Council Of The Institute Of ... vs Dayal Singh F.C.A. And Anr.
2007 Latest Caselaw 960 Del

JUDGMENT

Madan B. Lokur, J.

1. This reference has been made to the High Court under Section 21(5) of the Chartered Accountants Act read with Chapter 7-F of the Delhi High Court Rules.

2. Notice in this reference was issued to Respondent No. 1 on 20th September, 2005 but he could not be served by the ordinary process. Accordingly, he was served by substituted service through publication in the newspaper STATESMAN (New Delhi Edition). On 29th March, 2007 despite service by publication, Respondent No. 1 did not put in appearance. Accordingly, by an order dated 19th April, 2007, it was directed that Respondent No. 1 be proceeded against ex-parte.

3. Today also, there is no appearance on behalf of Respondent No. 1.

4. The following allegations were made against Respondent No. 1 by Ashok Kumar, Superintendent of Police, CBI.

i) The Respondent No. 1 remained instrumental in getting a loan of Rs. 49.8 lakhs sanctioned from Union Bank of India, Zonal Office, New Delhi in 1989 in favor of M/s S.K. Trading Co. 9642/12, Sadar Thana Road, Delhi on the basis of forged documents such as quotations, supply orders, money deposit receipts of various firms, rent deed and rent receipts etc.

ii) The Respondent No. 1 gave a false certificate dated 22nd December, 1989 stating that M/s S.K. Trading Co. has brought the contribution required in the books on the basis of which the party got released a term loan of Rs. 12.8 lakhs from Union of India, Azadpur, Delhi Branch.

5. On the basis of the allegations, it appears that Respondent No. 1 has committed professional misconduct under Clause (5) and (7) of the Part I of the Second Schedule to the Chartered Accountants Act, 1949. These clauses read as follows:

A chartered accountant in practice shall be deemed to be guilty of professional misconduct, if he --

(1) to (4) xxx xxx xxx xxx

(5) fails to disclose a material fact known to him which is not disclosed in a financial statement, but disclosure of which is necessary to make the financial statement not misleading;

 (6)  xxx     xxx     xxx     xxx
 

(7) is grossly negligent in the conduct of his professional duties;
 (8) to (10) xxx     xxx     xxx     xxx
 

6. A copy of the complaint was sent to Respondent No. 1 with a request to send his written statement. Respondent No. 1 submitted his written statement on 5th November, 1992. The complainant filed a rejoinder thereto and after exchange of documents the matter was considered by the Council of the Institute of Chartered Accountants of India and it was held that a prima facie case was made out against Respondent No. 1 which was required to be looked into by the Disciplinary Committee of the Council.

7. The matter was taken up by the Disciplinary Committee of the Council and it submitted its report dated 16th January, 1999. A copy of the report of the Disciplinary Committee was supplied to the complainant as well as to Respondent No. 1. While the complainant did not give any written submissions on the report of the Disciplinary Committee, Respondent No. 1 gave his written submissions.

8. The representation of Respondent No. 1 was considered by the Council which came to the conclusion that he was guilty of other misconduct within the meaning of Section 22 read with Section 21(5) of the Chartered Accountants Act, 1949. On the basis of this conclusion, the Council recommended to this Court that his name be removed from the register of members for a period of one month.

9. As already mentioned above, there is no appearance on behalf of Respondent No. 1 and he has been proceeded against ex-parte. We have gone through the records of the case with the assistance of learned Counsel.

10. The defense set up by Respondent No. 1 is that he was rendering various services which included preparation of project reports, bank loan, etc. to enable his client to obtain financial assistance from various financial institutions for which he was charging a fee. He did not admit any of the allegations leveled against him.

11. It was found that Respondent No. 1 issued a certificate in favor of M/s S.K. Trading Company for getting financial assistance from some banks. The certificate issued by Respondent No. 1 reads as follows:

This is to certify that M/s S.K. Trading Co. D-33, Industrial Area, Rohtak Road, Ind. Complex, Delhi-41, has brought the contribution required in the books for availing the term loan from the bank.

For Dayal Singh & Co.

Sd/-

Chartered Accountants

12. It appears that the officers of the bank completed all paper formalities perhaps at the behest of Respondent No. 1 or at least on the basis of his certificate for disbursement of the loan. The activity of Respondent No. 1 in issuing such a vague certificate with the intention of persuading the bank to grant his client a loan amounts to other misconduct within the meaning of the Act read with the Regulations framed there under. We agree with this conclusion.

13. The lack of responsibility displayed by Respondent No. 1 clearly shows that he had acted in a manner unbecoming of a Chartered Accountant and, therefore, the Council rightly recommended removal of his name from the register of members for a period of one month.

14. We have examined the issue whether the punishment is too harsh but we find that there has to be some degree of integrity and probity which is expected of a Chartered Accountant who is regularly concerned with financial transactions and on the basis of whose recommendations and certificates financial institutions such as banks disburse loans or enter into other financial transactions.

15. Under the circumstances, we are of the view that the punishment that has been awarded to Respondent No. 1 is not unduly harsh. We accept the recommendations of the Council to the effect that the name of Respondent No. 1 be removed from the register of members for a period of one month. Necessary gazette notification may be issued by the authority.

16. The reference is disposed of.