http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 10

Vs.

RESPONDENT:
D. KANIKARAM AND OTHERS

DATE OF JUDGMENT:
10/04/1963

BENCH:
AYYANGAR, N. RAJAGOPALA
BENCH:
AYYANGAR, N. RAJAGOPALA
SINHA, BHUVNESHWAR P.(CJ)
SHAH, J.C.

CITATION:
1964 AIR 244 1964 SCR (3) 1
CITATOR INFO :
R 1985 SC 28 (30)

ACT:
Professional misconduct--Complaint--Enquiry--Advocate
misappropriating client’s money--If guilty of
professional misconduct--Proceeding in respect of
professional misconduct and proceeding in a criminal Court-
Object of-Differentiation-Punishment-Legal practitioners
Act, 1879 (18 of 1879), ss. 12, 13--Indian Bar Councils
Act, 1926 (38 of 1926), s. 10 (2).

HEADNOTE:
The respondents and one other Kagga Veeraiah, were
plaintiffs in a suit for possession of certain lands and
the appellant was their Advocate. Tim suit was dismissed
and an appeal was preferred therefrom to the Subordinate
Judge. Pending the disposal of the appeal, the court
directed the sale proceeds of the standing crops on the suit
land to be deposited into court, and a sum of Rs. 1,600/-
was so deposited. The plaintiff’s appeal was allowed and
the defendants preferred a second appeal to the High Court.
Pending disposal of the second appeal, plaintiff’s
application for withdrawing the amount was allowed by the
court on furnishing security of immovable property. A
cheque petition was filed which was allowed and thereafter a
cheque for Rs. 1,452/4/- was issued in favour of the
appellant. The appellant an Advocate admitted that he
had received and. had cashed the cheque on behalf of his
clients who were entitled to be paid this sum. The second
appeal was allowed by the High Court and the plaintiff’s
suit was dismissed, as a result of which the plaintiffs had
to refund the sum of the defendants in the suit. The
plaintiffs made a written demand on the appellant for the
proceeds of the cheque that had been cashed by him and not
paid over to them. The appellant in reply claimed to have
paid over the sum to them on their passing a receipt which
happened to be in the bundle. of case-papers returned to
2
them. The respondents filed a complaint under as. 12 and
13 of the Legal Practitioners Act. The explanation of the
Advocate was called for and the District Judge was directed
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to hold an enquiry and forward his report to the High Court.
His report was that the appellant’s case was not
unbelievable and he was entitled to the benefit of doubt.
The matter was heard by a Bench of three Judges of the High
Court, who held him guilty of professional misconduct and
suspended him for five years from practice. In this
Court the appellant contended, (1) that the Bar Council
had not been consulted before the case was referred to the
learned District Judge for inquiry and report and this
vitiated the legality of the entire proceedings against the
appellant. (2) That the complaint filed by the respondents
on the basis of which action was taken against the appellant
was not shown to have been signed by them, nor properly
verified by them as required by the rules of the High Court.
(3) That as in substance the charge against the appellant
was misappropriation of moneys belonging to the clients,
the High Court should have left the complainants to their
remedy of prosecuting the appellant and should not have
proceeded to deal with him under s. 10 of the Bar Councils
Act. (4) That there was a procedural irregularity in the
mode in which the case against the appellant was conducted.
(5) That one of the plaintiffs--Kagga Veeraiah had himself
admitted in his evidence that he and others had received the
proceeds of the cheque which the appellant had cashed and
that in the face of this admission the High Court was
clearly wrong in finding that the appellant had failed to
pay over the money to his clients.
Held (1) that the fact that in the order of reference
of the proceedings under s. 10(2) of the Bar Councils Act,
to the District Judge, there is no explicit statement that
the Bar Council had previously been consulted, is not
decisive on the point. There would be a presumption of
regularity in respect of official and judicial acts and it
would be for. the party who challenges such regularity to
plead and prove his case. Since, this objection was not
raised in the High Court, even when the appellant applied
for a certificate, this Court will not entertain this
objection which rests wholly upon a question of fact.
(2) The complaint petition had been signed by the
respondents and properly verified and even otherwise since
the High Court was competent to initiate these proceedings
suo motu under s. 10(2) of the Act, the point raised is
wholly without substance.
