Bhataraju Nageshw Ara Rao vs The Hon'ble Judges of the Madras High Court and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 146 of 1954

Decision Date: 3 December 1954

Coram: B.K. Mukherjea, Vivian Bose, Das

In this case, the Supreme Court of India delivered a judgment on 3 December 1954 in a special leave appeal identified as Civil Appeal No 146 of 1954, arising from an order dated 17 December 1952 of a Special Bench of the Madras High Court. The appeal concerned the suspension of an advocate under section 12 of the Indian Bar Councils Act, 1926. The bench consisted of Justice B.K. Mukherjea, Justice Vivian Bose and Justice Das, Sudhi Ranjan. The petitioner was Bhataraju Nageshw Ara Rao, an advocate ordinarily practising at Masulipatam, and the respondents were the Hon’ble Judges of the Madras High Court and other parties. The citation for this judgment is reported as 1955 AIR 223 and 1955 SCR (1) 1055. The headnote observed that it is improper to implead the High Court judges as respondents in an appeal against a suspension order; the appropriate respondents are the complainant, the Bar Council or its Secretary, and the Advocate-General of the concerned State.

The appellant was represented by counsel, while counsel for respondent No 1 and counsel for respondent No 3 were also engaged. The matter before the High Court involved a criminal proceeding in Calendar Case No I of 1949 before the Additional First Class Magistrate’s Court at Masulipatam, where nine persons were charged with transporting rice without permits. Accused numbers 2 and 4 were unrepresented, while the appellant defended accused numbers 1, 3, 5, 6 and 8, all of whom were cart-men. Accused number 7, who initiated the proceedings that gave rise to the present appeal and is referred to as “the petitioner,” was defended by another advocate. The Magistrate disposed of the case on 30 September 1949, acquitting accused numbers 1, 3, 5 and 6. Accused number 2 was convicted, fined Rs 20 and, for default, ordered to undergo simple imprisonment for one month. Accused numbers 4, 7 and 8 were also convicted and each fined Rs 300, with default imprisonment of six months for numbers 4 and 7, and a fine of Rs 100 with three months imprisonment for number 8. Accused number 2 paid the fine, but the other three convicted persons, including the petitioner, did not. The four convicted persons subsequently engaged the appellant to file an appeal to the Sessions Court, which was presented on 8 October 1949. On the same day a petition was filed on behalf of accused numbers 4, 7 (the petitioner) and 8 seeking a stay of the fine realizations. The application for a stay was listed before the learned Sessions Judge on 10 October 1949, with notice directed to the Public Prosecutor, and the Judge ordered the petition to be suspended pending disposal, directing a hearing on 14 October 1949.

The Court recorded that the petitioner, who was accused as No 7, was found guilty along with the other convicted individuals and was ordered to pay a fine of three hundred rupees. The order specified that if the fine was not paid, the petitioner would face simple imprisonment for six months. Accused No 8 was similarly sentenced to a fine of one hundred rupees and was placed under the same default provision of simple imprisonment for three months if the fine remained unpaid. Among the convicted persons, Accused No 2 complied with the assessment and paid the required fine, whereas the remaining three convicted persons, including the petitioner, failed to make any payment. Following these convictions, the four convicted men retained the services of the appellant to file an appeal before the Sessions Court. The appeal was formally presented on 8 October 1949. On that same day, a petition seeking a stay on the recovery of the fines was filed on behalf of Accused Nos 4, 7 (the petitioner) and 8. The application for a stay was listed before the learned Sessions Judge on 10 October 1949, and the Judge directed that a notice be issued to the Public Prosecutor. The following day, 11 October 1949, the Judge issued an order stating, “Suspended pending disposal of this petition. Call on 14 October.” On 14 October 1949, a further order was made, indicating that “Execution of sentences [was] suspended till disposal of appeal.” The appeal was initially scheduled for hearing on 25 November 1949 but was repeatedly adjourned. Ultimately, the matter came up for final determination on 13 July 1950, at which point the Sessions Court allowed the appeal and set aside the convictions and sentences of all the appellants.

Subsequently, on 25 January 1951, the petitioner caused a registered notice (Exhibit A/2) to be sent to the appellant. In that notice the petitioner alleged that on 11 October 1949 the appellant had told him that the Court had refused to suspend the sentences and that, unless the fine was deposited, the petitioner would be committed to jail. Relying on that representation, the petitioner claimed that he paid the appellant a sum of three hundred rupees on the same day. The appellant, according to the petitioner, then issued a receipt (Exhibit A/1) bearing his own signature, which acknowledged the receipt of the three hundred rupees. The chit addressed to the petitioner read: “This day, you have paid to me a sum of Rs 300 (three hundred rupees only).” The document was signed by the appellant, and beneath the signature the date “11 October 1949” and the time “5-15 p.m.” were noted. The petitioner further asserted that the appellant deliberately concealed the fact that the order for payment of the fine had been stayed pending the appeal’s disposition and that the appeal had ultimately been allowed. The notice concluded with a warning that, should the appellant fail to return the three hundred rupees together with interest calculated at twelve percent per annum from 11 October 1949 to the date of repayment, the petitioner would be compelled to initiate additional proceedings, including a complaint to the High Court and the Bar Council regarding the appellant’s alleged unprofessional conduct.

