# M. VEERABHADRA RAO v. TEKCHAND

- **Citation:** [1985] 1 S.C.R. 1003
- **Court:** Supreme Court of India
- **Decided:** 1984-10-18
- **Case number:** Civil Appeal No. 1019 of 1978
- **Bench:** D. A. Desai, V. BALAKRiSHNA BRAD!, V. Khalid
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-veerabhadra-rao-v-tekchand-8660
- **Pages:** 22

## Headnote

Bar Council of India Rules 1975, Part VI, Chaprer II-Standards of
professional conduct and etiquette-Read wUh Rules 34 and 40 of the Civil
Rules of Practice framed by Andhra Pradesh High Court-Advocate be atte3ted
affidavit in absence of deponent known to the advocate-Affidavit found to be
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forged and led to the commission of fraud and damage to deponent-Whethl?r
consritutes professional misconduct-Held-Yes.
Advocates Act, 1961-S. 35-Punlshment for delinquent
advocatePunishment must be commensurate with gravity of misconduct.
Advocates Act, 1961 as amended b_,. the Advocates (Amendment) Act,
1973 (Act 60 of 1973)-S.38-Interp,.tat/on of-Jurisdiction of Supreme
Co11rt to vary punishment awarded by Dbcfplinary Con1mi1tee of Bar Council
of India comprehends jurisdiction to vary finding of Di.iclplinary Commirtee of
Bar Council of l•dla.
Rule 34 of the Civil Rules of Practice framed by the Andhra Pradesh
High Court sets out officers authorised to administer oath for the purpose
of affidavits and an Advocate or Pleader other than the Advocate or Pleader
who has been engaged in such a proceeding have been included in the
list of officers authorised to administer oath.
Rule 40 of the said Rules
provides that 'the officer before whom an affidavit is taken shall state the
date on which, and the place where, the same is taken, and sign bis name
and description at the end, as in Form No. 14, otherwise the same shall not
be filed or read in any matter without the leave of the Court.
Form No.
14 which prescribes the form of affidavit or solemn affirmation requires
a solemn affirmation or oath before the person authorised to
administer the same and then at tho foot of wbicb tho signature of the
deponent must appear and below that the officer entitled to administer
oath must put bis signature in token of both th11t he administered tho oath
and that deponent signed in his presence and by his attestation he bad
subscribed to both the aspects.
Provisions contained in Chapter II ill part VI of the Bar Council of
India Rules or 1975 prescribe 'Standards or Professional Conduct and
Etiquette'. In the preamble to this part, it is stated that
~an advocate
shall, at all times, comport himself in a manner befitting his ·status as an
oflicer of tile Court~ a privileged member of the communit)', and a gentle ..
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SUPREME COURT REPORTS
(1985] I S.C.R.
man, bearing in mind that what may be lawful and moral for a person
who is not a member of the Bar, or for a member of the Bar in his
non~
professional capacity rnay still be improper for an advocate.
It inter alia
includes that an advocate shall not act on the instructions of any persons
other than his client or authorised agent.
Sub-sec. (3) of Sec. 3S of the Advocates Act, 1961 prescribes the
various punishments that may be imposed upon a delinquent advocate :
They are : (a) reprimand the advocate (b) suspend the advocate from
practice for such period as it may deem fit, and (c) remove the name of
the advocate from the State roll of advocates.
Respondent Tek Chand filed a complaint against the appellant, an
advocate; under Sec. 35 of the Advocates Act, 1961
befor~ the Bar Council
of the State of Andhra Pradesh.
The respondent alleged that one Mr.
M. Ram Mohan Rao, advocate, with who1n the appellant was working
as a junior advocate, was a tenant of a house situated at Rasbtrapathi
Road, Secunderabad of which he was the owner.
This house was agreed
to be sold for Rs. 65,000 tn Premlata daughter of Shri Hastimal Jain and
Rs. 10,000 were paid as earnest money.
The sale deed was to be completed within a period of three months on the vendee paying the balance of
of consideration of Rs. 55,000.
The vendeo did not pay the amount and
t.be respondent alleged that he bad cancelled the agreement for sale.
It
was further alleged that as the consideration for sale was exceeding
Rs. 50,000, the sale deed could not be registered unless an income-tax
clearance certificate was produced, but as

## Text

_Characters 0–39,999 of 59,357. This is a partial read: ask again with offset=39999 for what follows._

1003
M. VEERABHADRA RAO
A
v.
TEKCHAND
October 18, 1984
B
[D. A. DESAI, V. BALAKRiSHNA BRAD! AND V. KHALID, JJ.)
Bar Council of India Rules 1975, Part VI, Chaprer II-Standards of
professional conduct and etiquette-Read wUh Rules 34 and 40 of the Civil
Rules of Practice framed by Andhra Pradesh High Court-Advocate be atte3ted
affidavit in absence of deponent known to the advocate-Affidavit found to be
C
forged and led to the commission of fraud and damage to deponent-Whethl?r
consritutes professional misconduct-Held-Yes.
