IN RE. SRILAL HERATH
G. P. S. DE SILVA, C.J.,
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. RULE NO. 3/93 (D),
MAY 8, 1995.
Attorney-at-Law – Disciplinary Rule – Deceit – Order of Magistrate compoundingthe connected criminal case – whether it bars disciplinary proceedings – Section42(2) of the Judicature Act.
One Ran Banda complained to the Bar Association of Sri Lanka that Srilal Herath,Attorney-at-Law. (hereinafter referred to as the respondent) obtained a sum of Rs.80,000/- from him in two instalments of Rs, 40,000/- each as consideration forsecuring foreign employment for his son-in-law, but failed to obtain employmentas promised. The respondent issued a receipt for the first instalment but not forthe second. A criminal case which was instituted in this connection before theMagistrate's Court was compounded, the respondent agreeing to pay a sum ofRs. 40,000/-. However, he failed to make payment on the agreed date; and it tookabout 1 1/2 years for the Magistrate to compel the respondent to completepayment, in instalments. At the inquiry held by a Committee of the BarAssociation, the respondent accepted liability for the balance Rs. 40.000/- as welland undertook to pay it in three instalments, but failed to honour that undertaking.Consequently a Rule was issued against the respondent on the ground of deceitand the offence of cheating. At the inquiry into the Rule, the respondentsubmitted that once the charge against him was compounded there was no basisto issue a Rule against him.
The respondent is guilty of "deceit" within the meaning of Section 42(2) of theJudicature Act. The Disciplinary proceedings against the respondent were notsuperseded by the result of the case before the Magistrate.
Cases referred to:
In re. Thirugnanasothy – 77 NLR 236,279, 240.
In re. Advocate – 52 NLR 559,560.
Proceedings on Rule Nisi to remove Attorney-at-Law from Roll of Attorneys.
Manik Kanakaratnam for the Bar Association.
C. ft. de Silva. D.S.G., with Aluvihare, S.C., for the Attorney-General.
Respondent in person.
Cur. adv. vult.
A Rule was issued on the respondent, an Attorney-at-Law, to showcause why he should not be suspended from practice or removedfrom the office of Attorney-at-Law in terms of S.42(2) of the JudicatureAct No. 2 of 1978 on the grounds of deceit and the offence ofcheating. It was alleged that the respondent had deceived oneT. M. G. Ran Banda (now deceased) and induced him to part with atotal sum of Rs. 80,000/- as a consideration for obtaining employmentin Japan, for his son-in-law; but the respondent failed to secureemployment as promised.
This Rule is the sequal to an inquiry conducted by the BarAssociation of Sri Lanka against the respondent on a complaint madeby Ran Banda by his affidavit dated 19.11.91 (P1). According to P1,the aforesaid Rs. 80,000/- was paid to the respondent in twoinstalments the first of which was an “advance” of Rs. 40,000/- forwhich the respondent gave him the receipt P2 dated 20.03.90 in thename of Lanka International Development Association and admittedlysigned by the respondent as "Managing Director, Srilal Herath,Attorney-at-Law”. It is also signed by one Gunawardena as“Chairman”. Ran Banda says that one week later he paid a furtherRs. 40,000/- to the respondent for which no receipt was given.
The inquiry proceedings by the BASL (P5) and the evidence ledbefore this Court show that on 06.12.90 Ran Banda made acomplaint to the Peliyagoda Police against the respondent. On17.02.91, the respondent appeared at the Police Station andundertook to refund a sum of Rs. 40,000/- by 17.05.91. This was notdone; and criminal proceedings were instituted against him in M.C.Gampaha case No. 22515 for an offence under 3.64(b) of the Bureauof Foreign Employment Act No. 21 of 1985 (Vide the record ofproceedings marked P3). Whilst that case was pending, Ran Bandaalso made his complaint to the BASL on 19.11.91.
On 06.12.91 the charge against the respondent was amended toone under Section 386 of the Penal Code. The case wascompounded, the respondent agreeing to pay a sum of Rs. 40,000/-.He paid Rs. 5000/- on that day and was directed to pay the balanceon 31.01.92 on which date he paid only Rs. 5000/-. On the next date
e. 28.02.92 he was absent and submitted a medical certificate.
On 17.03.92 the respondent sent his observations (P4) to the BASLon Ran Banda's complaint, denying that he had obtained a sum ofRs, 80,000/-. He said that the sum of Rs. 40,000/- was paid not to himbut to Gunawardena, the co-signatory on the receipt P2. He addedthat the case in the Magistrate's Court had been compounded by anundertaking to pay Rs. 40,000/- and he was in the process of payingthat sum in instalments as ordered. It is significant that this statementwas not true because the case was compounded on condition thatthe respondent completed refunding Rs, 40,000/- by 31.01.92. Therespondent had failed to comply with that condition.
The respondent was eluding the Magistrate’s Court even after hetendered his observations to the BASL; he was absent and a warrantwas issued. He surrendered on 08.05.92 but was absent on the nextdate viz. 29.05.92. Consequently, the Magistrate issued warrant andhis attendance was secured only on 17.07.92, on which date he wasenlarged on cash bail in a sum of Rs. 25,000/- in addition to securitybail for the same amount, it was only thereafter that he completed thepayment, which he did, in periodical instalments, ending on 21.05.93.
