still attending the office of his senior who may have influenced his decision
Further there is no material to show that the respondent had already obtained an income tax clearance certificate
It was urged that affirmance of affidavit is a routine job and the court should not view it with such seriousness as to charge the appellant with dereliction of duty
And add to this the finding that the allegation of payment of Rs 300 is not held proved
None of these grounds are either valid or persuasive
If the appellant had been in practice for a period of ten years at the Bar at the relevant time he had qualified not only for being appointed as a High Court Judge but as a Judge of this Court
This is sufficient to dispel arguments of immaturity
It was said he may be acting under pressure from his senior
In fact this itself should have awakened him all the more to his responsibility when he attested the affidavit
And if he knew the respondent one can only say that it was not because he did not discharge the duty with the amount of seriousness expected of him in attesting the affidavit but he was consciously becoming a party to a serious conspiracy
None of the extenuating or mitigating circumstances appeal to us
Legal profession is monopolistic in character and this monopoly itself inheres certain high traditions which its members are expected to upkeep and uphold
Members of the profession claimed that they are the leaders of thought and society
In the words of Justice Krishna Iyer in Bar Council of Maharashtra vs M V Dabholkar etc
etc the role of the members of the Bar can be appreciated
He said The Bar is not a private guilt like that of barbers butchers and candlestick makers  but by bold contrast a public institution committed to public justice and pro bono publico service
The grant of a monopoly licence to practice law is based on three assumptions 1 There is a socially useful function for the lawyer to perform 2 The lawyer is a professional person who will perform that function and 3 His performance as a professional person is regulated by himself and more formally by the profession as a whole
The central function that the legal profession must perform is nothing less than the administration of justice  The Practice of Law is a Public Utility The Lawyer the Public and Professional Responsibility  by 1023 Raymond Marks et al Chicago American Bar Foundation 1972 p 288 289
A glance at the functions of the Bar Council and it will be apparent that a rainbow of public utility duties including legal aid to the poor is cast on these bodies in the national hope that the members of this monopoly will service society and keep of nanons of ethics befitting an honourable order
If pathological cases of members misbehavior occur the reputation and credibility of the Bar suffer a mayhem and who but the Bar Council is more concerned with and sensitive to this potential disrepute the few black sheep bring about  The official heads of the Bar ie the Attorney General and the Advocate General too are distressed if a lawyer stoops to conquer  by resort to soliciting touting and other corrupt practices
It these are the High expectations of what is described as a noble profession its members must set an example of conduct worthy of emulation
If he falls from that high expectation the punishment has to be commensurate with the degree and gravity of the misconduct
We need not reiterate the seriousness of the misconduct as we have repeatedly pointed out the same above
Usually precedent minded as we generally are we searched for some precedent to assist us in determining adequate penalty
In P J Ratnam vs D K Kanikaram and Ors this Court upheld suspension from practice for a period of five years for a misconduct of not refunding the amount which was taken by the advocate on behalf of his client observing that the Court was surprised at the request of the learned counsel for reducing the punishment and in fact it is a case in which the Court left to itself would have struck off the name of the advocate from the State roll of advocates The Court concluded by saying that suspension of five years errs on the side of leniency and no case is made out for interfering with the same
In Dabholkar s case the professional misconduct charged was that the advocate Dabholkar stood at the entrance of the Court House at the Presidency Magistrate s Court Esplanade Fort Bombay and solicited work and generally behaved at that place in an undignified manner
Frankly speaking if Dabholkar was starving his professional misconduct could have been overlooked because between hunger and soliciting work the letter is less pernicious
However the Seven Judges Constitution Bench of this Court at that stage did not 1024 interfere with the punishment of suspension from practising as advocate for a period of three years
Of course the Constitution Bench was concerned with the narrow point about the maintenance of the appeal by the Bar Council of India
In V C Rangadurai vs D Gopalan and Ors the delinquent lawyer Rangadurai was charged with duping the complainant T Deivasenapaths an old deaf man aged 70 years and his aged wife Smt
D Kamalammal by not filing suits on two promissory notes
The Disciplinary Committee of the State Bar Council had imposed a penalty of suspension from practice for a period of six years
Sen J in his judgment had grave reservations about the majority decision by which the period of suspension was reduced and the advocate was directed to work under an OfficialLegal Aid Board in Tamil Nadu where his service free of charge were required
Justice Sen would dismiss the appeal without the slightest reduction in punishment