Advocates Act, 1961-S. 35-Punlshment for delinquent
advocatePunishment must be commensurate with gravity of misconduct.
Advocates Act, 1961 as amended b_,. the Advocates (Amendment) Act,
1973 (Act 60 of 1973)-S.38-Interp,.tat/on of-Jurisdiction of Supreme
Co11rt to vary punishment awarded by Dbcfplinary Con1mi1tee of Bar Council
of India comprehends jurisdiction to vary finding of Di.iclplinary Commirtee of
Bar Council of l•dla.
Rule 34 of the Civil Rules of Practice framed by the Andhra Pradesh
High Court sets out officers authorised to administer oath for the purpose
of affidavits and an Advocate or Pleader other than the Advocate or Pleader
who has been engaged in such a proceeding have been included in the
list of officers authorised to administer oath.
Rule 40 of the said Rules
provides that 'the officer before whom an affidavit is taken shall state the
date on which, and the place where, the same is taken, and sign bis name
and description at the end, as in Form No. 14, otherwise the same shall not
be filed or read in any matter without the leave of the Court.
Form No.
14 which prescribes the form of affidavit or solemn affirmation requires
a solemn affirmation or oath before the person authorised to
administer the same and then at tho foot of wbicb tho signature of the
deponent must appear and below that the officer entitled to administer
oath must put bis signature in token of both th11t he administered tho oath
and that deponent signed in his presence and by his attestation he bad
subscribed to both the aspects.
Provisions contained in Chapter II ill part VI of the Bar Council of
India Rules or 1975 prescribe 'Standards or Professional Conduct and
Etiquette'. In the preamble to this part, it is stated that
~an advocate
shall, at all times, comport himself in a manner befitting his ·status as an
oflicer of tile Court~ a privileged member of the communit)', and a gentle ..
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SUPREME COURT REPORTS
(1985] I S.C.R.
man, bearing in mind that what may be lawful and moral for a person
who is not a member of the Bar, or for a member of the Bar in his
non~
professional capacity rnay still be improper for an advocate.
It inter alia
includes that an advocate shall not act on the instructions of any persons
other than his client or authorised agent.
Sub-sec. (3) of Sec. 3S of the Advocates Act, 1961 prescribes the
various punishments that may be imposed upon a delinquent advocate :
They are : (a) reprimand the advocate (b) suspend the advocate from
practice for such period as it may deem fit, and (c) remove the name of
the advocate from the State roll of advocates.
Respondent Tek Chand filed a complaint against the appellant, an
advocate; under Sec. 35 of the Advocates Act, 1961
befor~ the Bar Council
of the State of Andhra Pradesh.
The respondent alleged that one Mr.
M. Ram Mohan Rao, advocate, with who1n the appellant was working
as a junior advocate, was a tenant of a house situated at Rasbtrapathi
Road, Secunderabad of which he was the owner.
This house was agreed
to be sold for Rs. 65,000 tn Premlata daughter of Shri Hastimal Jain and
Rs. 10,000 were paid as earnest money.
The sale deed was to be completed within a period of three months on the vendee paying the balance of
of consideration of Rs. 55,000.
The vendeo did not pay the amount and
t.be respondent alleged that he bad cancelled the agreement for sale.
It
was further alleged that as the consideration for sale was exceeding
Rs. 50,000, the sale deed could not be registered unless an income-tax
clearance certificate was produced, but as the balance of consideration was
not paid, the agreement to sell the Hou$c was cancelled.
However as
the vendee Premlata wanted to grab the house without paying the balance
of consideration ..
in order to get the sale deed registered, it was decided
to get the income tax clearance certificate and with this end in view an
application purporting to be in the name of the respondent with his
sigoature forged there on bearing the date October 31, 1972 and
with an
incorrect address \was prepared.
As an affidavit was necessary in support
of the application, the same was prcpJred on a stamp paper of Rs. 2
with the signature of respondent forged thereon.
This affidavit Ex. A-1
was attested by the appellant as he was an advocate <iutboriscd to attest
affidavits.
On the strength of the
forg~d documents, a'l income-tax
clearance -certificate was obtained in the nam;:: of the respondent and the
sa e deed was got registered.
It wa'3 sp:::cifically averred that the respondent
n ither signed the application for incom:-tax cicarance certificate nor
swore the affidavit.
It was alleged that someone impersonated the respondent and this must be known to the appellant because he knew respondent
for many years prior to the attestation of affidavit.
It was alleged that
a suit had been filed by the respondent against Mr. M. Ram Mohan Rao ..
senior of the appellant, for recovering the arrears of rent in the amount
of Rs. 17,000 and obviously to cause dan1age to the respondent, appellant the junior of Mr. M. Ram Mohan Rao attested a forged signature on
the affidavit.
It was alleged that this constituted a very serious professional
misconduct and necessary enquiry be made and appropriate action be taken.
The appelltlnt admitted that the affidavit Ex. A·l was attested by him;
that the respondent did not affix his si3oature in bis presence on the afti~
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M. V. RAO v. TEK CHAND
lOOS
davit Ex. A-1 but admitted the same in his presence whereupon he attested
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the same.
