Case: M/s. Advanta India Ltd Vs. B.N. Shivanna

On a complaint filed by the appellant against the respondent, who is an Advocate, alleging the commission of serious acts of professional misconduct, with the Karnataka State Bar Council, the complaint was referred to its Disciplinary Committee. It examined the matter after giving due opportunity to both the parties to lead their respective evidences and held the respondent guilty of the charges of misconduct levelled against him. As a sequitur, the order dated July 31, 2005 was passed by the State Bar Council whereby the respondent was debarred from practicing for life and his name was also removed from the rolls of the BarStatutory appeal was preferred by the respondent before the BCI which disposed of the said appeal vide the Order dated September 10, 2011. It reduced the punishment awarded to the respondent by debarring him for a period of 18 months, along with fine of Rs.The respondent filed the review petition under Section 48AA of the Advocates Act, 1961 seeking review of order dated September 10, 2011 by the BCI. The Bar Council has allowed the review petition vide order dated July 11, 2015 by setting aside the previous order and directing fresh consideration of the matter. It is this order passed in the review petition which is impugned in theseHaving given the aforesaid introductory remarks, we may now state the fact of the matter in detail:As per the complaint of the appellant company, it is engaged in the research, production and distribution of seeds and hybrids such as sunflowers, maize, cotton, rice, bajra and sorghum. The respondent herein has a long history with the appellant company who initially joined them as a Marketing Executive in 1998. However, he left that job after a brief period and then returned in the capacity of Legal Counsel. According to the appellant, it was at this juncture that devised an elaborate ploy to swindle the appellant company out of lakhs of rupees. It all began when a Police Constable came to the appellant?s office multiple times, beginning in September, 2000, claiming that he was there to execute warrants against the Managing Director, CFO and other top executives of the appellant company. The appellant automatically called their legal counsel, i.e. the respondent herein, to deal with the issue. The respondent had a long conversation with the Police Constable at the end of which he informed the appellant that numerous farmers had apparently filed complaints against the company and it was these large numbers of complaints the Police Constable was concerned with. Each visit of the Constable?s followed the sameThe appellant further alleged in the complaint that the respondent then advised the appellant company to file 631 criminal petitions to quash the alleged complaints filed against them. He painted a picture where the arrest of the appellant?s top executives was imminent and further went to contend that this dire situation could only be staved off if the criminal petitions were filed. He introduced Ms. Gowri as the vendor from whom the stamps for court fees would be purchased. The respondent stated that each petition would require a court fee of Rs.10,000/(Rupees Ten Thousand only) to be filed – a statement that is blatantly false. Misled by the respondent, the appellant remitted Rs.62,51,259/(Rupees Sixty Two Lakh Fifty One Thousand Two Hundred and Fifty Nine only) towards court fees for filing the criminal petitions. In order to make his lie believable, the respondent issued a receipt signed by Ms. Gowri for the amount received as the court fees. Further, respondent also stated that other counsels were required to deal with the criminal petitions and urged the appellant company to retain three persons he introduced as CC Narayana, D. Ramesh and Raghavendra Rao. The appellant company then issued cheques over a period of 15 months to these three persons amounting to Rs.6,46,500/(Rupees Six Lakh Forty Six Thousand and Five Hundred only). In addition to the aforementioned sums, the respondent also charged the appellants herein a sum of Rs.2,12,500/(Rupees Two Lakh Twelve Thousand and Five Hundred only) as hisBy this time, the appellant company had spent a sum of Rs.72,00,000/(Rupees Seventy Two Lakhs only) on litigation and were anxious regarding the results of the petitions. The respondent assured them that the criminal petitions were proceeding well and in December, 2001, when mere assurances were no longer enough, he produced a document he claimed was an order passed by a Single Judge of the High Court of Karnataka at Bangalore dated October 3, 2001 whereby 318 petitions had been allowed in favour of the appellant company. The respondent?s conduct is proven by multiple letters exchanged by him and the appellant company wherein he continued this charade. However, the appellant company grew suspicious of the respondent?s evasive manner. In January, 2002, the Police Constable called the appellant?s offices threatening more warrants. At this juncture, the appellant company sought the advice of another Advocate. This action of the appellant company brought to light the myriad of deceptions practiced upon them by theThe appellant company asked it?s newly appointed Advocate Mr. B.K. Sampath Kumar to check on the status of the criminal petitions as they felt that with the same pending before the trial courts, there was no reason for the Constable to call them and threaten the issuance of warrants. It was then they came to know that no criminal petitions had been filed in their name. The appellant company also gained knowledge that no court fees had to be paid to file criminal petitions. The web of deceit now began to unravel, further queries made to the Commissioner of Stamps, Karnataka and the Secretary of the Bangalore Advocates Association revealed that Ms. Gowri was not a registered vendor of stamps as they had been led to believe. This galvanized the appellants to produce the order given to them by the respondent