The Committee of the Bar Association which held the inquiryagainst the respondent on 10.10.92 was apprised of the abovesituation. In the circumstances, it decided to continue the inquiryregarding the respondent’s conduct with reference to the payment ofRs. 40,000/- (without a receipt) even though the matter had beensettled in the M.C. for Rs. 40,000/-, on the advice of lawyers. At theinquiry, the respondent accepted liability for that sum too andundertook to pay the same in three instalments ending on 13.03.93.He was informed that in default, he would be reported to the SupremeCourt. He signed the record accepting the said settlement. However,he failed to honour the settlement whereupon the Chairman of theCommittee “reported" the matter to this Court (Vide P5(b».
Ran Banda's son-in-law was never sent to Japan as promised bythe respondent. The respondent did not give evidence at the hearingbefore us. He marked in evidence the statement he made on 17.02.91to the Peliyagoda Police (D1). In this statement he does not say thathe made any arrangements or took any steps whatsoever to send RanBanda’s son-in-law to Japan. No material whatsoever has beenplaced before this Court even to remotely suggest that the complaintof Ran Banda is not well founded.
Both Mr, C. R, de Silva DSG and Manik Kanakaratnam whoappeared for the Bar Association submitted that the acts of “deceit"have been established. On a consideration of the documents PI, P2,P3, P5 and D1 and the fact that even after two years of the settlementbefore the Bar Association, the respondent has failed to repay thesecond instalment of Rs. 40,000/-. I hold that the respondent is guiltyof “deceit” within the meaning of S.42(2) of the Judicature Act.
There remains to consider the nature of the order that should bemade in the facts and circumstances of this case. The DSGrepresenting the Attorney-General submitted that the respondent isnot a fit and proper person to be entrusted with the affairs of litigants.Mr. Kanakaratnam associated himself with the submissions of theDSG and added that the respondent conducted a "fictitious”organisation, as Managing Director and an Attorney-at-Law, whichwas tantamount to selling his title as a member of an honourableprofession, for the purpose of attracting customers. The respondentsubmitted that once the charge against him in the sum ofRs. 80,000/- was compounded, there was no basis to issue a Ruleagainst him. He said that the case was concluded in the Magistrate’sCourt.
Disciplinary proceedings before this Court cannot be sosuperseded by the result of a case in the Magistrate's Court. Thus itwas held in In re Thirugnanasothyby G. P. A. de Silva SPJ(Wijayatilake, J. and Pathirana, J. agreeing) that where a proctor isguilty of misappropriating money due to his client he may be removedfrom office under S.17 of the Courts Ordinance. It is immaterial for thispurpose that he has been acquitted on an indictment containing acharge relating to this identical transaction, when the reasons for theacquittal, though sound, are technical in nature. G. P. A. de Silva SPJsaid – (239,240)
“As we are conscious of the consequences which an order in termsof Section 17 of the Courts Ordinance would involve for aprofessional man, we have given this matter our, most anxiousconsideration, remembering at the same time that the publicinterest and the honour of the profession must remain in theforefront of our decision. The question that the Court has to askitself is whether a person who has been guilty of misappropriationof his client's money and has aggravated his offence by his refusal
to make good that amount despite repeated requests, can safelybe entrusted with the interests of unsuspecting clients who mayhave recourse to him. There can be no two answers to thisquestion. Hence there is only one course open to us, namely tostrike off the respondent from the rolls"
In the instant case the respondent's conduct, though not in respectof a professional matter, has throughout been dishonourable. Eventhe compounding of the criminal case has been secured on amisrepresentation namely, that he would refund Rs. 40,000/- by31.01.92. He failed to honour the settlement. He was virtually coercedby the Court over a period of nearly 1 1/2 years to finalise thatpayment. Next he undertook before a committee of the BarAssociation to refund the second instalment of Rs. 40,000/-. He failedto make any payment thereafter. This shows that he is a man who canmake a promise without intending to honour it. He was admitted tothe Bar on the basis that he was a person of good character andrepute. He appears to have lost that quality and it does not seem thathe will redeem his character in the near future.
In Re an AdvocateK) Gratiaen, J. said –
“Our duty must be measured by the rights of litigants who mayseek advice from a professional man admitted or readmitted to theBar by the sanction of the Judges of the Supreme Court. It is alsomeasured by the right of the profession, whose trustees we are, toclaim that we should satisfy ourselves that re-enrolment will notinvolve some further risk or degradation to the reputation of theBar”
These words are of intense relevance here, though this is not acase of re-enrolment.
For the foregoing reasons, the Rule is made absolute and I directthat the respondent be removed from office as an Attorney-at-Lawand that his name be struck off from the Roll of Attorneys-at-Law.
P. S. DE SILVA, C. J. -1 agree.
RAMANATHAN, J. – I agree.
Rule made absolute.
IN RE, SRILAL HERATH