The Discip1in1;1ry Committee of lhe State Bar Council found that the
appellant advocate attested the affidavit Ex. A· 1 knowing that the respondot-coomplainant had not sworn the affidavit in his presence nor was it
signed in his
pres~.1cc by the respondent and therefore this act of attestation of the affidavit giving a misleading inforination was improper and
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c1me wi ththe mi<>; hi·:f of professional misconduct and contrary to the
norrns ofs e professional etiq11ette.
Having found the appellant guilty
of serious misconcdut, the Committee imposed a ludicrour;ly paltry punishment of reprimand .
The appellant filed an appeal before the Disciplinary Committee of
the Bar Council of India.
('Appellate Committee' for short.)
The Appel·
ate Committee affirmed the order made by the State Committee imposing
hJ lpunisbmcnt of reprimand and conveying a warning to the appellant
that he shou\d be careful in future in such m~tters.
The Appellate Commit ee expunged the observation of the State Committee that the appellant
had n:>t attested Bx. A-1 in the presence of the complainant and that this
act of the appellant
was improper and crimes
within the mischief of
professional misconduct and contrary to the norms of professional etiquette
on the ground that these observations were uncalled for.
Encouraged by
tbe ludicrous pu11ishment, the appellant filed this appeal under section 38
of the Advocates Act, 196 l.
Dismissing the appeal. and enhancing the punishment, this Court,
HELD :
Both the fact finding authorities concvrrently rei::orded
the finding that the respondent did not put his signatur~ on the affidavit,
Bx. A- t in the presence of the appellant and yet the appellant by contributing his attestation to the affidavit made a declaration ihat the signature
was of the appellant made in his presence.
We consider this unambigous
firidiag wh0lly incontrovertible in the facts of this case that the appellant
never appeared before the respondent either on -October 31, 1972 or
November I, 1972. [1014 D-E]
The toll tale circumstances on record and the comulative effect of
the various pieces of evidence accepted as wholly reliable and practically
uncontroverted would clearly render this finding unassailable.
The stark
alocit unpalatable conclusion that flows is that the appellant is a party
to a document which i-l not genuine.
It can bo safely said that it -was a
false document purporting to be in the name of the respondent.
It would
in law became a forged document.
The appellant by attesting the sigaa~
tu re to it gave a solemnity which is being relied upon by the Income Tax
Officer on which a very valuable document namely, income-tax clearance
certificate was issued which facilitated registration of a sale deed in respect
of which the contention is that the consideration has not been paid to the
respoo.dent.
The appell.1nt thus facilitated commission of a fraud by
becoming a party to th.:: forged document.
The appollant has thus violated his statutury duty co:iferr..:ll by the Oaths Act, 1969.
He has also
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SUPREME COURT Rlll>ORTS
(1985) I s.c.a.
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acted in a manner unbecoming of a member of a noble profession.
He has
knowingly becorne a pJ.rty to the forgery of a very valuable document and
he has by his conduct facilitated the commission of a fraud which would to
s&mc extent benefit bis senior Mr. M. Ram Mohan Rao.
Does this conduct
constitute professional misconduct? (1018 G·H; I019 A·B; 1019 D-E]
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One can legitimately expect an advocate of 10 yt>ars standing to
know that under Rule 34. the appellant was not entitled to attest an affi ..
davit which includes administration of oath which was likely to be used in
a proceeding and yet be pretended to act in his assumed capacity, arrogated
to himself the jurisdiction which he did not possess and attested the affidavit in the name of someone whom he knew personally and who was aot
present before him personally and successfully mislead the Income Tax
Officer to issue the income-tax clearance certificate.
Add to this that he
made a blatantly false statement in the proceedings of disciplinary enquiry
that the respondent had appeared before him and admitted his signature.
This is not only a false statement but it is false to his knowledge,
If this
is not professional misconduct, it would be time to wind up this jurisdiction.
Tho appellant is guilty of gross professional misconduct. [120 E·G]
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The Appellate Committee clearly committed an error in deleting
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some of the observations of the State Committee and that shows not only
not-application of mind but a conclusion contrary to record which is
wholly
unsustainable. (1021 A]
By Act 60 of 1973, specific power has been conferred on this C0urt
that in an appeal by the person aggrieved by the decision of the Djsciplinary Committee of the Bar Council of India to this Court, this Court
may pass such order including the order varying the punishment awarded
by the Disciplinary Committee of the Bar Council of India thereon as it
deems fit
This jurisdiction will comprehend the jurisdiction to vary the
finding of the Appellate Committee. [1021 C-D]
In the instant case, having given the matter our anxious consideration,
looking to the gravity of the misconduct and keeping in vie\v the motto
that the punishment must be con1mensurate with the gravity of the misconduct, we direct that the appellant shall be suspended from practice for
a period of five years that is upto and inclusive of October 31, 1989.
