judgement:
minal Appeal No. 540 of 1985.
From the Judgment and Order dated 27.3.85 & 22.5.85 of the Patna High Court in Govt.
Appeal No. 28 of 1979.
Udai Narain Sinha and M.P. Jha for the Appellants.
D. Goburdhan for the Respondent.
ANAND, J. This appeal under Section 2(a) of the , is directed against the judgment and order of the High Court of Patna dated 27th March, 1985 in Government Appeal No. 28 of 1979, convicting and sentencing the appellants, Shatrugan Singh (Al), Kapildeo Singh (A2), Rampriya Yadav (A4), Brij Bihari Singh (A5), Ram Ekbal Singh (A6) and Suresh Singh (A7), (Awadesh Singh (A3) died after the judgment of the High Court) for offences under Sections 302, 302/149, 148, 324 and 326 IPC, by reversing an order of acquittal recorded by the Additional Sessions Judge VI, Patna dated 28th April 1979.
While Al and A2 are brothers, A3 is the son of A2, A4 is a ploughman of A 1.
A5 is the son in law of A2, A6 is the brother in law of A3 and A7 is the son of A6.
The prosecution case in brief is that the deceased Shyamdeo Singh was on enimical terms with A1 and A2 and litigation was going on between the two parties.
On the night intervening 12/13 October 1977, at about mid night at village Malia Gaura, the appellants along with Awadesh Singh A3, variously armed went to the house of the deceased and knocked at the door of the room in which he was sleeping.
Rajmani Devi PW 13, the daughter of the deceased alongwith her ailing child was also sleeping in the same room.
On hearing the knocking, she opened the door and found Al, A3 and A5 armed with pistols, A2 armed with a gun, A4 and A7 armed with a grasa each and A6 armed with a dagger present there As soon as she opened the door 5 Kapildeo Singh A2 fired from his gun at her causing an injury to her person.
Rampriya Yadav A4 hurled a grasa blow as a result of which two of her fingers of the left hand were chopped off.
Ram Ekbal Singh A6, thereupon, told his companions to spare her and to kill her father, Shyaindeo Singh, for which purpose they had come there.
Rajmani Devi PW 1 3 was pushed aside by the accused who entered the room.
When her father moved towards her, A1 Shatrugan Singh opened fire at him with his pistol aiming it at his chest.
Shyamdeo Singh on receipt of the pistol shot fell down in the room and died.
Ram Ekabal Singh A6 hurled a dagger below on the deceased.
After committing the crime, the accused party opened the entrance door and fled away.
While they were retreating, some villagers who were coming towards the house of the deceased on hearing the noise were also attacked and in the process a gun shot injury was caused to Basant Sao PW II.
The villagers, thereafter, made arrangements for a cot to carry Rajmani Devi PW 1 3 to the Police Station and while going to the Police Station, they stopped at the house of the local Mukhiya, Ram Nandan Singh PW 8, who also accompanied her to the Police Station Naubatpur.
Basant Sao PW 11 was also brought to Naubatpur Police Station on a cot by his relations and villagers.
On the basis of the statement of Rajmani Devi PW13, FIR exhibit 7 was drawn up at the Police Station Naubatpur and a case was registered in the early hours of the morning of 13.10.1977.
Investigation was immediately taken up by Pameshwar Parshad Singh PW 15 and both the injured Rajmani Devi PW 13 and Basant Sao PW 11 were sent for treatment to Naubatpur Hospital where their injuries, were examined by Dr. Ramesh Kumar Ran PW14.
Considering the serious nature of the injuries of Basant Sao PW II, he was referred to Patna Medical College Hospital ' The investigating officer Parmeshwar Prasad Singh PW 15 visited the place of occurrence and prepared the inquest report of the dead body of Shyamdeo Singh and sent the body forpost mortem examination.
During the investigation, the investigating officer PW 1.5 seized blood stained earth from the place of occurrence.
An empty cartridge was produced before the investigating officer by one Ram Rekha Singh.
After Basant Sao PW11 reached PMCH for treatment, information was sent by the doctor to the local police of Pirbahore Police Station.
ASI Ram Lakhan Jha of Pirbahore Police Station went to the hospital and recorded the statement of Basant Sao PW 11, exhibit 12 on 14.10.1977 at about 8 P.M., after Basant Sao PWI 1 had regained consciousness.
He sent the same to the officer 6 in charge of Naubatpur Police Station.
Mr. Udai Sinha, learned senior advocate, appearing for the appellants submitted that the version of the occurrence given by Basant Sao PW 11 in his statement recorded at PMCH by Ram Lakhan Jha DW1 (exhibit 12) was materially different from the statement of Rajmani Devi PW 1 3 recorded as FIR exhibit 7 at Police Station Naubatpur and gave a lie to the prosecution case rendering the prosecution case doubtful.
Learned counsel submitted that the High Court erroneously ignored the statement of Basant Sao PW 11 holding it inadmissible in evidence on the ground that it had been recorded after the investigation in the instant case had started on the FIR being lodged by Rajmani Devi PW 13.
According to the learned counsel, statement of Basant Sao, exhibit 12 could not be said to have been recorded during the investigation of the case and should not have been ruled out of consideration.
We cannot agree.
In our opinion, the High Court was justified in ignoring the statement of Basant Sao, exhibit 12, as it admittedly was recorded during the investigation of the case registered on the basis of FIR exhibit 7 and had been sent to the investigating officer PW 15 by Ram Lakhan Jha DW 1.
The statement was, therefore, hit by Section 162Cr.
P.C. and could not be read in evidence.
Even if be assumed for the sake of argument, though without accepting it, that exhibit 12 was in the nature of an FIR lodged by Basant Sao PWI 1, the same could not have been brought on record as not only Basant Sao PW11 denied making any such statement, he was not even confronted with the alleged statement exhibit 12 nor his signatures got proved on it.
exhibit 12 could not, therefore, be read at all in evidence.
The trial court not only committed an error in bringing on record exhibit 12 and reading it in evidence but also going further and comparing it with FIR exhibit 7 lodged by Rajamani Devi and finding discrepancies in the two documents.
