Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 51/2007
RAJIV DAWAR APPELLANT(S)
VERSUS
HIGH COURT OF DELHI RESPONDENT(S)
J U D G M E N T
KURIAN, J.
1. The appellant is before this Court aggrieved by the
conviction and sentence under section 2(c) read with
Section 10 & 15 of Contempt of Courts Act and under
Article 215 of the Constitution of India. Under the
Contempt of Courts Act a fine of Rs.2,000/- was imposed
and under Article 215 of the Constitution of India the
appellant was suspended from practice for a period of two
months.
2. The main contention of the learned senior counsel
appearing for the appellant is that the whole conviction
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2017.08.01
13:28:34 IST
Reason:
is based on the unilateral version of the complainant
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before the Additional Sessions Judge, New Delhi. Either
before the Additional Sessions Judge at the time of
reference to the High Court or at the stage of the
proceedings in the High Court, the appellant was not given
an opportunity to adduce evidence, or at least cross
examine the de facto complainant. We find that the
learned amicus before the High Court had also requested
the High Court to comply with the procedural formalities
giving full opportunity to the appellant to disabuse the
allegations against him. In contempt proceedings, the
contemnor has to be given an opportunity to establish his
innocence. From the proceedings it is seen that the
appellant was not granted such an opportunity except the
opportunity of filing an affidavit. On the facts of this
case, unless the allegations made by the de facto
complainant who was an accused in a criminal case under
the N.D.P.S. Act, had actually been established or proved
in accordance with law, there could not have been a
conviction based solely on the allegations. The situation
could have been different had at least at the time of
reference by the Additional Sessions Judge, the appellant
had been given an opportunity to participate in the
enquiry and cross examine the complainant. On facts, we
do not find that any such exercise had been undertaken
even by the Additional Sessions Judge while making a
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reference to the High Court.
3. It is a case where the de facto complainant made an
allegation that the appellant had charged exorbitant fees
to the tune of Rs.7.05 Lacs, without any active assistance
to the accused and also withdrawn from the case and,
therefore, he prayed for a direction to the Additional
Sessions Judge for refund of at least Rs.6 Lacs. However,
it was the case of the appellant that for professional
services rendered to the de facto complainant appropriate
fees had been charged and it was not as if the amount
received was for any other purpose as alleged by the
complainant.
4. It is seen that the Bar Council of Delhi had also
looked into this complaint and in the order dated
30.09.2006, at paragraph 12, it has been held as follows:-
“12. An advocate should not ordinarily
withdraw from engagements, once accepted,
without sufficient cause and unless
reasonable and sufficient notices is given
to the client. Upon his withdrawal from a
case, he shall refund such part of the fee
as has not been earned.
It is substantially a matter of withdrawal
by Respondent from the case and not one of
misconduct involving any misrepresentation,
deliberate receipt of money by
falsification or false assurances. The
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complainant is also not seeking any
disciplinary action. His prayer is
confined to the refund of Rs.6 lacs and we
feel that to the extent of Rs.4 lacs, the
prayer of the complainant is justified,
which would be covered under clause 12 of
Bar Council of India Rules.
The present matter according to us is,
therefore, one of withdrawal from the case
and for the deficiency of professional
services, the ends of justice would be met,
it we order refund of part of payments made
to the Respondent. No prejudice will be
caused to the complainant. For the reasons
stated above, issue No.1 and 2 are decided
against the complainant insofar as the
misconduct is concerned. In view of the
observations and findings, however, the
refund of Rs.4.00 lakhs would be justified.
There is neither a claim for interest nor
would be justified, as such no interest
will be payable.”
5. The Disciplinary Authority having completely absolved
the appellant and in view of the procedural safeguards
having not been followed in this case and also having
regard to the fact that the appellant has complied with
the direction to refund the money, the conviction and
sentence imposed on the appellant is set aside.
6. The appeal is, accordingly, allowed.
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7. Pending application(s), if any, shall stand disposed
of.
.......................J.
[KURIAN JOSEPH]
.......................J.
[R. BANUMATHI]
NEW DELHI;
JULY 26, 2017.
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ITEM NO.101 COURT NO.6 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(S). 51/2007
RAJIV DAWAR APPELLANT(S)
VERSUS
HIGH COURT OF DELHI RESPONDENT(S)
Date : 26-07-2017 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE KURIAN JOSEPH
HON'BLE MRS. JUSTICE R. BANUMATHI
For Appellant(s) Mr. K.V. Vishwanathan,Sr.Adv.
Mr. Ashok Mathur, AOR
Ms. Nidhi Agrawal,Adv.
Mr. Sameer Dawar,Adv.
Mr. Dhananjay Ray,Adv.
For Respondent(s) Ms. C.K. Sucharita, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is allowed in terms of the signed judgment.
(NARENDRA PRASAD) (RENU DIWAN)
COURT MASTER (SH) ASST. REGISTRAR
(Signed “Reportable” Judgment is placed on the file)
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