4/22/2021 Mrs. Roma Banerjee vs Ushapati Banerjee, Muktear, ...

on 29 January, 1954

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Cites 5 docs
The Legal Practitioners Act, 1879
Section 14 in The Legal Practitioners Act, 1879
Section 13 in The Legal Practitioners Act, 1879
The Indian Penal Code
Section 8 in The Legal Practitioners Act, 1879

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Calcutta High Court restitution
Mrs. Roma Banerjee vs Ushapati Banerjee, Muktear, ... on 29 January, 1954 effect of compromise

Equivalent citations: AIR 1958 Cal 692, 1958 CriLJ 1478

Author: J Mitter
Bench: S Lahiri, J Mitter

JUDGMENT J.P. Mitter, J.

1. This Reference under Section 14 of the Legal Practitioners Act is by the Additional Sessions 'Judge,
First Extra Court, Alipur.

2. The case against the respondent Mukhtear Ushapati Banerjee is as follows:

3. He was engaged by one Mrs. Roma Banerjee to conduct a prosecution by her against one Mrs.
Anjali Lindsay and her husband for cheating. The case ended in the conviction of the accused persons
whereupon they preferred an appeal to the Sessions Judge, 24-Parganas. At this stage, the respondent
represented, to the complainant Mrs. Roma Banerjee that a senior lawyer should be engaged on her
behalf and induced her to pav to him Rs. 75/- as the fee of the senior lawyer to be engaged in the case.
As for a long time Mrs. Banerjee received no information as to the fate of the said appeal, she caused
enquiries to be made and discovered that the respondent Mukhtear had, in the meantime, without her
knowledge, compromised the said criminal appeal on the accused, persons paying a sum of Rs. 1,500/-
-. The appeal had been transferred for disposal to the said Additional Sessions Judge and it was before
him that the compromise concerned was effected. Pursuant to the compromise, the accused persons
paid to the respondent Rs. 500 on 24-5-1952, Rs. 5007- on July 2, 1952 and Rs. 500 on July 19, 1952,
It was on the last mentioned date that the appeal was disposed of in terms of the compromise, and no
senior lawyer was at any stage engaged on Mrs. Banerjee's behalf. These sums aggregating Rs. 1,500/-
were received lay the respondent against receipts which were written out by him in the margin of three
petitions which the appellant accused persons filed in Court. Neither the sum of Rs. 1,500/- nor any
part thereof, was, however, made over by the respondent to his client, Mrs. Banerjee. Upon discovery
that the appeal had been compromised by the respondent, Mrs. Banerjee caused a pleader's notice,
dated 31-10-1952, to be served upon the respondent; yet the respondent made no restitution and offered
no explanation as to his conduct. This led Mrs. Banerjee to move the learned District Judge for
appropriate action against the respondent under the Legal Practitioners Act. The learned District Judge
forwarded this application to the said Additional Sessions Judge for disposal.

4. In due course, the respondent was furnished with a copy of the application under the Legal
Practitioners Act and was asked to show cause why he should not be dealt with under that Act. By a
petition filed on March 5, 1953, the respondent showed cause in which it was, inter alia, stated that the

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allegation as to the payment of Rs. 75/- as fee for engaging a senior lawyer was a myth, that the
allegation of compounding the case without the knowledge of the petitioner and of misappropriating
the amount of Rs. 1,500/- paid by the accused was totally false, and that the case sought to be made out
against the respondent would be negatived by overwhelming evidence not only of very respectable
witnesses but also of a documentary nature. On the respondent's application for time, the hearing of the
petition under the Legal Practitioners Act was fixed for May 23, 1953. The respondent, however, chose
not to appear on that occasion. Mrs. Banerjee, the complainant, and three persons, including Mr.
Ramesh Chandra Rai, pleader, who had appeared for the accused persons in the said criminal appeal,
were examined. Certain records or documents were proved and tendered as evidence. On three
subsequent dates, namely, May 30, 1953, June 6, 1953, and June 13, 1953, the respondent asked for
time to effect a compromise with Mrs. Banerjee as to the charge of misconduct. The learned Judge
allowed time^ on two occasions, but disallowed the respondent's petition of 13th of June, The matter
was finally fixed for 15th June for arguments. On 18th June, the reference was made to this Court
recommending that the respondent Mukhtear be suitably punished under Section 13 of the Legal
Practitioners Act.

5. The charge of misconduct was on three counts : (a) The respondent induced his client to pay Rs. 75/-
to engage a senior lawyer. No such lawyer Was engaged and the money was retained by the
respondent.

(b) The criminal appeal was compromised without the knowledge, and consequently without the
consent, of the respondent's client.

(c) The sum of Rs. 1,500/- being the consideration for the compromise, was retained by the respondent.