Learned counsel then submitted that due to the admitted enmity between the parties and the hostility of the Mukhiya of the Gram Panchayat, PW8 towards A1 and A2, it would not be safe to rely upon the testimony of the prosecution witnesses without looking for independent corroboration and since none was forth coming in the case, the conviction of the appellants was not justified.
In view of the hostile relations between the parties and the fact that all the accused are closely related to each other and the prosecution 7 witnesses are also closely related or connected with each other, we have scrutinised the evidence on the record with care.
Our independent and careful appraisal of the evidence on the record has convinced us that the version given by the first informant, PW13, about the occurrence in the first FIR exhibit 7, lodged almost within three hours of the occurrence, is a truthful version of the manner in which she had received the injuries as also how her father had been shot at and as to who the assailants were.
Rajmani Devi PW 13, is the.
injured person and as such she would be the last person to spare her real assailants or the assailants of her father and substitute the real assailants by innocent persons.
She was the first victim of the assault.
Her statement in court corroborates FIR exhibit 7 and the medical evidence and the testimony of other witnesses lends sufficient corroboration to her testimony.
From the evidence on the record it is established that Rajmani Devi PWI 3 was sleeping along with her child in the same room as her father, deceased Shyamdeo Singh, at the time of the occurrence.
She knew all the appellants and she had enough time to see them in the light of the burning lantern.
It is the consistent case of prosecution witnesses PW9, PW 1 0 and PW 1 2 that a lantern was burning in the room and the mere fact that the investigating officer failed to take the lantern into possession cannot render the testimony of these witnesses doubtful.
Rajmani Devi PW13 attributed specific acts to Kapildeo Singh A 1 and Rampriya Yadav A4 in so far as the injuries on her own person were concerned and to Shatrugan Singh A1 in so far as the fatal pistol shot on her father was concerned.
She, of course, deposed that the other accused persons variously armed were also present at the time of occurrence.
Kunti Devi PW10, the sister of Rajmani Devi PWI 3, stated that after hearing the sound of gun shot she woke up and went into the room where her sister was sleeping with the child.
She then went on to say " I saw that the accused Kapildeo Singh, Shatrugan Singh and Awadesh Singh were coming out from the room of my father.
Besides these other people were also there but I could not recognize them due to darkness.
A lantern was hitting up in the room of my father.
I had recognised the aforesaid three accused persons in the lantern light".
This witness, 8 therefore, recognized only Al, A2 and A3.
though she knew all the accused persons.
Varat Devi PW 1 2, the sister in law of the deceased, Shyamdeo Singh, who was also present in the house on the night of the occurrence and was sleeping in another room with Kunti PW 1 0 and the wife of the deceased deposed that at mid night she heard the shot of a gun and as she got up and opened the door to go out, she saw some persons coming out from Shyamdeo Singh 's room.
She went on to say that "out of them, I recognized Kapildeo Singh, Shatrugan Singh and Awadesh Singh.
All the three accused persons are present in the court".
This witness also thus recognized only three accused Al, A2 and A4, even though according to the prosecution case, all the accused were known to her.
Ram Nandan Singh PW8, who according to the prosecution case, being the Mukhiya of the village went to the police station, stated in his examination that he had told the police that seven persons had their hand in the killing of the deceased but admitted in the cross examination that before the police, he had named only two accused persons, namely, Kapildeo Singh A2 and Shatrugan Singh A1 as the assailants.
Rajeshwar Singh PW5, a neighbour of the deceased, who woke up on hearing the firing of the gun and went to the house of the deceased stated that he had seen the deceased Shyamdeo Singh lying an Rajmani Devi PWI3 sitting near the dead body with injuries on her breast and fingers and that on his inquiry from Rajmani Devi PW 1 3 as to what had happened was told by her that Kapildeo Singh had caused her the injury by his gun and that Rampriya Yadav had cut her fingers with a grasa and that Shatrugan Singh had killed her father by the shot of pistol.
This witness has also, therefore, supported PW13 about the manner of assault and the nomination of the actual assailants.
From an analysis of the evidence referred to above, it is clear that while Rajmani Devi PW 1 3 had named all the seven accused, she had attributed specific acts only.to Kapildeo Singh A2, Rampriya Yadav A4 and Shatrugan Singh A 1.
Kunti Devi PW10 and Varat Devi PW 12, on I their own showing had" recognized only Kapildeo Singh A2, Shatrugan Singh Al and Awadesh Singh Al.
They did not recognize and other accused persons even though they were known to them.
PW5 also did not state that Rajmani Devi PW13 had given to him the names 9 of any other accused, when he had reached her house soon after the occurrence.
In view of the admitted enmity between the parties and the close relationship of the witnesses inter se and the close relationship of the accused persons with one another, the possibility that alongwith the actual assailants some other have also been implicated cannot be ruled out.
Prudence therefore requires that this court should look for corroboration of the testimony of PWI3 in respect of each of the accused before finding them guilty.
Since, the prosecution witnesses referred to above knew each of the accused, the non identification by any one of them of A5, A6 and A7 renders the presence of these accused and their participation rather doubtful.
It is not possible to say with any amount of certainty that they were actually involved in the commission of crime with the other accused persons.
Of course, PW 1 3 would not leave her own assailants or the assailants of her father, but it is not unknown that in view of the pronounced hostility between the parties, the close relations of A 1, A2, A3 and A4, namely, accused A5, A6 and A7 may have also been roped in.
Though PW 1 0 and PW 12 did not recognize Rampriya Yadav A4 as one of the accused but the participation of Rampriya Yadav A4, who according to Rajmani Devi PWI3 had given her the blow with the grasa chopping off her two fingers of the left hand, in our opinion has been conclusively established.
The presence of Awadesh Singh A3, since deceased, is admitted by all the prosecution witnesses.
The testimony of Rajmani Devi PW 1 3, is consistent about the participation of Shatrugan Singh Al and Kapildeo Singh A2 alongwith Rampriya Yadav A4 in the crime.
Inspite of lengthy cross examination nothing has been brought out to discredit her testimony in so far as either the occurrence or the actual assault on her and the deceased is concerned.