The appellant stated that the petitioner’s notice, which the appellant received on 12 February 1951, threatened to recover the sum of three hundred rupees together with interest at twelve per cent per annum from 11 October 1949, and further warned that a complaint would be made to the High Court and the Bar Council regarding the appellant’s alleged unprofessional conduct. The appellant noted that on the following day, 13 February 1951, he issued three registered notices to the petitioner, identified as Exhibits A/3, A/4 and A/5. In Exhibit A/5 the appellant alleged that the petitioner was evading payment of an agreed fee of one hundred fifty rupees; he said that a firm demand for that fee had been made on 21 January 1951 with a deadline of 25 January 1951, after which the petitioner responded with the registered notice identified as Exhibit A/2. In Exhibit A/4 the appellant contended that the petitioner had instructed him to file a stay petition because the petitioner was unable to pay the fine, that the appellant had complied and obtained a stay order of which the petitioner was fully aware, and that consequently the allegations made in the petitioner’s notice Exhibit A/2 were false and highly defamatory. The appellant also asserted that the petitioner had been present in court on 13 July 1950 when the appeal was allowed, and therefore there was no requirement for the petitioner to pay any money to the appellant for the purpose of the fine. Accordingly, the appellant demanded that the petitioner withdraw the allegations and tender an unqualified apology immediately.

In Exhibit A/3 the appellant recounted that the petitioner had approached him on 6 October 1949 to engage his services as an advocate for filing an appeal. At that time the appellant was under financial pressure to meet an instalment of loan number 616 from the Land Mortgage Bank, Pedana. The petitioner offered to arrange a loan of three hundred rupees for the appellant at Pedana and asked the appellant to issue a chit in the petitioner’s favour, offering that the appellant’s clerk accompany the petitioner. The petitioner was unable to obtain the loan, but the chit referred to as Exhibit A/I remained with him. The appellant denied that any consideration was given for that chit. On 7 March 1951 the petitioner sent a general denial of the three notices issued by the appellant, and the appellant received this reply on 13 March 1951. On the next day, 14 March 1951, the appellant issued another rejoinder, identified as Exhibit A/7, in which he denied the petitioner’s reply and affirmed the truth of the statements contained in his three earlier notices. The appellant further alleged that when the petitioner failed to provide the amount mentioned in the chit Exhibit A/I, the appellant asked the petitioner to return the chit; the petitioner replied that the chit was missing, that he would search for it and return it later, and that consequently the appellant received on 16 October 1949 a hand-written letter, Exhibit D/8, in which the petitioner admitted his inability to supply the amount of three hundred rupees promised in the chit. The appellant emphasized that the petitioner had not responded to this hand letter, despite its reference to the nullification of the value of the chit.

In the course of the proceedings, the petitioner failed to answer a hand-written letter dated 16 October 1949 (Exhibit D/8) in which the appellant acknowledged that the petitioner could not furnish the Rs 300 mentioned in the chit (Exhibit A/I) as promised. The petitioner did not send any reply to this letter, even though the letter expressly referred to the hand-letter that, according to the appellant, nullified the value of the chit. Subsequently, on 27 March 1951, the petitioner filed a petition before the High Court alleging professional misconduct by the appellant. In that petition the petitioner asked the Hon’ble High Court to order an inquiry into the allegations and to take such action against the appellant as the Court deemed necessary and expedient. Along with the petition the petitioner attached a photograph of the chit (Exhibit A/I) and copies of the registered correspondence that had been exchanged between the petitioner and the appellant. Notably, even in this petition the petitioner did not refer to the hand-letter of 16 October 1949, nor did he expressly deny having written it. After the petition was presented, the appellant filed a written explanation before the High Court. The High Court, invoking section 10 of the Indian Bar Councils Act, referred the matter to the District Judge for an inquiry and for a report on the allegations. The District Judge then issued a notice to the appellant setting out five specific charges. The first charge alleged that the appellant had fraudulently suppressed an order of the Additional Sessions Judge, Krishna, at Masulipatam, which had suspended the payment of a fine of Rs 300 in Criminal Miscellaneous Petition No 180 of 1949, filed under Criminal Appeal No 82 of 1949, against the petitioner, who was the seventh accused. The second charge alleged that, after suppressing the order, the appellant had told the petitioner that the Rs 300 fine must be deposited in court to avoid imprisonment, had received the Rs 300 from the petitioner, and had issued a receipt in the petitioner’s favour. The third charge alleged that, despite the appellant’s knowledge that the appeal had been allowed by the judgment dated 13-July-1950, the appellant failed to inform the petitioner that the appeal had been dismissed and that the conviction and sentence were confirmed. The fourth charge alleged that the appellant wrongfully retained the Rs 300 belonging to the petitioner, neither depositing it in court as represented nor refunding it despite repeated requests, even after the appeal had been allowed. The fifth charge alleged that the appellant falsely claimed not to have received the Rs 300 from the petitioner, while having passed a receipt in his favour, and later insisted that he wanted to borrow the amount from the petitioner during the advocacy relationship, an act prohibited by law.