6. On the evidence adduced, there can be no doubt that this charge of misconduct was proved.
Although the allegation that Rs. 75/- had been paid for engaging a senior lawyer was characterised by
the respondent as a myth and false to the knowledge of the petitioner, the evidence disclosed that the
said sum had been paid by a cheque which the respondent himself cashed. It is said that the denial by
the respondent in his show-cause petition of the allegation concerned did not involve a denial of the
receipt of the money. It must be observed, however, that the respondent did not put forward any case of
his own as to why the said sum was paid or what it was meant for. As to the allegation of effecting the
compromise without the knowledge and authority of the respondent's client, the respondent's case in
the petition showing cause was a mere denial coupled with the statement that the falsity of the case
against him would be proved by overwhelming evidence, both oral and documentary As to the
allegation that the sum concerned was not paid to the client, no specific case was made out in the
show-cause petition. It appears, however, from a subsequent petition filed by him that the respondent,
according to his version, was at all material times ready and willing to pay the amount to his client, but
that the latter refused to accept it with a view to preferring a blackmailing charge against the
respondent. It is not understood why Mrs. Banerjee should want to blackmail her own lawyer whc>'
had successfully prosecuted the case in the Court of first instance. If she refused to accept the money, it
would be reasonable to suppose that she refused to do so as she had not been a party to the compromise
The evidence of Mr. Ramesh Chandra Rai, the accused's pleader, was to the effect that he had asked the
respondent to bring his client to Court for the purpose of effecting the compromise, but that the
respondent did not do so and Mrs. Banerjee never1 appeared in Court. This evidence would point to/
Mrs. Banerjee not having been a party to the compromise. As I said, the evidence adduced in the case
was sufficient to bring home the charge of misconduct preferred against the respondent.

7. Before us, it was argued by Mr. Purnendu Sekhar Basu that the evidence as to misconduct was ex
parte and untested by any cross-examination and that the respondent had not been given an opportunity
either to challenge that evidence or to adduce evidence on his own behalf. In support of this argument,
we were taken through the order sheet and it appeared to us at one stage that there was some doubt as

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to whether the respondent had been given as fair, an opportunity to vindicate his character as should
have been given. On a reference to the records of this case, however, it transpired that it was on his
own petition of 25-4-1953, that the hearing; of the case was fixed for 23-5-1953. On that date, as I
have said before, the respondent did not choose to appear. It cannot, therefore, be said that the
respondent had not had an opportunity to challenge the evidence which was given on the complainant's
behalf on 23-5-1953. On 30th May and 6th June, the respondent asked for further time to effect a
compromise. His prayer made on each such occasion was granted, but his prayer made on 13-6-1953,
for yet more time was, however, disallowed, in our view, rightly. Although the order sheet is silent on
the point, it appears that on 13th of June the respondent was represented by a lawyer who offered to
effect a compromise with Mrs. Banerjee by paying her the sum of Rs. 1,500/-, which the respondent
had taken from the accused persons. This offer was accepted by the lawyer who appeared for Mrs.
Banerjee, whereupon the lawyer for the respondent obtained leave of the Court to go out of the Court
premises to fetch the money, but he did not return. Accordingly, the case was adjourned to 15th June
for arguments. In our view, the learned Additional Sessions Judge did everything possible to help the
respondent, apd it cannot, therefore, be said that the respondent was not afforded a fair opportunity to
defend himself. On the facts, we must hold that the charge of misconduct was amply proved against the
respondent.

8. The next point urged by Mr. Basu was that the respondent was at all times ready and willing to make
restitution and that he was prepared to do so here. We pointed out to Mr. Basu that such restitution
could be taken into account in mitigation of the punishment to which the respondent had exposed
himself by reason of the misconduct proved in the case. For that purpose Mr. Basu asked for time till
today. Mr. Basu has again asked for time till next Wednesday, but we do not feel justified in acceding
to that request. We can, therefore, take it that the respondent Mukhtear has failed to make restitution.

9. The next point urged on behalf of the respondent was that the reference was incompetent because it
had not been made through the District Judge, as required under Section 14 of the Legal Practitioners
Act. Although this is a very technical point, we have given this matter our serious consideration and
have come to the conclusion that the contention put forward by Mr. Basu is without substance. Mr.
Basu's point is that the last paragraph of Section 14 requires that every report made to the High Court
should be through one of the appropriate functionaries mentioned in Clauses (a) to (d) and that each
such report shall be accompanied by the opinion of each Judge, Magistrate or Revenue authority as the
case may be, through whom or which it is required to be made. In this case, according to Mr. Basu, the
reference concerned was not made through the District Judge and consequently it was not accompanied
by his opinion. Mr. Das, learned Government Pleader, appearing on behalf of the State, argued that as
the Additional Sessions Judge had, except in administrative matters, concurrent jurisdiction with the
Sessions Judge, the reference concerned must be deemed to be a reference by the Sessions Judge. This,
according to Mr. Das, is clear by reason of the provisions of Section 8 (2) of Bengal, Agra and Assam
Civil Courts Act, 1887. In our view, the requirement that every report made to the High Court under
the section shall be made through one or other of the functionaries mentioned in Clauses (a) to (d)
applies in those cases only which are specified in those clauses. In our view, there is ample power
under the first part of the section for an Additional Sessions Judge, to whom a matter under the Legal
Practitioners Act has been transferred for disposal, to make a report direct to the High Court without
any further intervention on the part of either the District Judge or the Sessions Judge.

10. The last point urged on behalf of the respondent was that a proceeding under the Legal
Practitioners Act should not be initiated where the conduct complained of amounts to a criminal
offence, for in such a case the legal practitioner concerned should be proceeded against in the criminal
Court. It is not every misconduct which falls within the mischief of the Penal Code. Professional
misconduct is of infinite variety, and it is of the utmost importance in the administration of justice that
proved professional lapses which shake the confidence of the litigants should be punished. The

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misconduct proved in this case does not appear to us to amount to any specific criminal offence. The
cases cited by Mr. Basu on the point are, therefore, irrelevant and in our view the misconduct in the
case should be dealt with by the disciplinary jurisdiction of this Court.

11. In view of all the circumstances of this case, we are prepared to take a lenient view of the matter
and would, therefore, suspend the respondent Mukhtear from practice for a period of only six months
from today.

S.C. Lahiri, J.

12. I agree.

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