[I024 D-E)
Krishan Chander Nayar v. The Chairman, Central Tractor Organisation
and Ors., (1962) 3 SCR 187, Bar Council of Maharashtra v. M. V. Dabho/-
kar etc. etc., [1976] 1 SCR 306 at 322, P.J. Ratnam v. D. Kanikram and
Ors., [1964], 3 SCR 1 and V.C. Rangadurai v. D. Gopalan and Ors., [1979]
1 SCR 1054, referred to.
CIVIL APPELLATE JURISDICTION:
Civil Appeal No. 1019 of
1978.
Appeal Under Art. 38 of the Advocates Act from the Order
M. v. RAO v. TEK CHAND (Desai, J.)
1007
dated the 4th February, 1978 of the Disciplinary Committee of the
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Bar Council of India in D.C. Appeal No. 6 of 1976,
P. Gobindan Nair and B. Parthasarthi for the Appellant.
V.A. Bobde for Respondent.
T.S. Krishnamurthi Iyer and A. Subba Rao for Respondent.
The Judgment of the Court was deliver<d by
DESAI, J. The appellant was ill-advised in filing this appeal
because the more the learned counsel appearing for the appellant
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dived deep into a veritable dustbin of facts, the further hearing
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caused deep anguish more on account of the realisation as to how
occasionally, and we are happy to record very occasionally, a
member of the noble profession sinks to the lowest and to vindicate
his actions tries to clutch at the highest.
One M. Ram Mohan Rao, who was described as a senior of
appellant M. Veerabhadra Rao has been a practising advocate at
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Hyderabad. Appellant M. Veerabhadra Rao was enrolled as an
advocate in the year 1 ~;61 as stated in his evidence.
He joined the
chamber of his senior and at the relevant time he was working in
the chamber of his senior. Shri M. Ram Mohan Rao was a tenant
of the premises bearing Municipal No. 3242 situated at Rashtrapathi
Road, Kingsway, Secunderabad of which respondent Tek Chand
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son of Lala Moti Ram was the owner. It is alleged that the respondent, his wife Mohini and son Subhash Chandra sold and
conveyed the house in question by a deed of conveyance in
favour of Premlata wife of Sohan Lal Saloot and daughter
of Hustimal Jain for a consideration of Rs.
65,000.
As the
sale was for a consideration of more than 50,000 the vendor was
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required to produce an Income-tax Clearance Certificate as required
by Sec. 230 of the Income-tax Act, 1962 before the sale de>d could
be registered. It may be mentioned
that sometime before the
alleged transaction of sale, a suit was filed by respondent Tek Chand
against Shri M. Ram Mohan Rao, the tenant for eviction on the
ground of non-payment of rent etc. This suit had ended in a
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decree and at the relevant time, an appeal preferred by Shri M.
Ram Mohan Rao was pending. To resume the narrative Tek Chand
had already obtained the necessary Income-tax clearance certificate
on July 5, 1972. When the sale deed was presented for registration,
the Registrar of Conveyances asked for the Income-tax clearanee
certificate and respondent Tek Chand said that on payment of the
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full consideration, the same will be produced. From thereon the
distressing events leading to the present appeal started
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Respondent Tek Chand filed a complaint No. 14 of 1974
under Sec. 35 of the Advocates Act, 1961 before the Bar Council
of the State of Andhra Pradesh alleging that one Mr. M. Ram
Mohan Rao, advocate was a tenant of a house situated at Rashtrapathi Road, Secunderabad of which he was the owner.
This house
was agreed to be sold for Rs. 65,000 to Premlata daughter of Shri
Hastimal Jain and Rs. 10,000 was paid as earnest money. The sale
deed was to be completed within a period of three months on the
vendee paying the balance of consideration of Rs. 55,000. The
vendee did not pay the amount and the respondent alleged that he
had cancelled the agreement for sale. It was further alleged that
as the consideration for sale was exceeding Rs. 50,000, the sale
deed cannot be registered unless an lucome-tax clearance certificate
is produced, but as the balance of consideration was not paid,
agreement to sell th' house was cancelled.
However as the vendee
Premlata wanted to grab the house without paying the balance of
consideration, in order to get the sale deed registered, it was deci ·
ded to get the Income-tax clearance certificate and with this end in
view an application purporting to be in the name of the respondent
with his signature forged thereon bearing the date October 31, 1972
and with an incorrect address was prepared.
As an affidavit is
necessary in support of the application, the same was prepared on
a stamp paper of Rs. 2 with the signature of respondent Tek Chand
forged thereon. ] his affidavit was attested by the appellant as
he is an advocate authorised to attest affidavits.
on the strength of
the forged documents, an Income-tax clearanee certificate was
obtained in the name of respondent and the sale deed was got
registered. It was alleged that the signature of respondent Tek
Chand was attested by
the present appellant, the junior of
Mr. M. Ram Mohan Rao, on being paid Rs. 300 through one
Mulchand, Munshi of Lalchand, who is the uncle of the father of
Premlata, the vendee.
It was specillcally averred that respodent
Tek Chand neither signed the application for income-tax clearauce
certificate nor swore the affidavit.