The ocular testimony regarding the participation of the accused in the crime as well as the manner of assault and the nature of weapons used by A1, A2 and A4 for causing injuries has received ample corroboration from the medical evidence and the recovery of the blood stained clothes and earth from the place of occurrence.
The FIR lodged by the injured witnesses promptly also lends enough assurance as regards the participation of A 1, A2, A3 and A4 in the crime.
We have, therefore, no hesitation to hold that the prosecution has established the case against Shatrugan Singh A1, Kapildeo Singh A2, Awadesh Singh A3 (since dead) and Rampriya Yadav A4, beyond any reasonable doubt.
10 This now takes us to the question of the nature of the offence committed by the aforesaid four appellants.
Since, we have doubted the presence of A5, A6 and A7 and their participation in the crime,they are entitled to the benefit of doubt and giving them the benefit of doubt, we allow their appeal and setting aside their conviction and sentence acquit them.
With the acquittal of A5, A6 and A7, it is only the four appellants Al, A2, A3 and A4 against whom the prosecution can be said to have established its case beyond a reasonable doubt.
Section 148 IPC under the circumstances would have no application.
Similarly, Section 149 IPC would also not be attracted and A2, A3 and A4 cannot be convicted under Section 302 with the aid of Section 149 IPC.
From the prosecution evidence, however, it stands amply established that the three appellants, Al, A2 and A4 alongwith A3 (since dead) had come together armed with deadly weapons to the house of the deceased Shyamdeo Singh and while Al Shatrugan Singh had fired pistol shot at Shyamdeo Singh resulting in his death, Kapildeo Singh A2 had fired from his gun at Rajmani Devi PW 13, causing her a serious injury on her breast while Rampriya Yadav A4 had caused her grievous injuries with a grasa resulting in the chopping off two of her fingers of the left hand.
The crime was committed in the presence of Awadesh Singh A3.
Therefore, while A2, A3 and A4 cannot be convicted for the offence under Section 302/149 IPC all of them can be said to have shared the common intention, with Shatrugan Singh Al, for committing the murder of Shyamdeo Singh deceased.
The very fact of Al, A2, A3 and A4 came together armed with deadly weapons, at the night, to the house of the deceased and cause deadly injuries to the deceased and seriously wounded Rajmani Devi PW 13 and thereafter escaped together would undoubtedly go to show that all of them shared the common intention to murder Shyamdeo Singh.
They are, therefore, liable to be convicted with the aid of Section 34 IPC and learned counsel was unable to point out any impediment in the way of convicting them with the aid of Section 34 IPC instead of Section 149 IPC.
The evidence on the record has established beyond any doubt that Shatrugan Singh A 1 committed the murder of Shyamdeo Singh deceased by firing the pistol shot.
He has, therefore, rightly been 11 convicted by the High Court for the offence under Section 302 IPC and sentenced to suffer imprisonment for life.
His conviction for the offence under Section 27 of the Arms Act and the sentence of two years R. 1. is also justified.
We, maintain his conviction and sentence on both counts.
We, however, alter the conviction of Kapildeo Singh A2, Awadesh Singh A3 and Rampriya Yadav A4, for the offence under Section 302/149 lPC to the one under Section 302/34 IPC and sentence A2 and A4 each to suffer imprisonment for life (A3 being already dead).
We maintain the conviction of Kapildeo Singh A2 for the offence under Section 27 of the Arms Act as also the sentence of two years R.I. imposed on him for the said offence.
His conviction and sentence for an offence under Section 324 IPC as recorded by the High Court is also maintained.
Rampriya Yadav A4 has also been convicted for the offence under Section 326 IPC and sentenced to three years R.I.
We maintain his conviction and sentence for the said offence.
The conviction of A1, A2 and A4 for the offence under Section 148 is, however, set aside.
The sentence of imprisonment imposed on Al, A2 and A4 on different counts shall, however, run concurrently.
As a result of the above discussion, the appeal of Brij Bihari Singh A5, Ram Ekbal Singh A6 and Suresh Singh A7 is accepted and allowed.
Their conviction and sentence, as recorded by the High Court, are set aside.
They are given the benefit of the doubt and acquitted.
They are on bail.
Their bail bonds shall stand discharged.
The appeal of Al.
A2 and A4 except to the extent of the modification of the judgment under appeal, as indicated above, is dismissed.
All the three appellants Shatrugan Singh A1, Kapildeo Singh A2 and Rampriya Yadav A4 are on bail.
Their bail bonds shall stand cancelled.
They shall be taken into custody to under go the remaining period of their sentence.
G.N. Appeal partly allowed.

summary:
The appellants were charged with offences under Sections 302/ 149, 148,324 and 326 IPC for causing the murder of one IS ' and for causing grievous Injury to one `R '.
The Trial Court acquitted them.
On appeal by the State, the High Court reversed the order of acquittal.
Aggrieved by the High Court 's judgment, the appellants preferred the present appeal.
It was contended on behalf of the appellants that the version of the occurrence given by PW II in his statement recorded viz. exhibit P12 was materially different from the statement of PW 13 recorded as FIR (Ex.7) and gave a lie to the prosecution case rendering the prosecution case doubtful; that the High Court erroneously ignored the statement of PW 11 holding it inadmissible in evidence on the ground that it had been recorded during the investigation; and that due to the admitted enmity between the parties and the hostility of the Mukhiya of the Gram Panchayat towards Al and A2, it would not be safe to rely upon the testimony of the prosecution witnesses without looking for independent corroboration and in the absence of which the conviction of the appellants was not justified.
Partly allowing the appeal, this Court, HELD: 1.
In view of the admitted enmity between the parties and the close relationship of the witnesses inter se and the close relationship of the accused persons with one another, the possibility that 2 alongwith the actual assailants some others have also been implicated cannot be ruled out.
Prudence therefore requires that this court should look for corroboration of the testimony of PW 13 in respect of each of the accused before finding them guilty.
Since, the prosecution witnesses knew each of the accused, the non identification by any one of them of A5, A6 and A7 renders the presence of these accused and their participation rather doubtful.
It is not possible to say with any amount of certainty that they were actually involved in the commission of the crime along with the other accused persons.