(3) There is a clear distinction between cases where
the misconduct is one in relation to the practitioner’s duty
to
3
his client and other cases where it is not so. In the
former Class of cases the court would be exercising its
discretion properly if it proceeded to deal with the charge
as a piece of professional misconduct without driving the
complainant to seek his remedy in a criminal court. 80 far
as the facts and circumstances of the present case are
concerned, it must be held, that the High Court was fully
justified in proceeding against the appellant under the
provisions of s. 10 of the Bar Councils Act.
Chandi Charan Mitter a Pleader, In re. (1920) I.L.R. 47
Cal. 1115 and Emperor v. satish Chandra Singha, (1927)
I,L.R. 54 Cal. 721, distinguished.
Stephens v. Hills, [1842] 152 E.R. 368, referred to.
(4) No complaint, that the appellant was prejudiced by
the manner in which the inquiry was conducted in the matter
of the order in which the evidence was adduced, was made
either before the District Judge or before the High Court
and there is nothing on the record to suggest that any
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prejudice had occurred to the appellant.
(5) The evidence of Kagga Veeraiah was correctly
characterised by the High Court as devoid of truth and the
appellant, therefore, cannot rely on any admission of this
witness as evidence of the plaintiffs having received the
sum.
Having regard to the gravity of the offence, there is no
justification for reducing the period of suspension. The
appeal therefore, must be dismissed.

JUDGMENT:
CIVIL APPELLATE JURISDICTION:Civil Appeal No. 321 of
1962.
Appeal by special leave from the Judgment and order
dated August 4, 1959 of the Andhra Pradesh High Court in
Referred Case No. 29 of 1957..
M. Rajagopalan and K.R. Choudhri, for the appellant.
The respondent did not appear.
April 10. The Judgment of the Court was delivered by
AYYANGAR J.--This appeal has been filed by special leave of
this Court against the judgment of
4
the High Court of Andhra Pradesh by which the appellant who
is an Advocate was held guilty of professional misconduct
and had been suspended from practice for five years.
The facts relating to the misconduct charged were
briefly these: The three respondents before us and one
other--Kagga Veeraiah--were plaintiffs m O.S. 432 of 1951 on
the file of District Munsiff, Guntur in which a claim was
made for possession of certain lands. The appellant was the
Advocate for these plaintiffs. The suit was dismissed by
the Trail Court and an appeal was filed therefrom to the
Subordinate Judge, Guntur and pending the disposal of the
appeal there was a direction by the Court that the crops
standing on the suit-land be sold and the proceeds deposited
into Court. In pursuance of this order a sum of about Rs.
1,600/- was deposited into Court-on December 19, 1951. The
appeal by the plaintiffs was allowed by the Subordinate
Judge. The’ unsuccessful defendants preferred a second
appeal to the High Court, but meanwhile the plaintiffs
made an application for withdrawing the amount deposited in
Court. By virtue of interim orders passed by the Court they
were granted liberty, to withdraw the sum pending disposal
of the second appeal in the High. Court filed by the
defendants on furnishing security of immovable property.
The security was furnished and. the withdrawal was ordered.
A cheque petition E.A. 250 of 1952 was accordingly filed
which was allowed and thereafter a cheque was issued in
favour of the Advocate--the appellant before us--for Rs.
1,452/4/-, this being the sum remaining to the credit of the
plaintiffs after deduction of poundage etc. It was admitted
that this cheque was cashed by the appellant on April 23,
1953. The appellant did not dispute that. he cashed this
cheque on behalf of his clients or that the latter were
entitled to be paid this sum and the charge of
professional misconduct against the
5
appellant was that the Advocate had not made this payment in
spite of demands but that on the other hand he falsely
claimed to have paid them this sum.
To resume the narrative of the matters leading to these
proceedings, the second appeal before the High Court was
disposed of in August, 1955 and by the judgment of that
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Court the appeal was allowed and the plaintiff’s suit
dismissed. The plaintiffs had therefore to refund the sum
to the defendants in the suit. On February 8, 1956 the
plaintiffs made a written demand on the appellant for the
sum complaining that the cheque had been cashed by him but
that its proceeds had not been paid over. On April 14, 1956
the appellant replied to this notice claiming to have paid
over the sum to them on their passing a receipt and
stating.that the receipt happened to be in the bundle of
case-papers which had been returned to them.