It was alleged that someone
impersonated Tek Chand and this must be known to the appellant
because he knew respondent T ek Chand for many years prim to
the attestation of affidavit. It was alleged that a suit had been filed
by Tek Chand against Mr. M. Ram Mohan Rao for recovering the
arrears of rent in the amount of Rs. 17,000 and obviously to cause
H damage to Tek Chand, appellant the junior of Mr. M. Ram Mohan
Rao attested a forged signature on the affidavit. The application
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M. v. RAO v. TEK CHAND (Desai, J.)
1009
with the affidavit annexed was submitted to the Income tax depart·
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ment on the same diy, and the Income-tax clearance certificate was
procured through M ulchand which was produced in the office of
Sub-Registrar, Seeunderabad. Thus the vendee Prem!ata got the sale
deed registered on the strength of forged documents to which the
appellant was a party and that wrongful loss was caused to the
respondent in the amount of Rs. 1,35,000 which was facilitated by
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the appellant. It was alleged that this constitutes a very serious
professional miconduct and necessary enquiry be made and appropriate action be taken.
The appellant appeared and filed a counter affidavit denying
all'the al]egations. It was specifically admitted that the affidavit.
on the strength of which the Income-tax clearance certificate was
obtained on November 2, 1972 was attested by him. As the decision
largely turns upon the explanation offcrred by the appellant his
poS!tive case may be extracted : Says he :
"Either on 31.10.72 or on 1.11.72 the complainant (Tek
Chand) came to this r,,spondent with an
affidavit purporting to bear his signature and requested this respondent
to attest the same.
The Complainant admitted that the
signature appearing on the affidavit as that of his and
therefore this respondent
attested the same. On this
admission of the complainant in person to this respondent
in the
office of Mr. M.
Ram Mohan Rao, Advocate,
this respondent attested the same in good faith and believing the representations made by the Complainant. This
respondent was aware that even prior to the date of attestation of the affidavit, the Complainant had issued a notice
to this Respondent's then Senior Shri M. Ram Mohan Rao
attorning him to pay rents to Premlata as the Complainant
had sold the house to the said Premlata. It is therefore,
emphatically denied that this respondent received Rs. 300
from Moolchand and he attested a forged affidavit as
alleged. It is only on the admission and representation
made by the Complainant himself in person, that this respondent attested the affidavit in good faith."
The State Bar Council referred the complaint to its Disciplinary Committe. The complainant-respondent
examined himself
and he ·examined one Mohan Lal as his witness.
He produced
four documents marked Ext. A-1 to A-4, The important document
is Ext. A·l, the ·affidavit dated October 31, 1972 purporting to be
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of respondent Tek Chand. Ex. A-2 is the application addressed to
the Income-tax Officer for issuing income-tax clearance certificate.
Ex. A-3 is the reply of Income-tax Officer dated March 8, 1973 to the
inquiry made by the respondent. Ex. A-4 is another letter from
the Income-tax Officer dated March 20, 1973 to the respondent.
Ex. A-1 (a) and Ex. A-1 (b) are the disputed signatures of the
respondent on the affidavit and the application respectively.
The
appellant himself gave evidence and examined Mr. N. Satyanarayana, advocate who was another junior of Mr. M. Ram Mohan
Rao as his witness and produced documents marked Ext. B-1
to B-4.
The Disciplinary Committee of the State Bar Council ('State
Committee' for short) to whom the complaint was referred for
disposal after minutely analysing the oral and documentary evidence, rejected the evidence of PW-2 Mohan Lal witness examined
by the complainant and RW-2 Mr. N. Satyanarayana, advocate
examined as witness by the appellant, observing that both were
partisan on witnesses and no credence can be given to their evidence.
The Committee also rejected the allegation that the appellant was
paid Rs. 300 by Mr. Hastimal for attesting affidavit Ex. A-1, observing that there was no cogent and unimpeachable evidence in
support of this allegation.
The Committee further held
that
complainant Tek Chand never approached the appellant with Ex.
A-1 and therefore, the explanation of the appellant that he attested
the affidavit on the statement made by the respondent that it bears
his signature cannot be accepted.
The Committee concluded th;t
the attestation of Ex. A-1 amounts to witnessing the fact that the
deponent affirmed the truthfulness and genuineness of what was
. stated in the affidavit and signed in his presence, but this would be
untrue without the presence of deponent Tek Chand and therefore,
the endorsement becomes false and rendered the attestation invalid.
The Committee concluded that the appellant advocate attested Ex.
A-1 knowing, that the respondent-complainant had not sworn the
affidavit in his presence nor was it signed in his presence by the
respondent and therefore, this act of attestation of the affidavit
giving a misleading information is improper and comes within
the mischief of professional misconduct and contrary to the norms
of the professional etiquette. The State Committee also concluded
that on account of this misconduct on the part of the appellant,
income-tax clearance certificate was obtained and therefore, the
appellant was guilty of professional misconduct.