Of course, PW 13 would not leave her own assailants or the assailants of her father, but it is not unknown that in view of the pronounced hostility between the parties, the close relations of Al, A2, A3 and A4, namely, accused A5, A6 and A7 may have also been roped in (8 H, 9 A C).
Though PW 10 and PW 12 did not recognize A4 as one of the accused but the participation of A4, who according to PW 13 had given her the blow with the grass chopping off her two ringers of the left hand, has been conclusively established.
The presence of A3, since deceased, is admitted by all the prosecution witnesses.
The testimony of PW 13, is consistent a bout the participation of Al and A2 alongwith A4 in the crime.
Inspite of long thy cross examination nothing has been brought out to discredit her testimony in so far as either the occurrence or the actual assault on her and the deceased is concerned.
The ocular testimony regarding the participation of the accused in the crime as well as the manner of assault and the nature of weapons used by A 1, A2 and A4 for causing injuries has received ample corroboration from the medical evidence and the recovery of the blood stained clothes and earth from the place of occurrence.
The FIR lodged promptly by the injured witnesses also lends enough assurance as regards the participation of A 1, A2, A3 and A4 in the crime.
Thus, the prosecution has established the case against Al, A2, A3 (since dead) and A4, beyond any reasonable doubt (9 D G) 3.
Since, the presence of A5, A6 and A7 and their participation in the crime is in doubt they are entitled to the benefit of doubt and giving them the benefit of doubt, their conviction and sentence are set aside and they are acquitted.
With their acquittal it is only the four appellants Al, A2, A3 and A4 against whom the prosecution can be said to have established its case beyond reasonable doubt Section 148 IPC under the circumstances would have no application.
Similarly, 3 Section 149 IPC would also not be attracted and A2, A3 and A4 cannot be convicted under Section 302 with the aid of Section 149 IPC.
From the prosecution evidence, however, it stands amply established that the three appellants, Al, A2 and A4 alongwith A3 (since dead) had come together armed with deadly weapons to the house of the deceased and while A I had fired pistol shot at the deceased resulting in his death, A2 had fired from his gun at PW 13 causing her a serious injury on her breast while A4 had caused her grievous injuries with a grass resulting in the chopping off two of her fingerson the left hand.
The crime was committed in the presence of A3.
Therefore, while A2, A3 and A4 cannot he convicted for the offence under Section 302/149 IPC all of them can be said to have shared the common intention with A 1 for committing the murder of the deceased.
The very fact that A 1, A2, A3 and A4 came together armed with deadly weapons, at the night, to the house of the deceased and caused deadly injuries to the deceased and seriously wounded PW 13 and thereafter escaped together would undoubtedly go to show that all of them shared the common intention.
They are, therefore, liable to be convicted with the aid of section 34 IPC.
(9 H, 10 A F) 5.
The evidence on record has established beyond any doubt that A 1 committed the murder of the deceased by firing the pistol shot.
He has, therefore, rightly been convicted by the High Court for the offence under Section 302 IPC and sentenced to suffer imprisonment for life.
His conviction for the offence under Section 27 of the Arms Act and the sentence of two years R.I. is also justified.
Hence, his conviction and sentence on both counts is maintained.
However, the conviction of A2, A3.
and A4, for the offence under section 302/149 IPC is altered to the one under Section 302/34 IPC.
A2 and A4 are sentenced to suffer imprisonment for life (A3 being already dead).
The convic tion of Al, A2 and A4 for the offence under Section 148 is, however, set aside.
The conviction and sentence of the appellants under section 27 of the Arms Act and under Sections 324 and 326 IPC are maintained.
The sentence of imprisonment imposed on A 1, A2 and A4 on different counts shall, however, run concurrently.
(10 H, 11 A C) 4


judgement:
Appeal No. 6120 of 1983.
From the Judgment and Order dated 25.4.1983 of the Disciplinary Committee of the Bar Council of India in B.C.I. Tr.
Case No. 32 of 1982.
Bharat Sangal for the Appellant.
V.R. Reddy, Addl.
Solicitor General, T. Ratnam and D.N. Goburdhan for the Respondents.
by MOHAN, J. This is a statutory appeal under Section 38 of the Advocates Act of 1961.
The brief facts are as under: The respondent engaged the appellant as a counsel in suit No. 510 of 1964, this was in April, 1976.
The suit was ultimately compromised on 14.6.77.
It was ordered that out of the total amount lying with the court receiver, a sum of Rs. 64,000 shall be paid over to the plaintiff; the balance was to be paid to the respondent and possession of suit property was to be handed over to the respondent by the court receiver.
During the pendency of the suit the court receiver inducted one Usman Ghani Haji Mohamed as a tenant.
He filed CS No. 7 of 1978 praying for an interim injunction restraining the court receiver from handing over possession to the respondent.
That suit was continued.
After the compromise decree was passed on 14.6.77 the appellant who was the counsel for the respondent was requested to withdraw the amount lying with the court receiver and hand over the same to the 1009 respondent.
For this purpose a, letter of authorisation to enable the appellant to receive the amount was also issued, Pursuant to the letter of authorisation and instructions, a total amount of Rs. 50,379 was withdrawn by the appellant from the court receiver.
Out of this, he paid only Rs. 18,000 and the rest was not paid.
Therefore, the respondent preferred a. complaint before the Bar Council of India on 9.1.81.
The appellant was issued a notice by the Bar Council to which he submitted his reply.
On consideration of his reply and hearing the arguments, the Disciplinary Committee of the Bar Council of India, was of the view that the burden of proving the fact that the respondent had paid a sum of Rs. 50,379 lay on the appellant.
Certain receipts produced to evidence payment to the respondent were not accepted.
The plea of the appellant that the account books had been lost was held to be untrue.
Ultimately the appellant was suspended for a period of two years and further directed to pay a sum of Rs. 500 to the complainant (the respondent herein).
It is against this order the present appeal has been preferred.
Learned counsel for the appellant took us through the impugned order and urged that the Committee had not properly appreciated the evidence especially the receipts which were produced by the appellant to evidence the payment.
