T. A. KATHIRU KUNJU versus JACOB MATHAI & ANR.

Citation: [2017] 2 S.C.R. 516 · Decided: 16-02-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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[2017] 2 S.C.R. 516 
T. A. KATHIRU KUNJU 
v. 
JACOB MATHAI & ANR. 
(Civil Appeal No. 3860 of2007) 
FEBRUARY 16, 2017 
[DIPAK MISRA AND R. BANUMATHI, JJ.) 
Advocates Act. 1961 - s. 38-Professional misconduct - Gross 
negligence - Allegation by the complainant that he handed over 
cheque to appellant-advocate to initiate criminal action u!s. 138 NJ 
but cheque was not returned to him - Order by the Disciplinary 
Committee of the Bar Council of India that appellant guilty of gross 
negligence in discharge of his professional service to the client since 
he failed to get the acknowledgement from the complainant for 
having returned the cheque - imposition of punishment of reprimand 
and fine - Correctness of - Held: Nobility, sanctity and ethicality 
of the profession has to be kept uppermost in the mind of an 
Advocate - In view thereof his conduct has to be weighed - On 
scrutiny of the evidence, act of the appellant cannot be treated to 
be in the realm of gross negligence. but only one of negligence -
Thus. the order passed by Disciplinary Committee of the Bar Council 
of India set aside. 
Allowing the appeal, the Court 
HELD: 1.1 The concept of "gross negligence" cannot be 
construed in a narrow or a restricted sense. It is because honesty 
of an Advocate is extremely significant. The conduct of an 
Advocate bas to be worthy so that be can be caJJed as a member 
of the noble fraternity of lawyers. It is bis obligation to look after 
· the interest of the litigant when is entrusted with the responsible 
task in trust. There can be no doubt .that nobility, sanctity and 
etbicality of the profession bas to be kept uppermost in the mind 
ofanAdvocate. Keeping that primary principle in view, bis conduct 
bas to be weighed. There the approach of appreciating the 
evidence brought on record and the yardstick to be applied, 
become quite relevant. [Paras 12, 14) (523-B-C, 524-C) 
1.2 On a studied scrutiny of the evidence, the act of the 
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T. A. KATHIRU KUNJU v. JACOB MATHAI & ANR. 
appellant cannot be treated to be in the realm of gross negligence. 
It would be only one of negligence. The tenor of the impugned 
order, puts the blame on the appellant on the foundation that he 
had not received the acknowledgment. He has offered an 
explanation that he had given the cheque to the police. There 
has been no delineation in that regard. That apart, there is no 
clear cut analysis on deliberation on gross negligence by the 
advocate. The Disciplinary Committee found the appellant guilty 
of gross-negligence as he had failed to get the acknowledgment 
from the complainant-respondent. In the obtaining factual matrix; 
therefore, the conclusion arrived at by the Disciplinary Authority 
of the Bar Council of India that the negligence is gross, cannot 
be accepted. [Para 17] [525-E-G] 
1.3 The order passed by the Disciplinary Committee of the 
Bar Council of India is set aside. Though the order is set aside, it 
is agreed that the amount paid to the complainant need not be 
refunded. The amount that has been deposited to (~e Bar Council 
oflndia would be refunded by the Bar Council oflndia. (Para 18] 
(526-A-B] 
Mr. 'P 'an Advocate, Re v. AIR 1963 SC 1313 : [1964] 
SCR 697; P.D. Khandekar v. Bar Council of 
Maharashtra, Bombay & Ors. (1984) 2 SCC 556 : 
[1984] 1 SCR 414; Sanjiv Datta Dy. Secy. Ministry of 
In.formation & Broadcasting, In re. (1995) 3 SCC 619 : · 
[1995] 3 SCR 450; Dhanraj Singh Choudhary v. 
National Vishwakarma (2012) 1 SCC 741 : [2011] 16 
SCR 240 - referred to. 
Case Law Reference 
(1964] SCR 697 
referred to 
Para 7 
[1984] 1 SCR 414 
referred to 
Para 7 
(1995] 3 SCR 45.0 
referred to 
Para 12 
(2011] 16 SCR 240 
referred to 
Para 13 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3860 
of2007. 
From the Judgment and Order dated 15.10.2006 of the Bar Council 
oflndia in BC! TR Case No. 138 of2005. 
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SUPREME COURT REPORTS 
(2017] 2 S.C.R. 
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San jay Parikh, N. Susan Thomas, Ms. Srishti Agnihotri, Ms. Anitha 
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Shenoy, Ms. Surbhi Agarwal, Advs. for the Appellant. 
Mrs. K. Sarada Devi, Adv. for the Respondents. 
The Judgment of the Court was delivered by 
DIPAK MISRA, J. ) . The present appeal preferred under 
Section 38 of the Advocates Act, 1961 (for brevity, 'the Act') assails the 
correctness of the order dated 15.10.2006 passed by the Disciplinary 
Committee of the Bar Council oflndia in BC! TR Case No.138 of2005 
whereby the said
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