O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The brief facts of the complaint filed by the complainant against the Op are, that there were Civil and Criminal disputes pertaining to his properties, as such engaged service of the Op who is an advocate, he had also presented a cheque bounce case before the JMFC, Doddaballapur against one B.K. Mahesh in connection with bouncing of a cheque of Rs.6.00 lakhs. At the time of filing a complaint he had paid sufficient fee to the Op. That Op has received a demand draft for Rs.6.00 lakhs from B.K. Mahesh, the accused in the cheque bounce case through RPAD. That cheque was received by the Op from Mahesh on his behalf towards payment of bounced cheque. But the Op who received the DD neither informed him nor informed the court. But Op by forging his signature got the DD encashed through his agent, that he is in the habit of signing in Kannada but Op has forged signature on the over leaf of DD in English. That Op requested one S. Krishna Reddy to discuss with him about the cheque bounce case and had told that Krishna Reddy, that he has got the DD encashed, to intervene and settle the matter, that he came to know from that Krishna Reddy this fact and then filed a complaint in Karnataka State Bar Council in which the Bar Council conducted an enquiry and sentenced Op to pay fine of Rs.20,000/- besides suspending him from practice. The complainant therefore attributing deficiency in the service of the Op has stated that Op has not returned his cheque and therefore, has prayed for awarding damages of Rs.12.00 lakhs.<br /> <br /> 2. Op has appeared through his advocate and stated that the complainant though availed the service but has not paid any consideration or service charges in respect of conducting Civil and Criminal cases. Therefore, he retired from the complainant case in the year 2007 itself and the complainant is prosecuting his case from different advocate. Therefore, question of deficiency in service did not arise. Admitting the disciplinary enquiry held against by him, Karnataka State Bar Council stated to have preferred an appeal and obtained stay from the Bar Council of India. The complainant has not filed complaint within two years from the date of alleged deficiency. As such, the complaint is liable to be dismissed and stated this forum has no jurisdiction to entertain the complaint. He has also referred to a private complaint filed by the complainant before IV Additional CMM for the alleged forgery and therefore, this complaint is not maintainable. It is further contended that cheque bounce case filed against B.K. Mahesh is still pending for trail and was posted for hearing to 20/07/2010 which reveal that allegations of the complainant are all false and stated if Mahesh had given DD for him towards cheque bounce case, criminal case could not have been continued so far as return all the original documents concerned, stated that no original documents were given to him at the time of filing the case and only copies were given. The Op contending all other allegations as false has prayed for dismissal of the complaint.<br /> <br /> 3. In the course of enquiry into the complaint, the complainant and the Op have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant along with complaint has produced a copy of legal notice he got issued to the Op, a copy of the reply he received from the counsel for the Op, copy of the order passed by Karnataka State Bar Council in a disciplinary proceeding against the Op. Op has also produced copies of the some documents, extract of bank account, copy of order sheet of criminal case filed by the complainant against him for the forgery and interim order granted by the Bar Council of India, staying the operation of the order passed by the Karnataka State Bar Council. We have heard the counsel for the complainant, gone through the written arguments filed by Advocate for Op.<br /> <br /> 4. On the above materials, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Op as an advocate committed professional mis-conduct by encashing DD of Rs.6.00 lakhs issued in favour of the complainant towards discharge of debt due by B.K. Mahesh which was the subject matter of cheque bounce case and thereby caused deficiency in his service?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:<br /> <br /> Point No.1 : In the negative<br /> Point No.2 : See the final order<br /> <br /> REASONS<br /> <br /> 6.Answer on point No.1: The complainant except making the allegations as narrated above in the complaint, reproducing the same in the form of his affidavit evidence and producing the copy of the order passed by disciplinary committee of the Karnataka Bar Council, has not produced any other oral or documentary evidence to prove the charge against the Op to establish the professional mis-conduct of the Op and the consequential deficiency in his service.<br /> <br /> 7. Op has not denied engaging his service by the complainant for filing a cheque bounce case against one B.K Mahesh before JMFC, Doddaballapur but has denied the allegations of the complainant about that B.K Mahesh, the accused had given a DD for Rs.6.00 lakhs to his hands drawn in favour of the complainant besides further denying the allegations of the complainant that he has got DD encashed by forging his signature. Op in the version and also in the affidavit evidence has further stated that cheque bounce case filed against B.K Mahesh before JMFC, Doddaballapur is still pending and was posted to 20/07/2010 when he filed his version and further contended if that Mahesh had issued a DD to discharge the debt of Rs.6.00 lakhs Criminal case could not have been continued and that B.K Mahesh would not have subjected himself to trail. In view of the said defence of the Op, burden cast on the complainant to prove that B.K. Mahesh, accused in the cheque bounce case had delivered a DD for Rs.6.00 lakhs drawn in his name and had sent it to the Op, the counsel of the complainant, payable to the complainant and its encashment by forging the complainant’s signature. But the complainant has not made any endeavour to place any acceptable evidence before this forum.