It is incorrect to hold that the receipt dated 8.8.77 was a suspicious document merely because the account books were not produced, it would not follow that the payments made by the appellant could be disbelieved.
We pointed out to the learned counsel for the appellant that the order under appeal is unexceptional and there was no case for interference.
We felt that the order of suspension of two years was not commensurate with the charges of misappropriation.
Therefore, we directed the issue notice to the appellant which came to be accepted by the learned counsel Mr. Bharat Sangal.
Inspite of the fact that the appellant has not chosen to appear, in order to make over the payment of the amount voluntarily.
Therefore, we are left with no option then to decide the case ourselves on merits.
The Disciplinary Committee of the Bar Council on a proper appreciation of the evidence disbelieved the so called receipts evidencing the payment.
It has come to the correct conclusion that the receipt dated 8th of August, 1979 was got up on a blank signed paper.
Hence, the due 1010 execution of the receipt had not been proved by the appellant.
Besides, the statement of the appellant that the account books had been lost in transit had been rightly disbelieved.
Under these circumstances this is a clear case wherein the misappropriation by the appellant has been fully established.
Once this conclusion is arrived at, the question is what is the punishment to be imposed? Advocacy is not a craft but a calling; a profession wherein devotion to duty constitutes the hall mark.
Sincerity of performance and the earnestness of endeavor are the two wings that will bare aloft the advocate to the tower of success.
Given these virtues other qualifications will follow of their own account.
This is the reason why legal profession is regarded to be a noble one.
But it cannot be allowed to become a sorriest of trades.
It will be useful to quote what Sharaswood said of this profession: A lower, without the most sterling integrity, may shine for a while with meteoric splendor; but his light will soon go out in blackness of darkness.
It is not in every man 's power to rise to eminence by distinguished abilities.
It is not in every man 's power, with fe w exceptions, to attain respectability, competence, and usefulness.
The temptations, which beset a young man in the outset of his professional life, especially if he is in absolute dependence upon business for his subsistence, are very great.
The strictest principles of integrity and honour are his only safety.
Let him begin by swerving from truth or fairness, in small particulars, he will find his character gone whispered away, before he knows it.
Such a one may not indeed be irrecoverably lost; but it will be years before he will be able to regain a firm foothold.
There is no profession in which moral character is so soon fixed as in that of the law; there is none in which it is subjected to severer scrutiny by the public.
It is well that it is so.
The things we hold dearest on earth, out fortunes, reputations, domestic peace, the future of those dearest to us, nay, our liberty and life itself, we confide to the integrity of our legal counselors and advocates.
Their character must be not only without a stain, but without suspicion.
From the very commencement of a lawyer 's career, let him cultivate 1011 above all things, truth, simplicity and candor.
They are cardinal virtues of a lawyer.
Let him always seek to have a clear understanding of his object: be sure it is honest and right and then march directly to it.
The covert, indirect and insidious way of doing anything, is always the wrong way.
It gradually hardens the moral faculties, renders obtuse the perception of right and wrong in human actions, weighs everything in the balance of worldly policy, and ends most generally, in the practical adoption of the vile maxim, "that the end sanctifies the means.
" Therefore an exacting standard is what is expected of an advocate.
This court has taken the view in M. Veerabhadra Rao vs Tek Chand, [1984] Supp.
SCC 571 as to how in such a case professional misconduct has to be dealt with.
In that case, the advocate committed forgery by attesting false affidavits which was held to be a serious misconduct.
This court pointed out the duties of the members of the bar in the following passage: "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, [19751 2 SCC 702 the role of the members of the Bar can be appreciated.
He said at page 718: The bar is not a private guild, like that of 'barbers, butchers and candlestick makers ' but, by bold contrast, a public institution committed to public justice and pro bono public 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 a,, 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 ad 1012 ministration of justice ( 'The Practice of Law is a Public Utility ' 'The Lawyer, the Public and Professional Responsibility ' by F. Raymond Marks et al Chicago American Bar Foundation, 1972, pp. 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 serve society and keep to canons of ethics befitting an honorable order.
If pathological cases of member 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, i.e. the Attorney General and the Advocates General too are distressed if a lawyer 'stoops to conquer ' by resort to soliciting, touting and other corrupt practices.
If these are the high expectations of what is describes as a noble profession, its members must set an example of conduct worthy of emulation.
If any of them falls from that high expectation, the punishment has to be commensurate with the degree and gravity of the misconduct".
Accordingly, the punishment was increased to one of suspension for a period of five years, having regard to the gravity of the misconduct and keeping in view the motto that the punishment must be commensurate with the gravity of the misconduct.
In the case on hand admittedly the complainant (respondent) does not know English.
It is equally admitted that the appellant had withdrawn the money from the Court Receiver.
None of the correspondence addressed to the respondent mentioned about the receipt dated 8th of August, 1977.
The plea taken by the appellant based on the receipt is clearly false.
The appellant has been withdrawing the money over 14 years and he has illegally retained the amount.
Out of a sum of Rs. 50,379 which was admittedly withdrawn from the court receiver only Rs. 18,000 was paid on different occasions.
The said amount was also spread over and paid on 1013 different occasions.
On a direction of this court a sum of Rs. 10,000 had been deposited by the appellant which has been withdrawn by the respondent as per order dated 3rd September, 1991.
Still a sum of Rs. 22,379 is due.
In view of the established finding of misappropriation, we think the proper punishment will be the name of the Advocate must be struck off the rolls.
We order accordingly.
In addition to this the question arises, whether we can direct the refund of the sum of Rs. 22,379 which still is pending for the appellant.
Section 38 of the Advocates Act says as follows.
"Appeal to the Supreme Court: Any person aggrieved by an order made by the disciplinary committee of the Bar Council of India under Section 36 or Section 37 [or the Attorney General of India or the Advocate General of the State concerned, as the case may be], may within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order [including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India] thereon as it deems fit: [Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as to Prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard]." "when it says, ' deems fit, it must be construed as to meet the ends of justice.
We feel the respondent should not be driven to a civil court for recovery of this amount even when the appellant has been found guilty by his own peers which we have also confirmed.
Therefore, we direct that there shall be a decree in favour of the respondent (complainant) for a sum of Rs. 22,379 together with interest at 9% per annum from the date of the complaint till the date of payment.
