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 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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