Having given the matter our anxious consideration looking to the gravity of the misconduct and keeping in view the motto that the punishment must be commensurate with the gravity of the misconduct we direct that the appellant M Veerabhadra Rao shall be suspended from practice for a period of five years that is upto and inclusive of October 31 1989
To that extent we vary the order both of the disciplinary committee of the State Bar Council as well as the disciplinary committee of the Bar Council of India
Accordingly this appeal fails and is dismissed and the punishment of reprimand imposed upon the appellant is varied and he is suspended from practice for a period of five years ie upto and inclusive of October 31 1989
The appellant shall pay the costs of the respondent quantified at Rs 3000
HSK Appeal dismissed


Summary:
Rule 34 of the Civil Rules of Practice framed by the Andhra Pradesh High Court sets out officers authorised to administer oath for the purpose of affidavits and an Advocate or Pleader other than the Advocate or Pleader who has been engaged in such a proceeding have been included in the list of officers authorised to administer oath
Rule 40 of the said Rules provides that the officer before whom an affidavit is taken shall state the date on which and the place where the same is taken and sign his name and description at the end as in Form No 14 otherwise the same shall not be filed or read in any matter without tho leave of the Court
Form No 14 which prescribes the form of affidavit or solemn affirmation requires a solemn affirmation or oath before the person authorised to administer the same and then at the foot of which the signature of the deponent must appear and below that the officer entitled to administer oath must put his signature in token of both that he administered the oath and that deponent signed in his presence and by his attestation he had subscribed to both the aspects
Provisions contained in Chapter II in part VI of the Bar Council of India Rules of 1915 prescribe Standards of Professional Conduct and Etiquette 
In the preamble to this part it is stated that an advocate shall at all times comport himself in a manner befitting his status as an officer of the Court a privileged member of the community
and a gentle 1004 man bearing in mind that what may be lawful and moral for a person who is not a member of the Bar
Or for a member of the Bar in his nonprofessional capacity may still be improper for an advocate
It inter alia includes that an advocate shall not act on the instructions of any persons other than his client or authorised agent
Sub sec
3 of Sec
35 of the prescribes the various punishments that may be imposed upon a delinquent advocate They are a reprimand the advocate b suspend the advocate from practice for such period as it may deem fit and c remove the name of the advocate from the State roll of advocates
Respondent Tek Chand filed a complaint against the appellant an advocate under Sec 35 of the before the Bar Council of the State of Andhra Pradesh
The respondent alleged that one Mr M Ram Mohan Rao advocate with whom the appellant was working as a junior advocate was a tenant of a house situated at Rashtrapathi Road Secunderabad of which he was the owner
This house was agreed to be sold for Rs 65000 to Premlata daughter of Shri Hastimal Jain and Rs 10000 were paid as earnest money
The sale deed was to be completed within a period of three months on the vendee paying the balance of consideration of Rs 55000
The vendee did not pay the amount and the respondent alleged that he had cancelled the agreement for sale
It was further alleged that as the consideration for sale was exceeding Rs 50000 tho sale deed could not be registered unless an income tax clearance certificate was produced but as the balance of consideration was not paid the agreement to sell the House was cancelled
However as the vendee Premlata wanted to grab the house without paying the balance of consideration in order to get the sale deed registered it was decided to get the income tax clearance certificate and with this end in view an application purporting to be in the name of the respondent with his signature forged there on bearing the date October 311972 and with an incorrect address was prepared
As an affidavit was necessary in support of the application the same was prepared on a stamp paper of Rs 2 with the signature of respondent forged thereon
This affidavit exhibit A 1 was attested by the appellant as he was an advocate authorised to attest affidavits
On the strength of the forged documents an income tax clearance certificate was obtained in the name of the respondent and the sale deed was got registered
It was specifically averred that the respondent neither signed the application for income tax clearance certificate nor swore the affidavit
It was alleged that someone impersonated the respondent and this must be known to the appellant because he knew respondent for many years prior to the attestation of affidavit
It was alleged that a suit had been filed by the respondent against Mr M Ram Mohan Rao senior of the appellant for recovering the arrears of rent in the amount of Rs 17000 and obviously to cause damage to the respondent appellant the junior of Mr M Ram Mohan Rao attested a forged signature on the affidavit
It was alleged that this constituted a very serious professional misconduct and necessary enquiry be made and appropriate action be taken
The appellant admitted that the affidavit exhibit A 1 was attested by him that the respondent did not affix his signature in his presence on the affi 1005 davit exhibit A 1 but admitted the same in his presence whereupon he attested the same