before the Registrar of the High Court. The latter declared the alleged order as forgery and a fake and unequivocally stated that the Single Judge of the High Court had never issued such an order. In the wake of receiving this fake order, the High Court initiated suo moto contempt proceedings, CCC No.Apart from filing the complaint before the State Bar Council of Karnataka under Section 35 of the Advocates Act on the aforesaid allegations, the appellant company has also filed Criminal Contempt Case No. 12/2002 and filed CC No. 8178 of 2002 under Sections 400, 417, 419, 420, 468, 471 and 474 of the IPC which is pending before the IVth Addl. Metropolitan Magistrate, Bangalore. The appellant has also filed OS No. 1575 of 2002 for recovery of Rs.72,00,000/taken by the respondent on falseThe State Bar Council vide Resolution No. 68 referred the complaint before the Disciplinary Committee. After enquiring into the matter, the Disciplinary Committee adjudged the respondent guilty of misconduct and vide Orders dated July 31, 2005, debarred the respondent for life and removed his name from the rolls of the BCI. The respondent appealed the order passed in DCE No. 14/2004 before the BCI in DC Appeal No. 59/2005. The Disciplinary Committee of the BCI decided the appeal on September 10, 2011. It agreed with every finding rendered by the State Bar Council. However, it chose to reduce the punishment dealt to the respondent and debarred him only for a limited period of 18Aggrieved by the said order of the BCI, the appellant company filed CA No. 2732 of 2012 before this Court. While this appeal was pending, the respondent filed Review Petition No. 7/2011 in DC Appeal No. 59/2005 before the BCI under Section 48AA. The Disciplinary Committee considered the same as per the powers vested in it under Section 44 of the Act and vide impugned order dated July 11, 2015, remanded the matter back to the Disciplinary Committee of theCivil Appeal No. 2732/12 filed by the appellant, thereafter, came up for hearing before this Court on September 01, 2016 which was disposed of as infructuous, with the followingNaresh Kaushik, learned counsel for the appellant submits that since the order impugned in this appeal has been reversed and the matter remanded back to the Disciplinary Committee of the Bar Council of India, this appeal has become infructuous and may be dismissed as such reserving liberty for the appellant to challenge the order passed in review in separate proceedings in accordance with law. The civil appeal is accordingly dismissed as infructuous with the liberty prayedIt is in the aforesaid background that the present appeal filed by the appellant company has come up for hearing in which the counsel for both the parties have beenOn going through the Orders dated July 07, 2015 passed by the Disciplinary Committee of BCI, we discern that the reason which swayed the BCI to review its order was that before the State Disciplinary Committee, the respondent herein was not given adequate opportunity to, i.e., the complainant. It has recorded that the evidence of the complainant was closed on June 19, 2005, even though the respondent could not appear on that day due to his sickness and had produced the medical certificate in support thereof. After closing the evidence of the complainant, case was fixed for respondent?s evidence on July 03, 2005. However, on that day also the respondent was not well and he had sought adjournment in the form of memo supported by medical certificate dated July 02, 2005. This application was declined by the Disciplinary Committee of the State Bar Council and evidence was closed. On that basis, the BCI has formed an opinion that in the absence of an opportunity to, the respondent was denied his valuable right to defend himself which infringed the principle of fair trial. At the same time, while allowing the review petition on the aforesaid basis, instead of remanding the case back to the Disciplinary Committee of the State Bar Council, the BCI has withdrawn the case to itself on the ground that by virtue of the Section 36B of the Act, the jurisdiction of the Disciplinary Committee of the State Bar Council comes to an end on expiry of the period of one year. It has ordered that further enquiry shall be conducted by the Disciplinary Committee of BCI from the stage it was as on June 19, 2005 and the Chairman, BCI may constitute Disciplinary Committee of the BCI in this behalf.

Reasoning:
Taking umbrage under the aforesaid dicta, the impugned order proceeds to hold that if a manifest wrong has been done, it is never too late to undo the wrong, since the factors that are placed on civil courts on their review powers are absent in review powers of the Disciplinary Committee, in terms of Section 44 and Section 48AA of the Advocate?s Act,There cannot be any doubt about the aforesaid proposition stated by the BCI. However, its application on the facts of the present case is clearly unsustainable. We are of the opinion that the BCI has, in fact, gone much beyond the scope of review powers, even when these are liberally construed. Our reasons for this conclusion are discussedWhen we examine the review power of the BCI, keeping in view the aforesaid factual matrix in mind, the necessary consequence would be to hold that in such a situation revisiting the issue on merits again on the pretext that the respondent was not granted proper opportunities to1 is clearly beyond reviewAfter going through the record, we find that the BCI has shown undue indulgence to the respondent by allowing him to take advantage of his own wrong, in the guise of exercising its review power. It is a case of Nullus Commodum Capere Potest De Injuria Sua Propria meaning thereby a party cannot take advantage of its ownHowever, we refrain from making any comments as the appeal of the respondent against his conviction is pending before the appellate court and, moreover, those aspects would have been relevant in deciding Civil Appeal No. 273 of 2012.