But even before the receipt of this reply the three
respondents before us filed a complaint under ss. 12 and 13
of the Legal Practitioners Act alleging the non-payment of
the money and charging the Advocate with professional
misconduct in respect of it, and praying for an enquiry into
his conduct. The appellant was an Advocate and hence the
complaint was treated as one under s. 10 (2) of the Indian
Bar Councils Act, 1926. The explanation of the Advocate was
called for. and thereafter the District. Judge, Guntur was
directed. to hold an inquiry into the allegations of
professional misconduct against the appellant and forward
his report to the High Court. An elaborate inquiry was
thereafter held by the learned District Judge who, after
considering the .evidence, submitted a report recording his
conclusion that the appellant’s case was not unbelievable"
and that on that ground he was entitled to the benefit of
doubt. The matter then came up before the High Court for
consideration on this report. Some point
6
appears to have been made before the Court that certain
material witnesses had not been examined. Agreeing with the
submission they directed the District Judge to summon and
examine them and this was accordingly done, their
evidence was recorded and submitted to the High Court. The
matter was thereafter heard by a Bench of 3 Judges and the
learned Judges being of the opinion that the charge against
the appellant viz., that he did not pay over the amount of
’the cheque to his clients was clearly made out, held him
guilty of professional misconduct and imposed the punishment
of suspension from practice, as stated earlier. The
appellant then applied and obtained leave of this
court--special leave under Art. 136 to challenge the
correctness of these findings and that is how the matter is
before us.
Before proceeding further we desire to indicate the
nature of the jurisdiction of this Court in such matters and
in broad outline the principles which it would observe in
dealing with them. The jurisdiction exercised by the High
Court in cases of professional misconduct is neither civil
nor criminal as these expressions are used in Arts. 133 and
134 of the Constitution. In one aspect it is a jurisdiction
over an officer of the Court and the Advocate owes a duty
to the Court apart from his duty to his clients. In
another aspect it is a statutory power and we would
add a duty vested in the Court under s. 10 of the Bar
Councils Act to ensure that the highest standards of
professional rectitude are maintained, so that the Bar can
render its expert service to the public in general and the
litigants in particular and thus discharge its main
function of co-operating with the judiciary in the
administrance of justice according to law. This task
which is at once delicate and responsible the statute vest
in the High Court and therefore the primary responsibility
of ensuring it rests with it,
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This Court is in consequence most reluctant to interfere
with the orders of High Courts in this field, save in
exceptional cases when any question of principle is involved
or where this Court is persuaded that any violation of the
principles of natural justice has taken place or that
otherwise there has been a miscarriage of justice. Where
however none of these factors, are present, it is not the
practice of this Court to permit the canvassing of the
evidence on the record either for reappraising it or to
determine whether it should be accepted or not. The
findings of the High Court therefore on questions of fact
are not open before us and this Court would only consider
whether on the facts found, the charge of professional
misconduct is established.
Learned Counsel for the appellant urged before us
several grounds in support of the appeal but we consider
that none of them merits serious attention. It was first
submitted that the Bar Council had not been consulted
before the case was referred to the learned District Judge
for inquiry and report and that this vitiated the legality
of the entire proceedings against the appellant. Our
attention was drawn to the terms of s. 10 (2) of the Indian
Bar Councils Act reading:
"10. (2) Upon receipt of a complaint made to
it by any Court or by the Bar Council, or by
any other person that any such Advocate has
been guilty of misconduct, the High Court
shall, if it does not summarily reject the
complaint, refer the case for inquiry either
to the Bar Council, or, after consultation
with the Bar Council, to the Court of a
District Judge (hereinafter referred to as a
District Court) and may of its own motion so
refer any case in which it has otherwise
reason to believe that any such advocate has
been so guilty."
and the argument was that the matter could not have been
remitted for inquiry to a District Judge
8
unless the. statutory pre-condition of consultation. with
the Bar Council had taken place. It is not necessary to
consider in this case whether this provision for
consultation is mandatory or not but we shall assume that it
is so. There was however no hint of this objection to the
validity of the proceedings up to the stage of the appeal in
this Court. The question whether there has or has not been
a consultation is one of fact and if this point had been
raised in the High Court we would have information as to
whether there had been such consultation or not, and if
not why there was none. Even when the appellant applied to
the High Court for a certificate of fitness under Art. 133
(1)(c) this objection was not suggested as a ground upon
which the validity of the proceedings would be impugned.