In the present case the petitioner alleged that he had handed over a sum of three hundred rupees to the advocate, that the advocate had issued a receipt in his favour for that amount, and that subsequently the advocate claimed he wanted to borrow the same sum from the petitioner while the professional relationship between advocate and client was still in existence, a course of conduct that is expressly prohibited by law. To support these allegations the petitioner examined himself, identified in the record as plaintiff-witness 1, and also called his brother, Potharaju, identified as plaintiff-witness 2, to testify on his behalf. The advocate, referred to as the appellant, presented his own evidence. He examined himself, recorded as respondent-witness 1, and also called his clerk, D. Venkatarangam, recorded as respondent-witness 2. In addition, he called Kameswararao, who was the secretary of the Vadlamannadu Co-operative Land Mortgage Bank at Pedana, recorded as respondent-witness 3, and Venktadri, a clerk employed by an advocate, recorded as respondent-witness 4, to give evidence in support of his defence. After reviewing the entire body of evidence, the learned District Judge held that the testimony of the petitioner and his brother lacked credibility and was not acceptable. The judge found no reason to reject the testimony of the appellant, his clerk, and the other witnesses produced by the appellant. Consequently, the judge concluded that the prosecution had not satisfactorily proved that the appellant was guilty of any of the charges that had been framed against him. Accordingly, the District Judge prepared a report reflecting these findings. The matter was then referred to a Special Bench of the Madras High Court. The Special Bench readily accepted the findings of the learned District Judge with respect to charges numbered one, two, and three, expressing no hesitation in doing so. The High Court judges observed that little reliance could be placed on the complainant’s own veracity and, in agreement with the District Judge, held that the appellant was not guilty of the first three charges. When the High Court turned to the remaining two charges, the judges noted several important facts. First, two separate receipts had been issued for two sums of three hundred rupees each, and each receipt corresponded exactly to the fine amount imposed on the fourth and seventh accused, identified as the petitioner. Second, the date recorded on the payment receipts was the eleventh of October, 1949, which was the date on which the petitioner and the fourth accused were required to deposit the fine. The judges were particularly struck by the fact that the chit labelled Exhibit A/I had been allowed to remain in the petitioner’s possession. They also observed that, if the arrangement was for the appellant’s clerk to issue a formal stamped receipt after receiving the money, there would have been no need to issue an informal receipt in favour of the petitioner beforehand. Moreover, the judges pointed out that none of the three notices dated the thirteenth of February, 1951, contained any reference by the appellant to the hand-letter, Exhibit D/8, dated the sixteenth of October, 1949. The High Court concluded that the appellant’s failure to mention this hand-letter in his earliest reply raised serious doubts about the document’s authenticity, and therefore the court could not rely on it as a true statement of facts admitted by the petitioner. The court also highlighted several other minor inconsistencies that suggested the improbability of the appellant’s version of events.