Having found
the appellant guilty of serious misconduct, namely, attesting an affi-
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M. v. RAO v. TEie CHAND (Desai, J.)
101!
davit which appears to be a forged one and which was used to
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obtaill. an unfair advantage by Premlata by obtaining Income-tax
clearance certificate on the strength of Ex. A-1 which did not appear
to be genuine to the Committee, and which caused wrongful loss
to the respondent, the Committee developed cold feet and imposed
a ludicrously paltry punishment of reprimand which is no punishment striCto sensu.
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Emboldened by this timid performance of the Disciplinary
Committee of the State Bar Council, the appellant filed D.C .
Appeal No. 6 of 1976 before the Disciplinary Committee of the Bar
Council of India. ('Appellate Committee' for short). The Appellate Committee held that the explanation of the appellant that he
attested the affidavit on the strength of the statement made to him
by the respondent that the affidavit bears his signature and that
there was nothing improper in at1esting the affidavit on the acknowledgement made by the deponent about his signature cannot be
accepted because the affidavit in question categorically states that
the party deponent put his signature before the attesting advocate,
when it was common ground that it was not so done and the affirmation by the advocate clearly amounts to a false statement. The
Appellate Committee then became
fictitous and observed that
it would take a serious and strict view of the matter and hold that
an advocate ·should not be a party to suclv an irregular procedure
amounting to a false declaration by him. After so observing the
Committee affirmed the order made by the State Committee imposing the punishment of reprimand and conveying a warning to the
appellant that he should be careful in future in such matters. The
Appellate
Committee
then
proceeded to accept one contetion on behalf of the learned advocate appearing for the appellant
and expunged the observation of the State Committee that the
appellant had not attested Ext. A-1 in the presence of the complainant f<nd that his act of the appellant was improper and comes
within the mischief of profession misconduct and contrary to the
norms of professional etiquette on the ground that these observations·
were uncalled for especially in view of the, fact that the Committee
disbelieved the evidence of P. W. 2 on the question of payment
of Rs. 300 and presentation of affidavit by Moo! Chand. It would
be presently pointed out that the expunging of those remarks was
uncalled for and betrays total non-application of mind while disposing of the appeal.
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Undaunted by two failures but presumably encouraged by the
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SUPREME COURT REPORTS
[1985) 1 s.c.R.
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ludicrous punishment, the appellant filed this appeal in this Court
under Sec. 38 of the Advocates Act, 1961. By the order made on
August 7, 1978, the appeal was admitted and directed to be included
in the list of short matters.
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1 he respondent on being served, appeared and filed cross
objections inter al!a contending that there was a conspiracy between
M. Ram Mohan Rao, senior of the present appellant and vendee
Prcmlata as well as Hastimal to cause wrongful loss to the respondent.
To this conspiracy even the appellant was a party. M. Ram
Mohan Rao, who was a tenant of the house which Premlata claims
to have purchased was under a decree of eviction and in order to
thwart it he hatched the plot to which the appellant Jent his assistance by purchasing two stamp papers of Rs 2 each in the name of
the respondent and after drawing up a false affidavit in the name of
the respondent a signature was forged thereon to which the appeliant
lent his attestation so as to give it an appearance that the forged
signature was a genuine signature of the respondent knowing full
well that on the strength of this forged affidavit an income-tax
clearance certificate was to be obtained which would facilitate regis·
tration of the sale deed which Premlata claimed to have taken and
which was objected to by the respondent. It was alleged that for
rendering such service he charged and accepted Rs 300 in the
presence of PW 2 witness Mohan Lal.
ft was alleged that th is
forged affidavit was submitted to the Income-tax Officer on the
strength of which an income-tax clearance certificate was obtained
which enabled M. Ram Mohan Rao and Premlata to get registration
of the sale deed.
The respondent prayed for enhancement of
punishment imposed upon the appellant.
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The appellant filed his rejoinder to the cross objections filed
by the respondents Inter alia contending that in the absence of any
provision in the Advocates Act, 1961, the respondent is not entitled
to file cross objections. It was submitted that if the respondent
was aggrieved by the-order of the State Committee or the Appellate
Committee, it was open to him to prefer an appeal but that having
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not been done, the cross objections cannot be entertained.
The appeal came up for hearing on September 23, 1980 before
a Bench comprising A. C. Gupta and A. P. Sen, JJ. After hearing
Mr. Vepa P. Sarthay, learned counsel appearing for the appellant,
the Conrt proceeded to hear Mr. V. A. Bobde who appeared amicus
curie for the respondent.
After hearing both the sides, the Court
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made the following order :
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M. v. RAO v. TEK CHAND (Desai, J.)
1013
"Issue notice to the appellant in this appeal as to why
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having regard to the findings recorded by the State Bar
Council and the other facts and circumstances of the case
the punishment awarded against him should not be enhanced.
This appeal will be heard along with cross objection filed
by the respondent. C. A. No. l 'll9/78 to be treated as
P.H."
Mr. Govindan Nair, learned counsel who appeared for the
appellant submitted that the facts found both by the State Committee
and the Appellate Committee would not constitute professional
misconduct for which the appellant may incur a penalty.