In these circumstances we are not disposed to
entertain this objection which rests wholly upon a question
of fact. The fact that in the order of reference of the
proceedings under s. 10 (2)to the District Judge there is no
explicit statement that the Bar Council had previously been
consulted is not decisive on the point. There would be a
presumption of regularity in respect of official and
judicial acts and it would before the party who challenges
such regularity to plead and prove his case.
It was next contended that the complaint filed by the
respondents on the basis of which action was taken against
the appellant was not shown to have been signed by them, nor
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properly verified by them as required by the rules of the
High Court. We consider this objection frivolous in the
extreme. It was argued by the appellant before the High
Court that there was dissimilarity between the several
signatures of the three respondents found in the petition
sent by them and that to be found in the plaint etc., of
O.S. 432 of 1951 and that this was some proof that it was
not the respondents who were
9
really responsible for the petition but that someone
inimically disposed towards the appellant. The learned
Judges of the High Court rejected this submission in
these words:
"For one thing, we are unable to find any such
dissimilarity. Even so, that has not much of
a bearing on the question whether the
respondent (appellant) had discharged the
burden viz., of proving that he had made the
payment to the petitioners. This argument
would have had some force if the petitioners
had not given evidence against the
respondent. Further, no such suggestion was
put to any of the plaintiffs."
This is on the question of the dissimilarity of the
signatures on which rests the argument that the
respondents were not the complainants. Coming next to the
point about the verification of the complaint the matter
stands thus: The three complainants (the respondents
before us) originally filed a petition on March ?6, 1956
before the District Judge but this did not bear the
attestation of a gazetted officer or other authority as
required by the rules. This defect was made good by a fresh
petition which they filed before the District Judge on April
16, 1956. After the petition was signed by the three
petitioners they added a verification in these terms:
"We do hereby state that the facts stated
above are true to the best of our knowledge,
information and belief,"
and then they-signed again. These three signatures, they
made before the District Judge who attested their
signatures on the same day and when for-. warding this
complaint to the High Court on
10
April 18, 1956 the learned District Judge stated these facts
and added:
"The petitioners appeared before me on
April 16, 1956. I got them sign the petition
in my presence and I attested the same."
It is thus clear that they made three signatures in token
of their signing the petition, the verification and a
further affirmation before the District Judge who attested
the same. Learned Counsel did not suggest before us that
the District Judge was in error about the identity of the
parties who appeared before him and affixed the signatures
in three places in the complaint before him. It is because
of these circumstances that we have stated that this
objection was most frivolous. It is only necessary to add
that seeing that the High Court is competent to initiate
these proceedings suo motu under s. 10 (2) the point raised
is wholly without substance.
The next submission of learned Counsel was that as in
substance the charge against the appellant was
misappropriation of money belonging to the clients, the
learned Judges of the High Court should have left the
complainants to their remedy of prosecuting the appellant
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and should not have proceeded to deal with him under s. 10
of the Bar Councils Act. In support of this submission
learned Counsel referred us in particular to two decisions
of the Calcutta High Court reported in Chandi Charan
Mitter, a Pleader, In re (1), and Emperor v. satish Chandra
Singha (2).
We do not consider that the case before us furnishes an
occasion for any exhaustive review of the decisions upon the
subject or formulating finally the principles which govern
the exercise of the discretion by a Court to which a
complaint is made under s. 10 of the Bar Councils Act
whether it should
(1) (1920) I.L.R.47 Cal. 1115. C2) (1927) I.L.R. 54 Cal,
721.
11
proceed under it or leave the complainant to launch a
prosecution against the advocate and await the result of
such criminal proceedings.
We consider it sufficient to state this. The object of a
proceeding in respect of professional misconduct differs
totally from the object of a proceeding in a criminal court.
