The accusation which were leveled against the practicing Advocate were found to be of simple negligence not sufficient to hold him guilty.
Disciplinary Committee of Bar Council of India in BCI TR Case No.138 of 2005 whereby said authority has found appellant guilty of gross negligence in discharge of his professional service to client.
Accordingly he was imposed punishment of reprimand with a further stipulation that he shall pay a sum of Rs.5,000/- to Bar Council of India.
It had also ordered that an equivalent amount to the complainant within two weeks’ time from date of receipt of order failing which he would stand suspended from practicing for a period of six months.
The factual background is that respondent-complainant engaged appellant as an Advocate in respect of a matrimonial dispute and during the pendency of the matrimonial case, wife of the respondent breathed her last due to a kidney failure in year 2002.
Appellant advised complainant-respondent that as wife had expired, there was no justification to prosecute any further the case for the divorce and it was advisable to withdraw said litigation.
In the meantime, respondent engaged him to file a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, ‘the N.I. Act’) as a cheque issued by one Ramachandran in favour of the respondent for a sum of Rs.75,000/- (Rupees seventy five thousand only) had been dishonoured.
It is not in the dispute that appellant thought it appropriate not to file a complaint under the N.I. Act but he felt it apposite to file a complaint case before competent Magistrate under the Section 420,Indian Penal Code and accordingly he did so.
Disciplinary Committee found appellant guilty of gross-negligence as he had failed to get acknowledgment from complainant-respondent.
Supreme Court found that act of appellant cannot be treated to be in realm of gross negligence as it was only one of negligence.
As such the appeal was allowed by the Apex Court and order passed by Disciplinary Committee of Bar Council of India was set aside.
SC Judgement on Only Gross Negligence by an Advocate, Would Amount to Professional Misconduct by latest laws team on Scribd