B~fore we proceed to examine what constitutes professional
misconduct, we may briefly point out the facts concurrently fouud
by the State Committee and the Appellate Committee.
After extensively reproducing the evidence led in the case and
after rejecting the evidence of PW-2 Mohan Lal, a witness examined
by the respondent and RW-2 N. Satyanarayana, a witness examined
by the appellant, the State Committee concluded that the affidavit
Ext. A-1 was not taken to the appellant by the respondent nor did
he admit his signature on the affidavit Ext. A-I in the presence of
the appellant. The affidavit. Ext. A-1 contains certain obvionsly
incorrect statements in that even though respondent was aged more
than 60 years, his age was shown to be 45 years in Ext. A-I aLd
that the address of the respondent shown in the affidavit on the
date of the affidavit was incorrect because he was not residing in
the House No. 3242, Rashtrapathi Road, Secunderabad as set out
in Ext. A-1 but was residing at Red Hills Hyderabad. It was also
found that the respondent did not go to the office o( advocate Shri
M. Ram Mohan Rao where the appellant was at the relevant time
sitting for getting Ext. A-I attested. It was
noticed that the
appellant admitted that Exts.
A-1 (a) and A-1 (b) were not signed
by the respondent in the presence of the appellant and that he
attested the same on the statement of the respondent-complainant.
It was found as a fact that the affidavit bears the date October
31, 1972 and was filed in the Income-tax department on the same
date, while the attestation of the appellant thereon bears the date
November I, 1972. It wos concluded that either without the
presence of the respondent or his so-called admission of his signature the appellant should not have attested his signature on an
affidavit and therefore the attestation was invalid.
And that this
constitutes professional miscondqct.
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SUPREMB COURT RBPORTS
(1985) 1 S.C.R •
The Appellate Committee in a cryptic albeit loconic order,
bravity being its only merit, broadly agreed with the findings
recorded by the State Committee observing that the affidavit on its
own face would tend to show that the attestation was done after the
signatory had put his signature in the presence of the appellont and
thereafter the appellant attested the signature while it is admitted by
the appellant that the signature was not put by the resondent on
the affidavit in his presence but merely stated that he had signed
the same. Therefore according to the Appellate Committee the
affirmation of the same by the appellant clearly amounts to a false
statement and that the appellant was a party to a false declaration
and therefore, he is guilty of professional misconduct as found by
the State Committee. Cmiously thereafter, the Appellate Committee for reasons which are neither comprehensible nor convincing
deleted the observation made by the State Committee which was
clearly borne out by the evidence observing 'that the finding was
uncalled for in view of the fact that the State Committee disbelieved
the evidence of PW 2 on the question of payment of Rs 300 and
presentation of the affidavit by Moo! Chand.' It has been very
difficult for us to appreciate this disjointed reasoning. However, it
is crystal clear that both the fact finding authorities concurrently
agreed that the respondent did not put his signature on Ext. A-I in
the presence of the appellant and yet the appellant by contributing
his attestation to the affidavit made a declaration that the signature
was of the appellant made in his presence, and admittedly that not
being true the appellant was guilty of misconduct.
Does this
constitute professional misconduct is the question ?
The narrow question that falls for our consideration in this
case is whether the appellant, an enrolled advocate, who was
authorised to attest an affidavit that can be used in civil or criminal
proceedings committed impropriety in attesting an affidavit which
attestation would imply that the deponent subscribed his signature
to the affidavit in bis presence after taking the requisite oath that
ought to be administered to him because there is no dispute that
an affidavit is a sworn statement of the deponent.
The expression 'affidavit' has been commonly understood to
mean a sworn statement in writing made especially under oath or on
affirmation before an authorised Magistrate or officer. Affidavit has
been defined in sub-cl. (3) of Sec. 3 of the General Clauses Act,
1897 to include 'affirmation and declaration in the case of person by
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Jaw a!lowed to affirm or declare instead of swearing.' The essential
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M. V· RAO v. TEK CHAND (Desai, J.)
1015
ingredients of an affidavit are that the statements or declarations are
made by the deponent relevant to the subject matter and in order to
add sanctity to it, he swears or affirms the truth of the statements
made in the presence of a person who in law is authorised either to
administer oath or to accept the affirmation. The responsibility for
making precise and accurate statements in affidavit were emphasised
by this Court in Krishan Chander Nayar v. The Chairman, Central
Tractor Organisation ond Ors.<1) The part or the role assigned to the
person entitled to administer oath is no less sancrosanct. Section 3 of
the Oaths Act, 1969 specifies persons on whom the power to admini•-
ter oath or record affirmation is conferred. It inter a/ia includes 'any
Court, Judge, Magistrate or person who may administer oaths and
affirmations for the purpose of affidavits, if empowered in this
behalf-(a) by the High Court, in respect of affidavits for the purpose
of judicial proceedings; or (b) by the State Government, in respect
· of other affidavits.' The Schedule to the Act prescribes forms of
oaths or affirmation that is required to be administered to the party
seeking to make his own affidavit. Rule 40 of the Civil Rulos of
Practice framed by the Andhra Pradesh High Court provides that
'the officer before whom an affidavit is taken shall state the date on
which, and the place where, the same is taken, and sign his name
and description at the end, as in Form No. 14, otherwise the same
shall not be filed or read in any matter without the leave of the
Court.' 'Form No. 14' prescribes the form of affidavit on solemn
affirmation. It requires a solemn affirmation or oath before the person
authorised to administer the same and then at the foot of which the
signature of the deponent must appear and below that the officer
entitled to administer oath must put his signature in token of both
that he administered the oath and that deponent signed in his presence and by his attestation he has subscribed to both the aspects.
