HARISH CHANDRA TIWARI versus BAIJU

Citation: [2002] 1 S.C.R. 83 · Decided: 08-01-2002 · Supreme Court of India · Bench: K.T. THOMAS · Disposal: Disposed off

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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HARISH CHANDRA TIWARI 
A 
v. 
BAIJU 
JANUARY 8, 2002 
[K.T. THOMAS AND S.N. PHUKAN, JJ.] 
B 
Advocates Act, 1961-Sections 35 and 38 
Professional misconduct-Misappropriation of client's money-Filing C 
of forged affidavit on behalf of the client-Disciplinary Committee held him 
guilty of committing breach of trust-Suspended for three years-On appeal 
finding of Disciplinary Committee upheld-However, punishment inadequate 
in proportion to the gravity of the misconduct-Hence enhanced to removal 
from the roll of advocates. 
Respondent, a client of appellant-advocate, filed complaint against 
appellant in State Bar Council alleging that appellant had mis-appropriated 
D 
his asset which the appellant had withdrawn from the Court in his case . 
Appellant defended his case stating that he had paid the amount to the 
respondent. Appellant filed an affidavit purporting to be that of respondent E 
stating therein that a compromise had been arrived at between him and the 
respondent. T.1e respondent on being summoned by the Disciplinary 
Committee disowned the affidavit, and repudiated the alleged compromise and 
denied having received any amount from the appellant. 
The complaint and the proceedings stood transferred to Bar Council of 
India. The Disciplinary Committee found that appellant had withdrawn the 
amount from the Court and had not paid the same to the respondent and thus 
guilty of wrong professional conduct and had committed breach of trust which 
F 
an advocate enjoys; and that the affidavit was a forged one. Thus it imposed G 
punishment of suspending him from practice for 3 years. 
In appeal, this Court gave notice to the appellant to show cause why the 
punishment be not enhanced to removal from the roll of the Bar Council of 
the State. 
83 
H 
84 
SUPREME COURT REPORTS 
[2002] l S.C.R. 
A 
Disposing of the appeal, the Court 
HELD: I. The finding of the Disciplinary Committee does not require 
any interference in this appeal. The factual position is so strong against the 
appellant that he could not show a single circumstance to accept his defence 
B that he had paid the amount to the client. [87-F-G) 
2.1. Punishment is enhanced to removal of the name of the appellant 
from the roll of the advocates since the punishment awarded is not adequate 
in proportion to the gravity of the misconduct Section 38 of the Act empowers 
the Supreme Court to "pass such order including an order varying punishment 
C awarded by the Disciplinary Committee of the Bar Council of India as it deems 
fit." The condition for varying the punishment awarded by the Bar Council of 
India is that if such variation is to prejudicially affect the appellant he should 
be given a reasonable opportunity of being heard. In the present appeal the 
Court gave notice to the appellant to show cause why the punishment should 
D not be enhanced to removal from the roll of the Bar Council of the State. 
[88-A-B-C) 
2.2. Among the different types of misconduct envi~aged for a legal 
practitioner misappropriation of the client's money must be regarded as one 
E of the gravest. In his professional capacity the legal practitioner has to collect 
money from the client towards expenses of the litigation, or withdraw money 
from the Court payable to the client or take money of the client to be deposited 
in Court. In all such cases, when the money of the client reaches his hand it 
is a trust. If a public servant misappropriates money he is liable to be punished 
under Prevention of Corruption Act, with imprisonment which shall not be 
F less than one year. He is certain to be dismissed from service. But if an 
advocate misappropriates money of the client there is no justification in de-
escalating the gravity of the misdemeanour. Perhaps the dimension of the 
gravity of such breach of trust would be mitigated when the misappropriation 
remained only for a temporary period. There may be justification to award a 
G lesser punishment in a case where the delinquent advocate returned the money 
before commencing the disciplinary proceedings. [88-H; 89-A-B-C) 
2.3. In the present case, the misappropriation remained unabated even 
after the disciplinary proceedings commenced and it continued even till the 
date of decision as the delinquent advocate did not care to return even a single 
H pie to the client. The misconduct of the appellant advocate became more 
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H.C. TIWARI v. BAIJU [THOMAS, J.) 
85 
aggravated when he determined to forge an a

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