a Vs. r - Court Judgment

Excerpt:
[a. p. bhangale, j.] - indian penal code (ipc) - sections 302 read with 34 - punishment for murder - acts done by several persons in furtherance of common intention --applicant is brother of deceased anjali who has filed present revision application. heard learned counsel for applicant and learned counsel for respondents no. 2 to 6. learned counsel for the applicant contends that deceased anjali suffered cruelty at the hands of her inlaws which led to her death. learned counsel for the applicant took me through evidence on record and contended that the impugned judgment and order suffers from infirmity and the prosecution ought to have resulted into conviction of the accused. learned counsel for accused/respondents no. 2 to 6 has supported the impugned judgment and order and he contends.....this is an appeal arising out of the order dated 7.6.1990 passed by the disciplinary committee of the karnataka state bar council in d.c.e. no. 18/89 dismissing the complaint and exonerating the respondent. the brief facts leading- to the complaint were as follows.the complainant is a son-in-law of one late mary raymond. the complainant was the general power of attorney during the life time of mrs. raymond and was the legal representative of her estate. the respondent was the lawyer representing mrs. raymond and had prepared a will for her. the said will was dated 1.7.68. it was kept in the safe custody with the respondent and the receipt to that effect was pa3sed by him on 5.7.1968. subsequently this raymond changed her lawyer and engaged mr. george da costa as her advocate who requested.....

Judgment:
This is an appeal arising out of the Order dated 7.6.1990 passed by the Disciplinary Committee of the Karnataka State Bar Council in D.C.E. No. 18/89 dismissing the complaint and exonerating the respondent. The brief facts leading- to the complaint were as follows.

The complainant is a son-in-law of one late Mary Raymond. The complainant was the general Power of Attorney during the life time of Mrs. Raymond and was the legal representative of her estate. The respondent was the lawyer representing Mrs. Raymond and had prepared a Will for her. The said Will was dated 1.7.68. It was kept in the safe custody with the respondent and the receipt to that effect was pa3sed by him on 5.7.1968. Subsequently This Raymond changed her lawyer and engaged Mr. George da Costa as her Advocate who requested the respondent to hand over the Will, which request was refused by the respondent. This happened in 1978 where after Mrs. Raymond prepared a new will be her new lawyer on 4.1.1982. The present complainant wrote to the respondent to return the Will. He again wrote on 15.4.86. The respondent did not care to reply to either of these letters. The Complainant thought that the conduct of the respondent was mischievous and amounted to Breach of Trust which could have resulted into serious damage to Mrs. Raymond had she died intestate. Therefore the complainant filed a complaint before the State Council. By the resolution No. 110/87 dated 12.7.87 the State Council rejected the complaint holding there in that no prima facie case was made out. The Revision Petition referred by the present Appellant was allowed by the Bar Council of India and the matter was remanded for fresh hearing. Thereafter the parties appeared and the respondent filed his say on 3.7.1989. The complainant thereafter filed rejoinder on 12.8.89. The Disciplinary Committee of the State Council, after taking into account the submissions and the case law filed by either side proceeded to hold the respondent not responsible for any professional misconduct under Sec. 35 of the Advocates Act, 1961 as alleged by the complainant. Having aggrieved by the said order the' appellant came to the Bar Council of India. We have gone through the submissions, both oral as well as written, made before us. It is not disputed that the late Mrs. Raymond had engaged the respondent to prepare her Will and to keep it in safe custody with him. There is some dispute, though not a serious one, as to the return 'of the Will to Mrs. Raymond in her life time or to anyone on her behalf. It is also not disputed and in fact has been held proved by the Disciplinary Committee of the State Bar Council that the complainant was entitled to demand the return of the Will of Mrs. Raymond. However we are not in agreement with the findings of the Committee that the .said Will had become res nullius and that therefore the respondent was not bound to return it. The said Will was the property of Mrs. Raymond and after her death that of the complainant. Therefore he was entitled to demand its return and the respondent was duty bound to do the same. Any document, irrespective of its value, which has been given in the custody of the Advocate ,in his capacity as a legal adviser of a party has to be returned to the party concerned or to its representatives, particularly when repeated demands were made to do so. Not agreeing to the reply to this demand and not actually returning the Will to the complainant would definitely amount to breach of trust on the part of the lawyer concerned thereby making him liable for professional misconduct under Sec. 35 of the Advocates Act, 1961. Apart from the question whether, such a document has been misused or its non return could have caused damage to the interest of the complainant, the mere fact of refusal to return it amounts to misconduct on the part of the Advocate. We also are not able to agree with the observations of the State Bar Council Committee that after the revocation the earlier Will became a mere scrap paper. In fact even the said Committee held that the respondent was bound to return the said Will even if it was a worthless paper after revocation. In fact the Committee held that the position of the respondent was in the nature of a trustee and as such the complainant was entitled to demand possession of the said Will. There was nothing confidential about the Will.

The Disciplinary.jCornrn.itt.ee of the State Bar council gave too much emphasis on the point of delay in filing the complaint. It also referred to some strained relations between the parties. We are not inclined to agree with these findings. A mere delay or strained relations between the parties per-se would not make a complaint false. These are the points which should put us on ground while appreciating the contentions raised on behalf of either side. Bat in a case in which most of the facts are admitted there is little to do except holding that non return of the property of the complainant does amount to professional misconduct on the part of the Advocate. The respondent, tried to .submit that Will had been returned but no convincing evidence to that effect was produced.

In the result, we proceed to allow the appeal by setting aside the order of the Disciplinary Committee of the Karnataka State Bar Council passed on 7.6.1990 in D.C.E. No. 18/89. We hold that the complainant (the present appellant) has succeeded in proving that the respondent committed professional misconduct and is thereby liable under Section 35 of the Advocates Act, 1961. We hereby proceed to hold respondent Shri "R", advocate, Bangalore, guilty of professional misconduct under Sec. 35 of the Advocates Act, 1961 and suspend him from practice for a period of one year. Order accordingly.