The appeal is dismissed in the above terms with costs of the respondent which is quantified at Rs. 3000 (Rs. three thousand only).
Before we part with the case we may usefully quote Harry R. Blythe 1014 (cited in "Great God the hour has come when we must clear The legal fields from poison and from fear; We must remould our standards build them higher, And clear the air as though by cleansing fire, Weed out the damning traitors to the law, Restore her to her ancient place of awe." V.P.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent was defendant in a suit.
He engaged the appellant as an Advocate.
The suit was compromised on 14.6.77 ordering that out of the amount lying with the Court receiver, plaintiff was to be paid a sum of Rs. 64,000 and the balance to be paid to the defendant respondent and possession of suit property to be handed over to the respondent.
During the tendency of the suit the Court Receiver inducted a tenant in a suit property.
The tenant filed a suit praying for an interim injunction restraining the court receiver from handing over possession to the respondent.
Tenant 's suit was continued.
After the compromise decree was passed on 14.6.77, the appellant withdrew a total amount of Rs. 50,379 from the Court receiver.
Out of the amount, appellant paid only Rs. 18,000 to the respondent.
On 9.1.81 the respondent filed a complaint against the appellant before the Bar Council of India.
On receiving a notice, the appellant submitted reply.
The Disciplinary Committee of the Bar Council rejected certain receipts produced to evidence payment to the respondent and also the plea of the appellant that the account books were lost.
The Committee suspended the appellant for a period of two years and further directed to pay a sum of Rs. 500 to the respondent.
Before this Court the order of the Disciplinary Committee of the Bar Council of India was challenged contending that the Committee did not properly appreciate the evidence and that it was incorrect to hold that the 1007 receipt dated 8.8.77 was a suspicious document merely because the account books were not produced.
Dismissing the appeal, this Court, HELD : 1.01.
Advocacy is not a craft but a calling , a profession wherein devotion to duty constitutes the hall mark.
Sincerity of performance and the earnestness of endeavor are the two wings that will bare aloft the advocate to the tower of success.
Given these virtues other qualifications will follow of their own account.
This is the reason why legal profession is regarded to be a noble one.
But it cannot be allowed to become a sorriest of trades.
Therefore.
an exacting standard is what is expected of an advocate.
[1010 C D, 1011 C] 1.02.
The members of the noble profession must set an example of conduct worthy of emulation.
If any of them falls from the high expectations, the punishment has to be commensurate with the degree and gravity of the misconduct.
[1012 E] Sharasawood on legal profession, Harry R. Blythe cited if? , referred to.
M. Veerabhadra Rao vs Tek Chand, [1984] Supp.
SCC 571, referred to.[1011 C] 2.01.
The appellant had withdrawn the money from the Court Receiver.
None of the correspondence addressed to the respondent mentioned about the receipt dated 8th of August, 1977.
The plea taken by the appellant based on the receipt is clearly false.
The statement of the appellant that the account books had been lost in transit cannot be believed.
Under these circumstances this is a clear case wherein the misappropriation by the appellant has been fully established.
[1012 F] 2.02.
The appellant has been withdrawing the money over 14 years and lit has illegally retained the amount.
Out of a sum of Rs. 50,379 which was admittedly withdrawn from the court receiver only Rs. 18,000 was paid on different occasions.
Still a sum of Rs. 22,379 is due.
[1012 H, 1013 A] 2.03.
In view of the established finding of misappropriation the proper punishment will be the name of the Advocate must be struck off the rolls.
[1013 B] 1008 2.04.
When Section 38 of the Advocates Act says, 'deems fit", it must be construed as to meet the ends of justice.
The respondent should not be driven to a civil court for recovery of this amount even when the appellant has been found guilty.
Therefore, it is directed that there shall be a decree in favour of the respondent (complainant) for a sum of Rs. 22,379 together with interest at 9% per annum from the date of the complaint till the date of payment 11013 F G]


judgement:
Appeal No. 372 of 1979.
From the Judgement and Order dated 25.5.1978 of the Delhi High Court in Civil Writ Petition No. 1494 of 1973.
Dr. N.M. Ghatate and D.N. Mishra (for J.B.D. & Co.) for the Appellant.
V.C. Mahajan, C. Ramesh and C.V. Subba Rao for the Respon dents.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
The appeal is preferred against the judgment of the Delhi High Court allowing the writ petition filed by the second respondent M/s Ferro Alloys Corporation Ltd. The writ petition was directed against the judgment and order of the Government of India, Ministry of Finance, dated September 19, 1973 in an appeal preferred under paragraph (9) of the Tax Credit Certificate (Exports) Scheme, 1965.
The second respondent is the manufacturer cxportcr of ferro manganese and chrome concentrates.
During the year 1964 65 (from February 28, 1965 to June 5, 1965) the second respondent entered into a number of agreements with the foreign buyers for the sale of the aforesaid two commodities.
The export was routed through the M. M.T.C. the appellant herein, to bring it within the system of private barter introduced by the Government of India with a view to encourage exports.
It would be appropriate to notice the essential features of the barter system in vogue during the relevant period at this stage.
The main objective behind the system was to provide a mechanism which would result in increased export of particular commodities which were ordinarily difficult to sell abroad and to destinations, in which the selling countries were not able to _Pet a foot hold.
This objective was sought to be achieved by linking them to imports of an equivalent or 15 lesser value of essential commodities, which, in any event, the country had to import.
All barter proposals were scrutinized in the first instance by the M.M.T.C. and then by the Barter Committee.
The essential stipulations were: "(i) All imports made under barter deals were subject to such sale price and distribution control as were laid down by the Government and (ii)All barter deals were to be routed through S.T.C./ M.M.T.C. unless otherwise decided upon by barter committee." As and when approval was given by the Government of India, a letter of indent used to be issued by the M.M.T.C. to the bartering firm or the local supplier, as the case may be.
(In this case, there was no bartering firm.
Ferro Alloys was directly sending the goods).
As far as purchase and sale contracts were concerned, the M.M.T.C. insisted that there should be one contract of sale between the local supplier and the M.M.T.C. and another contract of sale by the M.M.T.C. to the foreign buyer on principal to principal basis.