The Disciplinary Committee of the State Bar Council found that the appellant advocate attested the affidavit exhibit A 1 knowing that the respondent complainant had not sworn the affidavit in his presence nor was it signed in his presence by the respondent and therefore this act of attestation of the affidavit giving a misleading information was improper and came with the mischief of professional misconduct and contrary to the norms of some professional etiquette
Having found the appellant guilty of serious misconduct the Committee imposed a ludicrously paltry punishment of reprimand
The appellant filed an appeal before the Disciplinary Committee of the Bar Council of India
 Appellate Committee  for short The Appellate Committee affirmed the order made by the State Committee imposing he punishment of reprimand and conveying a warning to the appellant that he should be careful in future in such matters
The Appellate Committee expunged the observation of the State Committee that the appellant had not attested exhibit A 1 in the presence of the complainant and that this act of the appellant was improper and comes within the mischief of professional misconduct and contrary to the norms of professional etiquette on the ground that these observations were uncalled for
Encouraged by the ludicrous punishment the appellant filed this appeal under section 38 of the 
Dismissing the appeal and enhancing the punishment this Court  HELD Both the fact finding authorities concurrently recorded the finding that the respondent did not put his signature on the affidavit exhibit A 1 in the presence of the appellant and yet the appellant by contributing his attestation to the affidavit made a declaration that the signature was of the appellant made in his presence
We consider this unambiguous finding wholly incontrovertible in the facts of this case that the appellant never appeared before the respondent either on October 31 1972 or November 1 1972
1014 D E The tell tale circumstances on record and the cumulative effect of the various pieces of evidence accepted as wholly reliable and practically uncontroverted would clearly render this finding unassailable
The stark alocit unpalatable conclusion that flows is that the appellant is a party to a document which is not genuine
It can be safely said that it was a false document purporting to be in the name of the respondent
It would in law became a forged document
The appellant by attesting the signature to it gave a solemnity which is being relied upon by the Income Tax Officer on which a very valuable document namely income tax clearance certificate was issued which facilitated registration of a sale deed in respect of which the contention is that the consideration has not been paid to the respondent
The appellant thus facilitated commission of a fraud by becoming a party to the forged document
The appellant has thus violated his statutory duty conferred by the  He has also 1006 acted in a manner unbecoming of a member of a noble profession
He has knowingly become a party to the forgery of a very valuable document and he has by his conduct facilitated the commission of a fraud which would to some extent benefit his senior Mr M Ram Mohan Rao
Does this conduct constitute professional misconduct  1018 G H 1019 A B 1019 D E One can legitimately expect an advocate of 10 years standing to know that under Rule 34 the appellant was not entitled to attest an affidavit which includes administration of oath which was likely to be used in a proceeding and yet he pretended to act in his assumed capacity arrogated to himself the jurisdiction which he did not possess and attested the affidavit in the name of someone whom he knew personally and who was not present before him personally and successfully mislead the Income Tax Officer to issue the income tax clearance certificate
Add to this that he made a blatantly false statement in the proceedings of disciplinary enquiry that the respondent had appeared before him and admitted his signature
This is not only a false statement but it is false to his knowledge
If this is not professional misconduct it would be time to wind up this jurisdiction
The appellant is guilty of gross professional misconduct
120 E G The Appellate Committee clearly committed an error in deleting some of the observations of the State Committee and that shows not only not application of mind but a conclusion contrary to record which is wholly unsustainable
1021 A By Act 60 of 1973 specific power has been conferred on this Court that in an appeal by the person aggrieved by the decision of the Disciplinary Committee of the Bar Council of India to this Court this Court may pass such order including the order varying the punishment awarded by the Disciplinary Committee of the Bar Council of India thereon as it deems fit This jurisdiction will comprehend the jurisdiction to vary the finding of the Appellate Committee
1021 C D In the instant case having given the matter our anxious consideration looking to the gravity of the misconduct and keeping in view the motto that the punishment must be commensurate with the gravity of the misconduct we direct that the appellant shall be suspended from practice for a period of five years that is upto and inclusive of October 31 1989
1024 D E Krishan Chander Nayar vs The Chairman Central Tractor Organisation and Ors  Bar Council of Maharashtra vs MV Dabholkar etc
etc  at 322 PJ Ratnam v D Kanikram and Ors  and VC Rangadurai v D Gopalan and Ors
   referred to