Rule 34 of the afore-mentioned rules sets out officers authorised to
administer oath for the purpose of affidavits and an Advocate or
Pleader other than the Advocate or Pleader who has been engaged
in such a proceeding have been included in the list of officers authorised to administer ~ath. The appell~nt as an advocate enrolled by
the State Bar Councd was thus authonsed to administer oath for the
purpose of an affidavit and attest the same. This was not disputed
before us.
It is not in dispute that Ext. A-1 is an affidavit purporting to
have been made by the respondent in the presence of the appellant
(ll (1962] 3 S.C.R. 187.
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SUPREM! COURT REPORTS
(1985] 1 s.c.R.
and attested by him. The appellant admits in no uncertain terms
that Ext. A-1 bears his attestation. If the matter were to rest here
it would mean that the respondent appeared before the appellan;
with his affidavit.
Thereupon, the appellant administered oath to
him and on the respondent taking the oath and affirming the truth of
the statement made in the affidavit, put his siguature on the affidavit
in the presence of the appellant and then the appellant subscribed
his signature to the affidavit in token of his having administered the
oath and the respondent having affixed his signature in his presence.
The content of the affidavit clearly spells out the purpose for which
the affidavit was being made namely for obtaining an income tax
clearance certificate which the respondent as vendor had to produce
before the Registrar of Conveyances acting under the
Indian
Registration Act for the purpose of registering the sale deed which
the respondent was alleged to have executed in favour of Smt.
Prem\ata. To narrow down the area of controversy, it may be
mentioned that the appellant admits that the affidavit Ex. A-1 is
attested by him.
He further concedes that the respondent did not
affix his signature in his presence on the affidavit Ext. A-I but
admitted the same in his presence whereupon he attested the same.
This statement of the appellant clearly shows dereliction of duty in
two aspects : (i) that he did not administer any oath or did not call
np the respondent to make an affirmation though Ext. A-1 purports
to be an affidavit and secondly, the respondent did not subscribe his
signture in the presenae of the appellant and the appellant merely
acted on an alleged statement of the respondeut that the affidavit
bears his signature. The enquiry therefore, in this case is a very
narrow one. It centres round whether the respondent personally
appeared before the appellant when he was sitting in the office of
his senior M Ram Mohan Rao and produced the affidavit Ext. A-1
for attestation by the appellant ?
The State Committee clearly recorded an unambiguous finding
which we consider wholly incontrovertible in the facts of this case
that the appellant never appeared before the respondent either on
October 31, 1972 or November l, 1972. There are tell tale circumstances on record which would clearly render this finding unassailable.
The appellant was the junior of M. Ram Mohan Rao who claimed
to be occupying the very house as tenant of the respondent which
was the subject matter of the disputed sale and the respondent had
filed a suit against M. Ram Mohan Rao for eviction on the ground
of non-payment of rent in the aggregate amount of over Rs. 11,000
and the suit had already ended in a decree in favour of the respondent apinst M· Ram Mohan Rao and the matter was pendm$ in
M. v. RAO v. TEK CHAND (Desai, J.)
1017
appeal. There was thus no Jove lo>t between M. Ram Mohan Rao
and the respondent. In this back-gronnd ihe respondent would never
think of going to the office of M, Ram Mohan Rao to contact his
junior the present appellant for the purpose of swearing the affidavit.
If the Oath Commissioners were a scarce commodity, one may have
to go in search of a rare commodity but the relevant rules 34 and 40
clearly show that every advocate was authorised to administer oath
for the purpose of affidavit and attest the same. Secondly, the
affidavit was for the purpose of obtaining an income-tax clearance
certificate. Now there is unimpeachable evidence on record that the
respondent had already obtained an income-tax clearance certificate
way back on July 5, 1972. In his. examination-in-chief in the course
of disciplinary proceedings,· the respondent stated that on July 5,
1972, he obtained income.ta« clearance certificate from the incometax officer. There is no cross-examination on this point. It clearly
amounts to an acceptance of the fact that way back on July 5, 1972
the respondent had already obtained an income-tax clearance certificate. Therefore, it is not necessary for him to obtain any fresh
income-tax clearance certificate. He had therefore' no reason to
approach the appellant for attesti;;g the affidavit for the avowed
object of obtaining an income-tax clearance· certificate.