The foreign exchange so generated under this arrangement was the basis for issue of import licences, which were issued in the name of M.M.T.C. with the letter of authority in favour of the bartering firm or the local supplier, as the case may be.
This enabled the bartering firm/local supplier to import the approved commodity under its approval barter and thus he in a position to recoup the losses incurred by it in arranging the supply or in supplying, as the case may be of export commodities to the M.M.T.C.
It was agreed and understood that the ferro alloys should intimate the foreign buyer to enter into a direct contract with the M.M.T.C. treating it as the seller.
It was also agreed that G. R.I. Form prescribed by the Reserve Bank of India under the Rules framed under the Foreign Exchange Regulation Act (for accounting the receipt of foreign exchange) was to be signed by the M.M.T.C. showing it as the exporter and seller vis a vis the foreign buyer.
Letters of credit was also to be opened in the name of M.M.T.C.? which was to be assigned to the Feffo alloys.
This was done with a view to enable the Ferro alloys to receive the payment directly for the goods supplied to M.M.T.C.
The Shipping Bill, which is a document prescribed under the Customs Act, was also to be made out 16 showing M.M.T.C. as the exporter.
The transactions were gone through.
Dispute arose between the parties when the question of issuance of a tax credit certificate under Section 280 (Z) (C) of the Income Tax Act arose.
Sub section (1) of section 280 (Z) (C), as in force at the relevant time, read as follows "Tax Credit Certificate in relation to exports (1) Subjects to the provisions of this section.
a person who exports any goods or merchandise out of India after the 28th day of February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947 (7 of 1947), and the rules made thereunder, shall be granted a tax credit certificate for an amount calculated at a rate not exceeding fifteen per cent on the amount of such sale proceeds.
" A reading of the sub section shows that the tax Credit Certificate is issued to the person "who exports any goods or merchandise out of India after the 28th day of February, 1965, and receives the sale proceeds thereof in India in accordance with the Foreign Exchange Regulation Act, 1947 and the Rules made thereunder.
" Question, therefore, arose who is the person, in the case of this transaction, who can be said to have exported the goods and received the sale proceeds in the shape of foreign exchange.
The matter was taken in appeal before the Government of India under paragraph (9) of the Tax Credit Certificate Exports Scheme, 1965.
On an elaborate consideration of the bartering scheme and the several documents which came into existence in connection with the transactions between the parties, the Government of India held that the M.M.T.C. must be held to be the exporter for the purpose of Section.280(Z)(C) and not the Ferro alloys.
This order was challenged by Ferro alloys by way of a writ petition in the High Court.
The High Court allowed the writ petition on the following reasoning: "While the terms of the scheme of barter and the 17 arrangement between the exporter and the Corporation visualizes in theory that the contracts to be entered into between the exporter and the foreign buyers would be duly substituted by principal to principal contracts between the foreign buyer and the Corporation as well as the Corporation and the Indian supplier of the goods, so that the Corporation virtually gets substituted for the exporter for all external appearance, in actual practice, however, it appears that the substituted contracts are rarely executed and were, in any event, not executed in the present case at either of the two ends although the letter of credits were opened by the foreign buyers in favour of the Corpo ration and the shipments were made in some cases in the name of the Corporation on account of the exporter while in the others in the name of the exporter on account of the Corporation.
No consideration, however, passed between the Corporation and the exporter on account of any sale of the commodity to the Corporation.
The letters of credit being transferable are endorsed immediately on receipt in favour of the exporter by the corporation and the sale proceeds are directly realized by the exporters through their bankers and the commission of the Corporation agreed to is paid by the exporter to the Corporation.
The declaration under Section 12 of the Foreign Exchange (Regulations) Act in Form GR I contains the name of the Corporation as the exporter.
But the form lists the name of the exporters ' banker as the banker concerned.
" In other words, the High Court 's approach was that while for external appearances, the corporation was given out as the exporters, Ferro alloys was the real exporter for all purposes and it was Ferro alloys which earned and received the foreign exchange.
M.M.T.C. got only its commission of 2% and nothing more.
Alternatively held the High Court even if it is held that the documents executed between the parties had the legal effect of transferring title in the goods to and in favour of the Corporation, even so Ferro alloys must be deemed to be 18 the real exporter for the purposes of Section 280(Z)(C), having regard to the objective underlying the said section viz., providing an additional incentive to the real exporter.
The correctness of the said view is questioned in this appeal.
Though the second respondent, Ferro alloys Corporation Ltd., has been served, no one appears on its behalf.
We are, therefore, obliged to dispose of this appeal only with the assistance of the counsel for the M.M.T.C.
May be that there are factors in this case supporting the contentions of both the parties.
In such a case, we have to decide the question on a totality of relevant factors applying the test of predominance.
It is true that there was initially an agreement or contract between Ferro alloys and the foreign buyer for export of manganese and other goods but that was substituted and superseded by the two contracts entered into with respect to the very same goods.
One contract was between Ferro alloys and M.M.T.C. for sale of the said goods to and in favour of M.M.T.C. and the other was a sale by M.M.T.C. to the foreign buyer.
It is significant to notice that these contracts were on principal to principal basis.
Apart from this fact all the statutory documents viz., G. R.I. Form prescribed under the Foreign Exchange Regulation Act, 1947 and the shipping bill prescribed by the Customs Act were made out in the name of M.M.T.C. showing it as the exporter.
We have perused the Form G.R.I.Column 1 pertains to exporter 'sname.
Against this column is shown Minerals and Metals Trading Corporation of India Limited '.
The Form contains a declaration to be signed by the exporter declaring that he is the seller/consignor of goods and a further undertaking that they will deliver to the Bank mentioned in the said Form, the foreign exchange resulting from the export of the goods mentioned therein.
It was signed by the M.M.T.C. Letters of credit were opened in the name of M.M.T.C.
All this was done as required by the system of barter.
Ferro alloys availed of this system presumably because it was to its advantage.
In fact, it appears that it was not able to sell the said goods otherwise.