<br /> <br /> 8. If the allegations of the complainant’s were to be true then the complainant could have got an affidavit of B.K. Mahesh filed before this forum in he having had sent DD for Rs.6.00 lakhs drawn in favour of the complainant to the Op if not, complainant could have summoned the relevant documents of the bank before which DD was encashed and payment was made. If B.K. Mahesh had paid money, due under the cheque he would not have kept quite without disclosing sending of DD in favour of the complainant and face the trial despite repayment. That B.K. Mahesh if had really discharged his liability he would not have subjected himself for Criminal trail. However, the complainant absolutely has not placed any evidence or documents before this forum to prove the issue of DD by B.K. Mahesh drawn in favour of the complainant and having sent it to the Op through registered post then the Op encashing it by forging signature of the complainant and realizing the fruits for himself. The disciplinary committee of Karnataka State Bar Council though in its enquiry found this Op is guilty of professional mis-conduct but on the basis of that finding alone, this forum cannot decide the dispute between the parties. This forum has to adjudicate upon the complainant on the basis of the evidence placed before it independent of the enquiry report of the Bar Council which is not a substantive evidence. The finding of the disciplinary committee of the State Bar Council cannot be read as substantive and conclusive evidence to hold that the Op had committed professional mis-conduct and thereby caused deficiency in his service. After the complaint is posted for orders after hearing the arguments, the counsel for the complainant has filed a true copy of the statement of defence filed by the Op before the disciplinary committee of Karnataka State Bar Council, a certified copy of deposition of the Op, certified copy of the deposition of Krishna Reddy, M.S. Murali Krishna, Padmarajaiah and one Hoysala B.V with an account extract and submitted that the Op in his statement of defence filed before the disciplinary committee has admitted receipt of the DD and its encashment and therefore, on the basis of it, the misconduct of the Op is proved and prayed for allowing the complaint.<br /> <br /> 9. On going through the statement of objections filed by the Op before the disciplinary committee no doubt there is a reference to the receipt of DD for Rs.6.00 lakhs drawn in the name of the complainant by the Op, but the Op has further stated as if he had handed over the DD to the complainant. The Op in his evidence before the disciplinary committee has reiterated the same thing and there by denied to had realized the proceeds of the DD for himself. Witness Krishna Reddy has also in his evidence given before the disciplinary committee has referred to the DD and has stated to had been informed by the Op about receipt of the DD due to the complainant and he having had used the proceeds. One Murali Krishna and Padma Rajaiah who are the bank officials in their evidence before the committee have referred to encashment of the DD but they have not spoken to this Op having had encashed the said DD. Undoubtedly, these copies of the documents produced by the Counsel for the complainant throw some light on the alleged dubious transaction but the fact is whether on the basis of such certified copies of statement of objection and evidence of the witness given in a disciplinary proceeding could be used as substantive evidence to hold that the Op is guilty of professional mis-conduct and is deficient in his service. The complainant and his counsel in our view appears to have failed to understand the basics as how the fact to be proved in a case. The complaint has already observed by us above could have lead independent evidence and used these documents as corroborative evidence to prove his allegation. Complainant could have subjected the Op to cross examination in this enquiry and confronted his statement of objection and evidence to him and then get them marked so that whatever he had stated by him in his objection statement and evidence before the disciplinary authority could have been taken into consideration, but have not chosen to follow such procedure. As such materials placed before us fall short of proof. We therefore, hold that merely on the basis of Certified Copy of the enquiry proceeding placed before this forum, the forum can not hold Op has committed professional mis-conduct as an advocate and therefore he is deficient in his service. Hence, for want of legal and reliable evidence, the complaint is to be dismissed and therefore, we answer point No.1 in the negative and pass the following order.<br /> <br /> O R D E R<br /> <br /> Complaint is dismissed. Parties to bear their own cost.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 20th September 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br />