In the earlier proceedings, the High Court concluded that the appellant had actually received a sum of three hundred rupees from the petitioner on 11 October 1949, a receipt being evidenced by the chit marked Ex A/1, which the appellant himself had acknowledged. On the basis of that finding, the High Court determined that the offences identified as charge numbers four and five were proved against the appellant and consequently ordered that he be prohibited from practising as an advocate for a period of five years. The appellant has now filed this appeal after obtaining special leave to approach this Court. Both sides were represented by learned counsel, and the evidentiary material was placed before us for consideration. While we note that certain facts presented by the appellant cast doubt on his own version of events, we also observe that the High Court overlooked several material facts that bear directly on the credibility of the petitioner’s narrative. It is correct that the appellant did not mention the hand-letter identified as Ex D/8 in his replies Ex A/3, Ex A/4 and Ex A/5 to the petitioner’s letter Ex A/2; however, he did refer to the same hand-letter in his rejoinder Ex A/7 dated 14 March 1951. It is noteworthy that the petitioner never responded to that rejoinder to refute the specific allegations made by the appellant, and he also failed to challenge the authenticity of the hand-letter Ex D/8 in the petition itself. In his testimony the petitioner affirmed that the signature appearing on the hand-letter was indeed his, but he claimed that the appellant had taken that signature on a blank sheet of paper, persuading the petitioner to sign under the pretense that it would serve as a Vakalatnama. This explanation is difficult to accept, especially because the petitioner, having previously acted as an accused in a trial court, was aware that a Vakalatnama is not required in criminal matters. Moreover, none of the other appellants were called as witnesses to corroborate the claim that any of them had furnished a signature on a blank document. Additionally, the petitioner was present in the courtroom on 11 October when the interim stay order was pronounced; the chit Ex A/1 bears the time “5-15 p.m.” beneath the appellant’s signature, indicating that the document was prepared after court hours. It is therefore implausible that the petitioner would have handed over three hundred rupees to the appellant, who was newly engaged as his advocate, after the stay order had already been issued earlier that day. It is also significant that the fourth accused, who is alleged to have paid a similar sum of three hundred rupees to the appellant for the same purpose, was never called as a witness to substantiate the petitioner’s and his brother’s statements. The petitioner’s capacity to produce the sum of three hundred rupees is a crucial question in this matter. The petitioner is not a person of means; he alleges that he

The petitioner asserted that he had raised the amount of three hundred rupees by selling some miscellaneous gold. No goldsmith or shrove was called to produce account books or to give testimony that would corroborate the statements of the petitioner and his brother. In fact, the petitioner was unable to name any shroff to whom he supposedly sold his gold. The High Court failed to consider this deficiency, and because there was no satisfactory evidence showing that the petitioner possessed the means to pay three hundred rupees, it would be extremely risky to accept that the payment of three hundred rupees by the petitioner to the appellant had been proved merely because of certain weaknesses in the appellant’s version of events. The appellant’s claim that he required six hundred rupees to be paid to the Land Mortgage Bank was supported by the secretary of that bank, whose evidence (recorded as R.W. 3) indicated that the appellant had informed him that he had only managed to raise three hundred rupees and that a person who had promised to arrange a loan of three hundred rupees had failed to do so. The secretary further advised the appellant that, since an excess payment had been made in 1948 toward the principal, it would be sufficient if the appellant paid the amount of three hundred seventy-seven and nine annas, which the appellant subsequently did. Bank records confirmed that only three hundred seventy-seven and nine annas had actually been paid into the bank on 4 November 1949.

If the petitioner had indeed handed three hundred rupees to the appellant, there would have been no reason for the appellant not to have paid the full six hundred rupees toward his liability to the bank. The learned District Judge, having had the advantage of observing the witnesses and hearing the evidence, found the testimony of the petitioner and his brother not credible, and there is no compelling reason for this Court to depart from that view. On the facts and circumstances, the Court concluded that charges four and five had not been properly proved against the appellant, or, at the very least, that the appellant was entitled to the benefit of the doubt. Accordingly, the order passed by the High Court was reversed, and the complaint against the appellant was dismissed as not proved. Before concluding the appeal, the Court noted that it was wholly inappropriate for the appellant to have made the Honourable Judges of the Madras High Court respondents to this appeal. While noting that in certain contempt cases judges have been made parties, the Court refrained from expressing an opinion on the propriety of that procedure, but it was of clear opinion that in an appeal arising out of a proceeding under the Bar Councils Act the appropriate parties should be limited to those relevant under the statutory provisions.

The Court observed that, in proceedings of this nature, the correct parties to be joined must include the advocate who is the subject of the complaint, the complainant where one exists, the Bar Council or its secretary, and the Advocate-General of the State that is concerned. It further explained that the statutory scheme requires that notices be issued to each of these persons or entities under the provisions of section twelve three of the Indian Bar Councils Act. The Court noted that the advocate concerned is a necessary participant because the proceedings directly affect his or her professional standing. It added that the complainant, if any, must be a party because the allegations originated from that individual and the complainant’s interests must be represented. The Bar Council or its secretary was identified as a required party because the Council is the statutory body that regulates the conduct of advocates and must be kept informed of disciplinary matters. The Court stressed that the Advocate-General of the relevant State must also be joined because the law mandates that notices be served upon that office under the cited statutory provision. By joining these parties, the Court said, the procedural requirements of the Act are satisfied and all interested parties receive proper notice. After setting out these procedural requirements, the Court concluded that the appeal filed by the appellant was properly before it. Consequently, the Court allowed the appeal and set aside the order that had been made by the lower court. The decision thereby affirmed that the appeal should succeed on the basis that the proper parties were not initially joined as required by law.