R. JANARDHANA RAOversusG. LINGAPPA

A                           R. JANARDHANA RAO
                                       v.
                                 G. LINGAPPA

                               JANUARY 12, 1999

B               [S.B. MAJMUDAR AND U.C. BANERJEE, JJ.]

          Advocates Act, 1961 : Sections 35 and 38.

          Professional misconduct-Act not amounting to-Relief f o,.._Advocate
C. persuaded complainant, the opposite pa1ty in a civil suit, pursuant to a
    compromise to give him a hand loan of Rs. 3,000 against a post dated
    chequ~The cheque bounced and Advocate did not refund the amount
    despite repeated requests of the complainant-Held, The said act of the
    Advocate does not amount to professional misconduct-But civil remedy or
    criminal litigation under S. 138 of the Negotiable Instrnments Act, 1881 is
D   available to the complainant-However Rs. 3,000 already deposited by the
    Advocate in the Registry of the Supreme Court pennitted to be withdrawn by
    the complainant towards his dues-In addition Rs. 1,000 by way of cost
    awarded to the complainant to be paid by the Advocate-Negotiable Instrn-
    ments Act, 1881-l'ractice and Procedure.
E
          The respondent-complainant, one of the parties in a civil suit, after
    its compromise was persuaded to give a hand loan of Rs. 3,000 to the
    appellant-Advocate of the other side against a post dated cheque. The said
    cheque bounced and despite repeated requests of the respondent the
    appellant did not refund the said amount. Therefore, the respondent filed
F   a complaint before the State Bar Council, which came to the conclusion
    that the appellant was guilty of professional misconduct and suspended
    the appellant from practising as an Advocate for a period of two years.
    The Bar Council of India dismissed the appeal filed by the appellant.
    Hence this appeal.
G         Allowing the appeal, this Court

          HELD : 1. The appellant while taking the loan from the respondent on
    any pretext was not acting in his professional capacity qua the complainant.
    He was acting as a needy person and persuaded the creditor to give him an
H   amount of Rs. 3,000. If that amount was not paid back, civil remedy was
                                         66
-I
                      R.JANARDHANARAOv. G.LINGAPPA[S.B.MAJMUDAR,J.]                  67

              available to the complainant and if the cheque had bounced after coming A
        ...   into force of Section 138 of the Negotiable Instruments Act, 1881, it might
 .
..,,
              have resulted in criminal litigation, but the appellant qua the complainant
    I         had not committed any professional misconduct. (68-G-H]                     I
    )

    !              M.B. Mirzan v. Discipli11a1y Committee of the Bar Council of
              Maharashtra, (1972] 4 SCC 412, referred to.                                  B

        "           2. It is a fit case to award by way of cost to the respondent-com-
              plainant an amount of Rs. 1,000 to be paid by the appellant-Advocate in
              addition to the amount of Rs. 3,000 already deposited by the appellant-Ad-
              vocate in the Registry of the Supreme Court which the respondent is
              permitted to draw towards his dues. (70-A-B]
                                                                                           c
                      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4224 of
              1989.
-:;
                    From the Judgment and Order dated 30.7.89 of the Disciplinary          D
        ~
              Committee of the Bar Council of India in Misc. P. No. 1/89 in D.C.A. No.
              15 of 1988.

                      A. Subba Rao for the Appellant.

                      Anjani Kumar Jha for the Respondent.                                 E
                      The Judgment of the Court was delivered by

                     S.B. MAJMUDAR, J. The appellant who is a practising Advocate has
              brought in challenge the order passed by the Bar Council of India under
              the provisions of Advocates Act, 1961 holding him guilty of professional     F
        ~
"
1
              misconduct and ordering his suspension from practice for a period of two
              years.

                      A few facts leading to this appeal deserve to be noted.

                    One G. Rami Reddy had filed a suit against the respondent- com- G
              plainant, G. Lingappa and another being O.S. No. 173 of 1983 on the file
              of Assistant Civil Judge, City Civil Court, Hyderabad for dissolution of
        "     partnership. In the suit, the appellant represented the opponent of the
              present respondent-complainant. In the suit, the parties negotiated for
              compromise. As per the terms of agreement dated 2.7.1984 a compromise H
    68                   SUPREME COURT REPORTS                   [1999] 1 S.C.R.

