Bombay High Court: Stating that it is the duty of every Advocate to uphold professional integrity so that citizens can legally secure justice, the Division Bench of V.M. Deshpande and Amit B. Borkar, JJ., expressed that, professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated.
Applicants had invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure challenging the registration of FIR for an offence punishable under Sections 420, 406, 409 and 120B of the Penal Code, 1860 read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999.
It was submitted that applicants and non-applicant 3 resolved their dispute amicably and therefore, the Court proceedings were required to be set aside.
Post-dated cheques for the amount to be paid to non-applicant 3 by the applicants were handed over to Advocate Anilkumar Mulchandani. Further, it was added that, till 23-3-2022, the post-dated cheques were not handed over to non-applicant 3.
During the course of hearing, Anilkumar Mulchandani, Advocate submitted that non-applicant 3 had not demanded post-dated cheques from him.
Whether the non-applicant 3, in fact, demanded the cheques or not and whether Anilkumar Mulchandani, Advocate refused to hand over the cheques to non-applicant 3?
Analysis, Law and Decision
Bench in view of the clear language of the Deed of Settlement (absence of clause to withhold post-dated cheques till the release of the applicant on bail or quashing of FIR) and considering the affidavit filed by the non-applicant no. 3 denying the grant of permission to withhold cheques till the release of the applicant on bail or quashing of FIR, prima facie, it appears that Shri Anilkumar Mulchandani, Advocate, had refused to hand over the cheques in spite of demand made by non-applicant 3.
Since Anilkumar Mulchandani, Advocate was not justified in keeping the post-dated cheques with him, the Court expressed that it is constrained to refer the present case to the Bar Council of Maharashtra and Goa to hold an inquiry as to whether the act of the Advocate withholding post-dated cheques, amounts to misconduct within the meaning of Section 35 of the Advocates Act, 1961?
High Court remarked that,
“We are perturbed by the act of the Advocate to keep valuable security owned by the Client with him.”
The term misconduct means wrongful gain and not ere error of judgment.
One of the main objectives behind Section 35 of the Advocates Act is to prevent the exploitation of clients at the receiving end of the Advocate’s services and maintain the legal profession’s integrity.
The Bench also observed that, the lawyer-client relationship is a fiduciary one; any act which is detrimental to the legal rights of clients needs to be punished.
The Supreme Court explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act in the case of Pralhad Saran Gupta v. Bar Council of India, (1997) 3 SCC 585, wherein the Supreme Court has held that retaining amount by the Advocate which is deposited with him on behalf of the decree-holder amounts to misconduct.
Elaborating further, the High Court opined that while dealing with money or any other articles or documents entrusted with the Advocate, he is expected to keep in mind the high standards of the professions and its value practised for centuries.
The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The Advocate should not commit any act by which a litigant could be deprived of his statutory and constitutional rights on account of the sublime position conferred upon him under the judicial system in the country.
On noting the above, the Bench directed the Bar Council of Maharashtra and Goa to hold an inquiry into the allegations made by non-applicant 3 against Advocate Anilkumar Mulchandani.
As the applicants sought permission to withdraw the present application unconditionally, Court disposed of this application as withdrawn. [Pankaj v. State of Maharashtra, 2022 SCC OnLine Bom 771, decided on 6-4-2022]
Advocates before the Court:
Shri Anil Mardikar, Senior Advocate a/w. Shri P. V. Navlani & Shri Rommill Jain, Advocate for applicants.
Shri T. A. Mirza, APP for non-applicant nos. 1 and 2/State.
Shri Anilkumar Mulchandani, Advocate for non-applicant no. 3.