Proceedings under the Bar Councils Act and similar statutes
arc taken in order to.ensure that the highest standards of
professional conduct arc maintained at the bar. These
proceedings, though in a sense penal, arc solely designed
for the purpose of maintaining discipline and to ensure that
a person does not continue in practice who by his conduct
has shown that he is unfit so to do. It is not a
jurisdiction which is exercised in aid of the Criminal law
for the only question for the court to consider is whether
the practitioner has so misconducted himself as no longer to
be permitted to continue a member of an honourable and
responsible profession. The object of Criminal proceedings,
on the other hand, is to enforce the law of the land and to
secure the punishment of an offender. No doubt, if a
criminal prosecution is initiated in respect of the subject
matter of the complaint and the charge is held proved the
conviction might be a ground for a later proceeding under
the Bar Councils Act. No doubt, also, if the practitioner
is acquitted or discharged by a criminal court on the
merits, the facts would not be reinvestigated for the
purpose of rounding a charge of professional misconduct on
those very facts. The object of the two proceedings being
thus different, it is not any rule of law but merely a
matter .of discretion depending on the facts of each case as
to whether the Court would straightaway proceed to enquire
into the allegation of professional misconduct or leave it
to the complainant to prosecute the practitioner and await
the result of such a proceeding. It was not suggested by
Counsel for the appellant that it was incompetent for or
12
beyond the jurisdiction of the Court, ’to proceed with an
enquiry in a case where the misconduct charged against the
advocate or practitioner amounted to an offence under the
ordinary criminal law. Neither of the cases relied on lay
down any such proposition and is not of much assistance to
the appellant in the present case. It is sufficient to
extract the head-note to the report of the decision in
Chandi Charan Mitter (x), indicate that it bears no analogy
to the case now on hand. The relevant portion of the head-
note reads:
"Where the misconduct alleged has no direct
connection with the conduct of the pleader in
his practical and immediate relation to the
court, ordinarily, there should be a trial and
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conviction for criminal misconduct before
disbarment will be Ordered."
The charge against the practitioner in that case related to
a matter which had nothing to do with his relationship to
his clients, or the court, and in the circumstances it was
held that the direction would be properly exercised if the
initiation of professional misconduct proceedings awaited
the result of the prosecution. It is obvious that the case
before us is far different. Emperor v. Satish Chandra
Singha (2), was also a similar case. The charge against
the practitioner was of forging court records by
interpolating some words in an original plaint.
In the case now before us, however, the misconduct charged
is intimately connected with and arises out of the duty
which the Advocate owed to client. This distinction
between misconduct which is intimately connected with the
duties which the practitioner owes to his clients and cases
where it is not so connected as bearing upon the exercise of
the Court’s discretion to proceed or not to proceed
straightaway with an inquiry into the advocate’s
professional misconduct was emphasised by Lord
(1) (1920) I.L.R, 47 Cal, 1115, (2) (1927)I.L. R. 54 Cal,
721,
13
Abinger in stephans (1), which dealt with case of
professional misconduct against an attorney in England. The
learned Judge said:
"If the attorney has been guilty of something
indictable in itself but not arising out of
the cause (in which he is engaged
professionally) the Court would not inquire
into that with a view to striking him off the
roll but would leave the party aggrieved to
his remedy by a criminal prosecution."
There is thus a clear distinction between cases where the
misconduct is one in relation to the practitioner’s duty to
his client and other cases where it is not so. In the former
class of cases the court would be exercising its discretion
properly if it proceeded to deal with the charge as a piece
of professional misconduct without driving the complainant
to seek his remedy in a Criminal Court. So far as the facts
of the present case are concerned the appellant got his
client’s money in his hands in the course of the proceedings
of a suit in which he was engaged and the charge against him
was that he failed to repay the money. In the circumstances
we consider that the High Court was fully justified in
proceeding against the appellant under the provision of s.
10 of the Bar Councils Act.
The next complaint of the learned Counsel was that there
was a procedural irregularity in the mode in which the case
against the appellant was conducted. This was said to
consist in the fact that some evidence on behalf, of the
complainants (the respondents before us)was permitted to be
led after the appellant had examined himself and it was
urged that thereby the complainants had been afforded
opportunity of filling up any lacuna in their case. We
consider that there is no substance in this objection.
No complaint that the appellant was
14
prejudiced by the manner in which the inquiry was conducted
in the matter of the order in which the evidence was
adduced, was made either before the District Judge who
conducted the inquiry or before the High Court when the
report of the District Judge was considered. We have
ourselves examined the record and find that there is no
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basis for any suggestion that any’ prejudice had, occurred
by reason of the order in which the witnesses were examined.