A memo was filed in the Court. On the day of compromise, the complainant
    however was paid an amount of Rs. 12,000 cash though he had to receive
    Rs. 3,000 more meaning Rs. 15,000. It is the case of the complainant-
    respondent before the Bar Council of the State of Andhra Pradesh that
    after the said compromise was entered into, the appellant- Advocate for
B   the other side called him for a cup of tea in the canteen and persuaded
    him to give him a hand loan of Rs. 3,000 as he was in urgent need for
    providing furniture for the School run by his wife. It is the further case of
    the respondent that accordingly he parted with Rs. 3,000 against a post
    dated cheque dated 8.3.1984 given by the appellant to him. The said cheque
    being presented bounced. Despite repeated requests of the complainant-
C   respbndent, the appellant did not refund the said amount. Hence, accord-
    ing to him, the appellant was guilty of professional misconduct. A
    complaint was filed before the State Bar Council of Andhra Pradesh. The
    appellant contested the proceedings. After hearing the parties and record-
    ing the evidence offered by them, the State Bar Council came to the                   ·.~
D   conclusion that the appellant was guilty of professional misconduct and
    hence he was ordered to be suspended from practising as an Advocate for         ;..
    a period of two years from the date of receipt of the order. Appellant's
    appeal before the Bar Council of India failed as its Disciplinary Committee
    was not inclined to take a contrary view.

E       Having heard learned counsel for the parties, it is found that all that
  the complainant alleged was to the effect that the appellant being an
  Advocate of the other side and after settling the civil dispute between the
  parties by way of compromise had persuaded the complainant to part with
  an amount of Rs. 3,000 by way of a hand loan. The post dated cheque given
p by him to the complainant bounced and the appellant did not repay the
  amount even thereafter despite repeated request. In our opinion, these
  type of allegations even taken at the highest, would show that the com-
  plainant was persuaded to give a hand loan of Rs. 3,000 to the appellant
  and that amount was not repaid by him. It is pertinent to note that the
  appellant while taking the loan from the respondent on any pretext was not
G acting in his professional capacity qua the complainant. He was acting as
  a needy person and persuaded the creditor to give him an amount of Rs.
  3,000. If that amount was not paid back, civil remedy was available to the
  complainant and if the cheque had bounced after coming into force of
  Section 138 of the Negotiable Instruments Act, it might have resulted in
H criminal litigation, but however so far as the professional misconduct is
      RJANARDHANARAOv. G.LINGAPPA(S.B.MAJMUDAR,J.]                         69

concerned, we fail to appreciate as to how the Disciplinary Committee of          A
the State Bar Council held that the appellant qua the complainant had
committed any professional misconduct because he had taken a hand loan
from the complainant- respondent and not repaid it. It is also to be noted
that against the order of the Disciplinary Committee of the Bar Council of
India, this court as early as on 8.11.1989 issued notice and suspended the        B
order of the Bar Council of India. The said order is continuing
althroughout and we are informed by learned counsel for the appellant that
the appellant is still practising. By an order dated 9.9.1991 in presence of
learned counsel for the respondent this Court had directed that the appel-
lant shall take steps to deposit a sum of Rs. 3,000 in the Registry of this
Court within a period of four weeks for payment to the respondent. Office         C
report shows that the amount was already deposited as early as on
25.9.1991. Learned counsel for the respondent states that this amount is
still not withdrawn. Under these circumstances, in our opinion, the appel-
lant cannot be said to be guilty of any professional misconduct. It is also
interesting to note that in the very examination-in-chief before the Discipli-·   D
nary Committee of State Bar Council the complainant stated that if Rs.
3,000 is paid to him, he is prepared to withdraw the complaint. We fail to
appreciate how the appellant being a practising Advocate did not take up
this opportunity to close the chapter as admittedly he had taken the loan
and had not repaid the same to the complainant - creditor. That shows an
inadvertant conduct on the part of the appellant but still it does not make       E
out any professional misconduct. We would have understood if the appel-
lant was alleged to have misused his position and had taken any money
from his own client and had retained that amount. That would have been
a clear case of professional misconduct in view of the decision of this Court
in the case of N.B. Mirzan v. The Disciplinary Committee of the Bar Council       F
of Maharashtra and Anr., reported in [1972) 4 SCC 412. But this is not one
case. There was no professional obligation or duty of the appellant qua
respondent-complainant who was a third party and who was no better than
a third party creditor qua the appellant.

        In the result, the order passed by the State Bar Council of Andhra G
Pradesh and the Disciplinary Committee of the Bar Council of India are
set aside and the complaint filed by the complainant is dismissed. However,
an amount of Rs. 3,000 which is lying in the Registry of this Court shall be
permitted to be withdrawn by the respondent towards his dues. We deem
it fit to award by way of cost to the respondent-complainant an amount of H
    70                   SUPREME COURT REPORTS                   (1999) 1 S.C.R.

A Rs. 1,000 which shall additionally be paid by the appellant to the respon-
    dent within a period of four weeks from today, meaning thereby the
    respondent will be entitled to withdraw Rs. 3,000 which is lying in the
    Registry of this Court and an additional amount of Rs. 1 000. Learned
    counsel for the appellant is permitted to deposit this amount of cost of Rs.
B   1,000 in the Registry of this Court which will be permitted to be withdrawn
    by the respondent on due identification along with already deposited
    amount towards full and final satisfaction of his money claim against the
    appellant. The appeal is allowed accordingly subject to the order of cost
    as aforesaid directed to be paid to the respondent.

    v.s.s.                                                     Appeal allowed.