S. R. Das, J. - (1.) This is an appeal by special leave from an order made by a Special Bench of the High Court of Judicature at Madras under section 12 of the Indian Bar Councils Act (38 of 1926) debarring the appellant from practising as an advocate for a period of five years.
(2.) The material facts are these. The appellant before us is an advocate ordinarily practising at Masaulipatam. In Calendar Case No. 1 of 1949 on the file of the Additional First Class Magistrate's Court it Masaulipatam nine persons were charged with the offence of conveying rice from the village to other villages without permits. Accused Nos. 2 and 4 were not represented by any Advocate. Accused Nos. 1, 3, 5, 6 and 8, all cart-men, were defended by the appellant. Accused No. 7, who initiated the proceedings out of which the present appeal arises and who is hereinafter referred to as "the petitioner", was defended by another advocate. The case was disposed of on the 30th September, 1949. Accused Nos. 1, 3, 5, and 6 were acquitted. Accused No. 2 was convicted and sentenced to a fine of Rs. 20 and in default of payment of fine to undergo simple imprisonment for one month. Accused No. 4 and the petitioner, accused No. 7, were also convicted and sentenced to pay, a fine of Rs. 300/each and in default of payment of fine to undergo simple imprisonment for six months. Accused No. 8 was sentenced to pay a fine of Rs. 100/- and in default of payment of the fine, to simple imprisonment for three months. Accused No. 2 paid the fine but the other three convicted persons did not. The four convicted persons including the petitioner thereafter engaged the appellant to prefer an appeal to the Sessions Court. The appeal was presented before the Sessions Court on the 8th October, 1949 and on the same day a petition was filed on behalf of accused Nos. 4, 7 (petitioner) and 8 for an order staying the realisation of the fine. That application for stay came up before the learned Sessions Judge on the 10th October, 1949 when notice was directed to issue to the Public Prosecutor. On the 11th October, 1949 the learned Judge passed the following order: "Suspended pending disposal of this petition. Call on 14. 10". On the 14th October 1949 the following further order was passed: "Execution of sentences suspended till disposal of appeal". The appeal was posted for hearing on the 25th November 1949 and was adjourned from time to time. Eventually, it was finally heard on the 13th July 1950 when the appeal was allowed and the conviction and sentences of all the appellants were set aside. On the 25th January 1951 the petitioner caused a registered notice (Ex. A/2) to be sent to the appellant alleging that on the 11th October 1949 the appellant had represented to him that the Court had refused to suspend the sentences and that unless the amount of fine was deposited the petitioner would be sent to jail. It was further alleged that on such representation the petitioner had on that day paid to the appellant a sum of Rs. 300 for which the appellant had passed to the petitioner a chit (Ex. A/1) under his own signature acknowledging receipt of the said sum. The chit (Ex. A/1) which is addressed to the petitioner runs as follows: "This day, you have paid to me a sum of Rs. 300 (three hundred rupees only)". It is signed by the appellant and below his signature appears the date 11th October 1949 and the time 5-15 P. M. is also mentioned below the signature. The allegation in the registered notice further was that the appellant had concealed from the petitioner the fact that the order for payment of fine had been suspended until the hearing of the appeal and also that the appeal had eventually been allowed. The notice ended with a threat that if the appellant failed to return the sum of Rs. 300 together with interest at 12 per cent. per annum from the 11th October 1949 up to date of payment the petitioner would be constrained, in addition to such other proceedings as he may be advised to take for recovery of the said amount, to complain against the appellant and his unprofessional conduct to the High Court and the Bar Council. This notice was received by the appellant on the 12th February 1951 and on the next day, 13th February 1951, the appellant issued three registered notices Exs. A/3, A/4, and A/5 to the petitioner. In Ex. A/5 the appellant complained that the petitioner had been evading payment of the agreed fee of Rs. 150 and on firm demand having been made by the appellant on the 21st January 1951 for payment of such fee before the 25th January 1951 the petitioner had issued the registered notice Ex. A/2. In Ex. A/4 the appellant alleged that the petitioner instructed the appellant to file a stay petition as the petitioner was unable to pay the fine and that the appellant filed the petition accordingly and obtained a stay order about which the petitioner was fully aware. In those circumstances the allegations contained in the petitioner's notice Ex. A/2 were false and highly defamatory. He further alleged that the petitioner was also present in Court on the 13th July 1950 when the appeal was allowed. In the circumstances, there was no need for the petitioner to pay any money to the appellant for the purpose of paying the fine. The appellant called upon the petitioner to withdraw the allegations and tender an unqualified apology immediately. In Ex A/3 the appellant stated that the petitioner had come to him on the 6th October 1949 to engage him as his advocate for filing an appeal. Seeing that the appellant was then pressed for money for payment of an instalment of a loan No. 616 to the Land Mortgage Bank, Pedana, the petitioner volunteered to arrange for a loan of Rs. 300 for the appellant at Pedana and asked him to give a chit in his favour and to send the appellant's clerk with the petitioner. The petitioner did not, however, succeed in arranging for any money but the chit Ex. A/ l remained with him. There was a denial that there was any consideration for the chit Ex A/ l. On the 7th March 1951 the petitioner sent a reply generally denying the allegations contained in the three several notices sent by the appellant to the petitioner. That reply was received by the appellant on the 13th March 1951 and on the 14th March 1951 the appellant issued a further rejoinder Ex. A/7 denying the allegations in the petitioner's reply and stating that the statements in his three notices were true. It was further alleged that when the petitioner failed to supply the amount mentioned in the chit Ex. A/ l the appellant asked him to return the chit but the petitioner said that the chit was missing and that he would search for it and return it subsequently and so saying the petitioner gave the appellant on the 16th October 1949 a hand letter (Ex. D/8) admitting that the petitioner was unable to supply the amount of Rs. 300 mentioned in the said chit as promised. The petitioner did not send any reply to this letter in spite of the fact that the appellant had therein inferred to a hand letter (Ex. D/8) dated the 16th October 1949 which totally nullified the value of the chit Ex. A/ 1.
(3.) The petitioner then on the 27th March 1951 sent a petition to the High Court making a complaint against the appellant of professional misconduct and praying that the Hon'ble High Court might be pleased to order an enquiry into the allegations made in his complaint and to take such action against the appellant as was necessary and expedient in the circumstances of the case. Along with the petition were submitted a photograph of the chit Ex. A/ l and copies of the registered correspondence that passed between the petitioner and the appellant. Even in this petition the petitioner did not refer to the hand letter (Ex. D/8) of the 16th October 1949 and did not specifically deny having written the same. Upon the presentation of the petition the appellant submitted a written explanation before the High Court. The High Court, under section 10 of the Indian Bar Councils Act, referred the matter to the District Judge to enquire into the allegations made in the petition and to submit a report.;