Be that as it may, whether by choice or for lack of alternative, it chose to route its goods through M.M.T.C.
Is it open to the Ferro alloys now to say that all this must be ignored in the name of "external appearances" and it must be treated as the real exporter for the purposes of Section 280(Z)(C).
It wants to be the gainer in both the events.
A case of "heads I win, tails you lose.
" As against the above circumstances, the factors appearing in favour of the 19 Ferro alloys are the following: The contract between the parties spoke of "commission" of two per cent payable to the M.M.T.C. Use of the expression "commission", it is pointed out, is indicative of the fact that M. M.T.C. was only an agent.
For the M.M.T.C., it is explained that it was one way of describing the difference between the export price and the sale price.
It is submitted that the said feature must be understood in the context of the totality of the scheme, which was not a mere commercial scheme but a scheme conceived in the interest of foreign trade, economy and balance of payments.
Ferro alloys also relied upon a certificate given by the foreign buyer stating that the goods in question were sold to it by Ferro alloys.
But as rightly pointed out by the Government of India, this certificate was obtained long after the relevant transactions were over and evidently to buttress its case with respect to the tax credit certificate.
Not much significance can be attached to it, also because it is in the teeth of the contracts signed by the foreign buyer with the M.M.T.C. with respect to the very same It is also pointed out that some of the documents required to be executed according to (he system of barter were not actually executed between the parties.
May be so.
The fact yet remains that the entire export was done through M.M.T.C. in accordance with the system of barter.
There is no half way house; either it is no '? barter system or it is.
This is an undisputed fact as are the several statutory documents made out in the name of M.M.T.C., referred to here in before.
On a consideration of all the relevant factors and circumstances, we are of the opinion that the M.M.T.C. must be held to be the exporter for the purpose of Section 280(Z)(C).
The entire system of barter and the several documents executed in that behalf including those required by statutory provisions cannot be explained away as mere "external appearances".
The Ferro alloys cannot come to M.M.T.C. when it is profitable to it and disavow it when it is not profitable to it.
It cannot have it both ways.
The title to goods passed to M.M.T.C. by virtue of the several documents executed between the parties.
Indeed, that was the fulcrum of the entire scheme of Barter.
We are also not convinced with the alternative reasoning of the High Court that even if it is held that the title to the goods passed to M.M.T.C., even so Ferro alloys must be held to be the real exporter, in view of the objective underlying Section 280(Z)(C).
If M.M.T. C. has acquired the title to the goods and is the exporter for all other purposes it equally the exporter 20 for the purposes Section 280(Z)(C).
There can he no dichotomy of the nature propounded by the High Court.
We are, therefore of the opinion that the High Court was not right in holding to the contrary.
The appeal is allowed.
The judgment and order of the High Court of Delhi is set aside and the order of the Government of India dated September 19, 1973 is restored.
The writ petition filed by the second respondent in the Delhi High Court is dismissed.
No costs.
G. N. Appeal allowed.

summary:
The Second Respondent (Ferro Alloys Corporation), manufac turer exporter of ferro maganese and chrome concentrates, entered into a number of agreement .
with foreign buyers for sale of the said commodity.
The export was routed through the appellant to bring it within the system of private barter introduced by the Government of India with a view to encourage exports.
The main objective of barter system was to provide a mechanism which would result in increased export of particular commodities which were ordinarily difficult to sell abroad where the selling countries were not able to get a foot hold.
This objective was sought to he achieved by linking them to exports of an equivalent or lesser value of essential commodities which in any event had to he imported.
As for as purchase and sale contracts were concerned, M.M.T.C. insisted that there should be one contract of sale between the local supplier and the M.M.T.C. and another contract of sale by the M.M.T.C. to the foreign buyer on principal to principal basis.
It was agreed that Ferro Alloys should intimate the foreign buyer to enter into a direct contract with M.M.T.C. treating it as the seller.
, Also, the G.R.I. form prescribed by the Reserve Bank of India under the Rules framed under FERA was to be signed by M.M.T.C. showing it as the exporter and seller.
Letters of credit was opened in the name of M.M.T.C. which was to be assigned to Ferro Alloys so that Ferro Alloys could receive the payment directly.
for the goods supplied to 13 M.M.T.C.
The shipping documents also showed M.M.T.C. as the exporter.
The transactions were gone through.
Dispute arose between the parties when the question of issuance of Tax Credit Certificate u/S 280ZC of the Income tax arose as to who could be said to have exported the goods and received the sale proceeds in the shape of foreign exchange.
The matter was taken in appeal before the Government of India.
It held that M.M.T.C. was the exporter for the purpose of S.280ZC.
Ferro Alloys challenged the said order before the High Court by way of a Writ Petition.
The High Court allowed the Writ Petition, and held that the real exporter was Ferro Alloys which earned and received the foreign exchange and M.M.T.C. got only its commission of 2% and nothing more.
Aggrieved by the judgment of the High Court, M.M.T.C. preferred the present appeal.
Allowing the appeal.
this Court, HELD: 1.
The entire export was done through M.M.T.C. in accordance with the system of barter.
There is no half way house; either it is not barter system or it is in accordance with the system of barter.
This is an undisputed fact as , are the several statutory documents made out in the name of M.M.T.C.
Thus M.M.T.C. is the exporter for the purpose of Section 280ZC of the Income tax Act, 1961.
The entire system of barter and the several documents executed in that behalf including those required by statutory provisions cannot be explained away as mere "external appearances".
Ferro alloys cannot come to M.M.T.C. when it is profitable to it and disavow it when it is not profitable to it.
It cannot have it, both ways.
The title to goods passed to M.M.T.C by virtue of the several documents executed between the parties.
Indeed,that was the fulcrum of the entire scheme of Barter.
(19 E F).
This Court is not convinced with the alternative reasoning of the High Court that even if it is viewed that the title to the goods passed to M.M.T.C., even so Ferro alloys must be held to be the real exporter, in view of the objective underlying Section 280ZC.
If M.M.T.C. has acquired the title to the goods and is the exporter for all other purposes it is equally the exporter for the purpose of Section 14 280ZC.
There can be no dichotomy of the nature propounded by the High Court.
(19 H, 20 A).