Case: N.B. Mirzan Vs. Disciplinary Committee of The Bar Council of Maharashtra

1. This is an appeal under Section 38 of the Advocates Act, 1961. The appellant Mr. N. B. Mirzan, was an Advocate on the roll of the Bar Council of Maharashtra. On 27th October, 1964, respondent No. 2 who was once the client of the appellant, made several allegations of professional misconduct against the appellant which were referred by the State Bar Council to its Disciplinary Committee consisting of three Advocates, one being the Committees Chairman and the other two its members. After a detailed inquiry into the allegations, the Disciplinary Committee came to the conclusion that professional misconduct had been established on three counts which involved moral turpitude. The Committee therefore, directed on 3rd October, 1968 that the appellant should be suspended permanently and should not be allowed to appear before any Court authority or person in India. He was also directed to surrender his Sanad forthwith. From this order, an appeal was filed to the Bar Council of India, being Appeal No. 9 of 1968. The appeal was heard by the Disciplinary Committee of the Bar Council of India consisting of a Chairman and two members. On 30th November, 1969 by a detailed order, the Disciplinary Committee confirmed the findings of the State Disciplinary Committee; but as regards the punishment, it directed that the appellant be suspended from practice for a period of five years and to pay to Respondent No. 2 a sum of Rupees 850/within two months. It was further directed that, if the amount was not paid, the punishment imposed by the State Disciplinary Committee striking out the appellants name from the roll of Advocates would stand confirmed. It is from this order that the present appeal has been filed.2. Respondent No. 2, Saidur Rehman, engaged the appellant as his Advocate in an obstructionist notice issued to him by the Presidency Small Cause Court, Bombay, in R. A. E. Suit No. 2491 of 1961. Respondent No. 2 had been introduced to the appellant by one Noor Mohammed who was a client of the appellant. At the time of his engagement, no fees as such were paid, but a sum of Rupees 190/was demanded by the appellant forstamps and that amount was paid to the appellant. Thereafter, on 26th April, 1962, the appellant demanded from respondent No. 2s wife, Khurshid Begum, a sum of Rs. 975/on the representation that the amount was required for deposit in the above suit by way of rent. A Receipt was issued by the appellant for this amount and it is Ext. A. On 16th August, 1962 the appellant demanded a further sum of Rs. 250/representing that this amount was necessary for payment to some Judge or officer for getting the rent bill transferred in the name of respondent No. 2 in respect of the premises which were theof the above suit. In respect of this payment also, the appellant issued a Receipt dated 16th August, 1962 which is Ext. B.3. The obstructionist notice was discharged on 13th September, 1962, the order being in favour of respondent No. 2.4. Thereafter, the landlord filed suit No. 3402 of 1963 in the City Civil Court, Bombay, against respondent No. 2 and his brother for ejectment and mesne profits. In this suit also, the appellant was engaged by respondent No. 2 as his Advocate. A written statement was filed admitting that no rent had been paid by respondent No. 2 to his landlord from May, 1961 onwards. In view of this admission, the City. Civil Court passed an order directing respondent No. 2 to deposit in Court the amount due for arrears of rent from May, 1961 to September, 1963. This order was passed on 25th September, 1963. The amount was to be paid within two months from that date. Since respondent No. 2s wife had already paid Rs. 975/to the appellant on 26th April, 1962 and the amount was more than sufficient for making the deposit in accordance with the order of the City Civil Court, respondent No. 2 remained under the impression that the deposit would be made by the appellant in due course. In January, 1964, the appellant gave a notice to respondent No. 2 to come with the money for the purposes of deposit and this started the whole trouble, ending with the complaint by respondent No. 2 to the State Bar Council on 27th October, 1964. It appears that, before filing this complaint, notices were exchanged between the parties and a settlement was brought about between the appellant and respondent No. 2 and, under this settlement, the appellant undertook to pay to respondent No. 2 Rs. 1,000/by instalments of Rs. 150/per month. The appellant sent the first instalment of Rs. 150/by money order on 11th October, 1964. The case of the appellant in respect of this money order, however, was that the money order had been sent to respondent No. 2, as respondent No. 2 had asked for a loan and the appellant took pity on him in spite of the strained relations between the parties.5. Chronologically, the three items of payments in respect of which we have before us concurrent findings of professional misconduct are as follows:(1) Demand and receipt by the appellant of Rs. 190/from respondent No. 2 on the representation that the amount was required for purchasing court fee stamps in suit B. A. E. No. 2491/1961. There was no formal receipt issued in respect of this amount.(2) Demand and receipt by the appellant of Rs. 975/from respondent No. 2s wife on 26th April, 1962. The Receipt issued by the appellant in Ext. A and reads asfrom smt. Khurshid Begum sum of Rs. 975/to be paid in Small Causes Court in Suit No. 2491/62 including expenses rent and deposit in the aboveDemand and receipt by the appellant of Rs. 250/from respondent No. 2 on 16th August, 1962. Ext. B is the formal Receipt given by the appellant on that date and it reads asfrom Shri Saidul Rehman the sum of Rs. 250/for transferring the rent bill in his name in Civil Suit No. 2491/61 of Small Causesrespect of all these three payments, respondent No. 2 alleged that these several payments had been made to the appellant on the representations made by him which respondent No. 2 and his wife, in their ignorance, thought were bona fide demands. But, later, they realised that demand for Rs. 190/to purchase court fee stamps was a false demand, because no court fee stamps were necessary to be paid by respondent No. 2 in an obstructionist notice. Similarly, the second demand of Rupees 975/for depositing the amount in court was a false demand, because no order could possibly be passed by the Court asking an obstructionist to make a deposit in Court towards rent. The third demand of Rs. 250/was also a false demand, because there could be no proceedings for transferring the rent bill in the name of respondent No. 2 in the absence of any negotiations with the landlord. It was the allegation of respondent No. 2 that taking advantage of the ignorance and illiteracy of respondent No. 2 and his wife, the appellant had demanded and received all these amounts with a view to misappropriate the same.