It was then suggested that one of the plaintiffs-Kagga
Veeraiah--had himself admitted in his evidence before the
District Judge that he and others had received the proceeds
of the cheque which the appellant had cashed and that in the
face of this admission the learned Judges of the High Court
were clearly wrong in finding that the appellant had failed
to pay over the money to his clients. A few facts have to
be mentioned to appreciate this contention as well as the
answer to it. As stated earlier, there were four plaintiffs
in the suit--O.S. 432 of 1951 and plaintiffs. 1 to 3 are the
complainants--now respondents 1 to 3 before us. The fourth
plaintiff was one Kagga Veeraiah. It was the case of the
appellant that this money , was paid to all the four
plaintiffs i.e., was paid to the plaintiffs when all the
four of them were present. It was the case of the
complainants that Kagga Veeraiah--the 4th plaintiff died in
1957. It was m these circumstances that the appellant
alleged that Kagga Veeraiah was alive and a man claiming to
be Kagga Veeraiah was produced before the District Judge who
examined him as court witness No. 7. The man who was
examined did depose that the money was paid to the
plaintiffs in his presence and, no doubt, if that statement
along with the identity of the deponent was accepted the
appellant’s defence would have been made out. The case of
the complainants, however, was that the man examined as
court witness No. 7 was an impersonator. To prove the;
death of the
15
real Kagga Veeraiah an extract from the death certificate
was produced in court by the complainants. The attention of
court witness No. 7 was drawn to the fact that in another
proceeding (0. S. 732 of 1955) to which Kagga Veeraiah was a
party a memo was filed into Court stating that he was dead.
The witness’s explanation for this was that as he was not
available the memo to that effect was filed. The witness
was severely cross examined about his identity and in
particular, questioned about the details of the parties and
other details regarding the subject-matter of O.S. 432 of
1951 and his answers were most unsatisfactory, to say the
least. The Learned Judges of the High Court considered all
this evidence and recorded two alternative findings :(1)
that the person examined as C.W. 7 was not Kagga Veeraiah
but was an impersonator seemed to accord with the
probabilities, and (2) that even if C.W. 7 be in truth Kagga
Veeraiah as he claimed, they would not accept his evidence
as there was not ’even a modicum of truth in his deposition’
and they would unhesitatingly reject it. The submission,
however, of learned Counsel was that there was before the
High Court the thumb impression of this witness to his
deposition before the District Judge as C.W. 7 and the thumb
impression of the 4th plaintiff in O.S. 432 of 1951 and that
on a comparison of these two the court should have
accepted the identity of C.W. 7 as Kagga Veeraiah--the 4th
plaintiff. It is really not necessary to pursue this matter
or the details of the evidence relating to it because there
is no ground at all for interfering with the appreciation
by the learned Judges of the High Court of the credibility
of this witness’s deposition apart altogether from the
question as to whether Kagga Veeraiah was dead and if he was
not, whether C.W. 7 was Kagga Veeraiah. The admissions that
this witness made and the ignorance that he displayed about
the proceedings in the suit stamped him as a witness of
untruth and the learned Judges correctly characterised his
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evidence
16
as devoid of "even a modicum of truth." The appellant
cannot therefore rely on any admission on the part of this
witness as evidence of the plaintiffs having received the
sum which was admittedly in his hands.
Lastly, it was urged that the order directing the
suspension of the appellant for a period of five years was
too severe and that we should reduce the period of
suspension even on the basis that the charge against the
appellant be held to be established. We can only express
surprise that Counsel should have made bold to make this
submission. The appellant had got into his hands a
considerable sum of money belonging to his clients and, on
the finding of the High Court, had failed to, pay it back
when demanded. Not content with this he had put forward a
false defence of payment and had even sought to sustain his
defence by suborning witnesses. In the circumstances, even,
if the learned Judges of the High Court had struck off the
name of the appellant from the roll of advocates we would
have considered it a proper punishment having regard to the
gravity of the offence. The order now under appeal
therefore errs, if at all, on the side of leniency and there
is no justification for the request made on behalf of the
appellant.
The appeal fails and is dismissed.
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