JUDGMENT : AMIT B. BORKAR, J. 1. Heard. 2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 3. The question that arose during the course of hearing this application is of seminal importance for the legal profession. Therefore, we have heard the parties to the application and Shri Anilkumar Mulchandani @ Anil S/o. Shankarlal Mulchandani, Advocate. Therefore, to appreciate the contention, we would present the factual backdrop as under:- The applicants have filed the present application invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure challenging the registration of the First Information Report No. 509/2021 dated 02.11.2021 registered with the non-applicant no. 1- Police Station for the offence punishable under Sections 420, 406, 409 and 120B of the Indian Penal Code read with Section 3 of the Maharashtra Protection of Interest of Depositors (In Financial Establishments) Act, 1999. The sum and substance of the averments made in the application are to the effect that the applicants and the non-applicant no. 3 have resolved their dispute amicably, and therefore the Court proceedings initiated against the applicants are required to be quashed and set aside. 4. On 23.03.2022, when we heard Shri Anil Mardikar, learned Senior Advocate, submitted that the parties to the application since have settled their dispute amicably, the case for quashing the Court proceedings against the applicants was made out. The non-applicant no. 3, in reply to the said submission, stated that though he had earlier consented to the settlement of the dispute, now he is not interested in settling the dispute with the applicants as he has not received the balance amount as agreed in Deed of Settlement dated 11.11.2021. He stated that the post-dated cheques referred to in paragraph no. 2 of the Deed of Settlement were handed over to his Advocate, Shri Anilkumar Mulchandani. However, he stated before the Court that in spite of his several requests, his Advocate refused to hand over those post-dated cheques, which were part of the settlement. He stated that due to refusal on the part of his Advocate to hand over post-dated cheques, he had not received the consideration as agreed in the Deed of Settlement. Therefore, he is not agreeable to settling the dispute with the applicants. 5. During the course of the hearing on 23.03.2022, Shri Anilkumar Mulchandani, Advocate, was not present. He stated that due to refusal on the part of his Advocate to hand over post-dated cheques, he had not received the consideration as agreed in the Deed of Settlement. Therefore, he is not agreeable to settling the dispute with the applicants. 5. During the course of the hearing on 23.03.2022, Shri Anilkumar Mulchandani, Advocate, was not present. Therefore we kept back the matter for some time. Thereafter Shri Anilkumar Mulchandani, Advocate, appeared before the Court. He stated that post-dated cheques were handed over to him by the non-applicant no. 3- Ashok Agrawal. The non-applicant no. 3 denied the factum of handing over post-dated cheques to Shri Anilkumar Mulchandani, Advocate. This court, therefore, directed parties to file their affidavits to clarify the situation of handing over the cheques to Shri Anilkumar Mulchandani, Advocate. Accordingly, Shri Anilkumar Mulchandani, Advocate appearing for the non-applicant no. 3 filed his personal affidavit dated 24.03.2022 wherein he stated as under :- “10. I say that some of the relative and Ashok Agrawal referred to various persons, which were known to me. I say that the parties informed me that though they have arrived at a Settlement, the amounts is only to be paid after Mr. Pankaj Mehadia is released on bail and/or the proceedings are quashed which every is earlier.” 6. Shri Ashok Agrawal (non-applicant no. 3) also filed his affidavit dated 24.03.2022, wherein he stated as under:- “12. I say that thereafter I had requested Advocate Shri Anilkumar Mulchandani on 18.11.2021 to handover my Four Demand Draft/Pay Order of dated 09.11.2021 and dated 11.11.2021 so as enable me to present Bank. I say that my Advocate Shri Anil Mulchandani told me that he will handover the Demand Draft/Pay Order after the applicant no. 1 is released on Bail.” . . . . . 16. I say that thereafter I had again visited the office of Advocate Shri Anilkumar Mulchandani about 5 to 6 times requesting him to give my cheque bearing No. 000254 dated 31.12.2021, cheque bearing No. 000255 dated 31.12.2021, cheque bearing No. 000256 dated 31.12.2021, drawn on Tirupati Urban Co-operative Bank Limited, Nagpur. 