Reasoning:
Therefore, there was really no occasion at all on 26th April, 1962 for the appellant making a demand for the amount from respondent No. 2s wife and receiving the same for the ostensible purpose of depositing the amount in Court. It is obvious that he obtained this amount on a false pretext and, when such a demand is made on a false pretext, the inference would naturally follow that the demand had been made with a view to misappropriate the amount.The State Disciplinary Committee had permanently debarred the appellant from practising as an Advocate, but, in appeal, the Disciplinary Committee of the Bar Council of India has taken a more lenient view and suspended the appellant from practice for a period of five years on condition that he pays respondent No. 2 Rs. 850/within two months. No argument was addressed to us on the question of punishment, Therefore, it is not necessary to consider the point.Corroboration is further found in what happened later in 1964 after disputes started between respondent No. 2 and the appellant. In about October, 1964, the disputes, according to respondent No. 2, were settled in the presence of one Mr. Qureshi and the appellant agreed to pay Rs. 1000/to respondent No. 2 byinstalments of Rs. 150/per month. Accordingly, the first instalment was sentto respondent No. 2 bymoney order on 11th October, 1964, and it is admitted by the appellant that he had sent the money order for Rs.He, however, explained that respondent No. 2 along with a social worker had seen the appellant on 10th October, 1964 and requested him for a loan. Out of pity, the appellant says, he sent the money order in question by way of loan on 11th October, 1964. The explanation was regarded by both the Committees as false, because, under the circumstances of the case and in view of the bitter disputes between the parties, it was extremely unlikely that the appellant would make any loan to respondent No. 2. On the other hand, Shri Mardan Ali Quereshi has corroborated respondent No. 2 and stated that in his presence the dispute had been settled between the appellant and respondent No. 2 and the appellant had agreed to pay the amount of Rupees 1000/in instalments of Rupees 150/per month. The story of the loan has been rejected by both the committees and the evidence of respondent No. 2 and Quereshi has been accepted, in which case it is impossible to believe that the appellant had returned the sum of Rs. 975/to respondent No 2 as far back as 13th September, 1962.We, therefore agree with the concurrent finding of both the Committees that the appellant had demanded and received Rs. 975/from respondent No. 2s wife Khurshid Begum on a false representation that the amount was required to be deposited in Court and thereafter misappropriated the same.10. The third item is of rupeesThere is no dispute that this amount was received by the appellant either from respondent No. 2 or his wife. Respondent No. 2 says that it was received from his wife during his absence. The Receipt Ext. B, however, is made in the name of respondent No. 2. The contents of the Receipt themselves go to support respondent No. 2s case that this amount had been paid, because the appellant had represented that the amount was required for transferring the rent bill in respect of the premises in the name of respondent No. 2. The amount was received by the appellant on 16thAugust, 1962, i.e., much before the obstructionist notice had been discharged. The appellant had great difficulty in explaining what this Receipt meant. In the notices exchanged in 1964, the appellant had denied altogether having received this sum of Rs. 250/for the purpose of the transfer of the rent bill. In the written statement before the State Disciplinary Committee, the appellant did not categorically deny the receipt of Rs.He suggested there that he had been instructed by respondent No. 2 to file a declaratory suit for transferring rent bill in his name. One does not know what this really means. The obstructionist proceedings were still pending and one does not know what kind of proceedings could be taken in a court of law for transferring the rent bill. It is not the case that there were any negotiations with the landlord for transferring the rent bill in the name of respondent No. 2. Then again, if any such suit was to be filed, the appellant and his client would have thought about it only after the obstructionist proceedings had come to an end and not in August, 1962. In his evidence, the appellant stated that this amount of Rs. 250/had been paid to him by respondent No 2 of his own accord and the appellant had never suggested that any declaratory suit was required to be filed. This is rather a tall story. Seeing that the story was unconvincing, the appellant changed his case later and stated that this sum of Rs. 250/was paid to him towards thein respect of the intended declaratory suit, his fees and other pocket expenses. That explanation is also false, because it is nobodys case that any such declaratory suit was ever filed. It is, hence, clear that the appellant was not at all able to explain why he demanded this amount of Rs.The conclusion is irresistible that he must have represented that this amount was required to pay somebody for the purposes of transferring the bill of the suit premises in the name of respondent No. 2, knowing quite well that it was impossible to secure a transfer of the rent bill in legal proceedings in court. The amount had been screwed out by the appellant on a false representation for the purposes of misappropriation. In our opinion, the findings of both the Disciplinary Committees were right and unexceptionable. Normally this Court does not entertain an appeal from a concurrent finding of facts. We have, however, gone through the facts to satisfy ourselves that no injustice has been done.