17. I say that though I had visited the office of Advocate Shri Anilkumar Mulchandani about 5-6 times and demanded my cheques, he had not handed over the said Cheques to me for the best reasons known to Advocate Shri Anilkumar Mulchandani. 17. I say that though I had visited the office of Advocate Shri Anilkumar Mulchandani about 5-6 times and demanded my cheques, he had not handed over the said Cheques to me for the best reasons known to Advocate Shri Anilkumar Mulchandani. I say that out of the above mentioned first three cheques as stated hereinabove is total of Rs. 50,00,000/- which is dated 31.12.2021 which will become invalid in 5-6 days. . . . .. 20. I say that considering the subsequent development that I have no objection to releasing the accused No. 1 on bail upon the receipts of my cheques from Adv Anil Mulchandani and assurance and undertaking from the accused person that they shall be honored on presentation of on due date, on failing which the settlement shall fail. However, I request the Honorable Court to not to quash the FIR and keep the present application filed by the Applicants pending till the clearance of my all the cheques stated in the Settlement Deed." 7. On 04.04.2022, during the course of the hearing, it was revealed that the non-applicant no. 3 vaguely dealt with paragraph no. 10 of the affidavit of Shri Anilkumar Mulchandani, Advocate stating that settlement was as per Deed of Settlement entered into between the applicants and the non-applicant no.3. Non-applicant no. 3 failed to take a specific stand regarding paragraph no. 10 of the affidavit dated 24.03.2022. We, therefore, permitted the nonapplicant no. 3 to file an additional affidavit to clarify his position as regards contents of paragraph no. 10 of the affidavit dated 24.03.2022. In pursuance of the said order, the non-applicant no. 3 has filed an affidavit dated 05.04.2022 wherein he has stated as under :- “5. I say that as per the Settlement Deed I was entitled to present the Demand Draft and cheques on every due date. I say that upon the execution of Affidavit on dated 18.11.2021 I had started demanding my Demand Drafts/Pay Orders and Cheques. I say that even the Affidavit dated 24.03.2022 filed on behalf of the Applicant No. 1- Shri Nikhil Kumar S/o Tulsiramji Kedia who was present with their Advocate Shri Romil Jain in the office of my Advocate Shri Anil Mulchandani nowhere states that I will be entitled to present the Demand Drafts and Cheques only upon the Applicant No. 1 being released on Bail and / or quashment of FIR. 6. I say that if there was any such condition pertaining to presentation of Demand Drafts/Pay Order and Cheques after the released of applicant No. 1 on bail and/ or quashing of FIR, then the applicants would have never agreed to allow me to present the said Demand Draft of Rs. 50,00,000- in my Bank before the release of Applicant No. 1. 7. I hereby state that since the parties have mutually agreed to present the Demand Draft and Cheques on due dates therefore, the applicants had specifically mentioned dates in the respective Cheques. 8. I say that as per Clause No. 4 in the Settlement Deed the parties had mutually agreed “that there shall be no grace period for the payment of the Cheques, however, the Parties hereto may accommodate each other making the payment, not exceeding fifteen days as enumerated in the cheques aforesaid”. I say that there was no condition on the Settlement Deed that I will be entitled to present the Demand Draft and Cheques only upon the bail of the Applicant No. 1 or Quashing of FIR.” 8. In view of the factual scenario which emerges, the following undisputed facts emerge:- i) The post-dated cheques for the amount to be paid to the non-applicant no. 3 by the applicants were handed over to Shri Anilkumar Mulchandani, Advocate. ii) Till 23.03.2022, the post-dated cheques were not handed over to the non-applicant no. 3. 9. During the course of the hearing, Shri Anilkumar Mulchandani, Advocate, submitted that the non-applicant no.3 had not demanded post-dated cheques from him. The non-applicant no. 3 is denied this fact stating that he has demanded the post-dated cheques many times. 10. Shri Anilkumar Mulchandani, Advocate, has also filed a counter-affidavit dated 24.03.2022 sworn in on 28.03.2022, wherein he has stated that the post-dated cheques were handed over to him on 11.11.2021 by the non-applicant no. 3. He further stated that if the cheques were to be returned to him on the due date as suggested in the affidavit, there was no occasion for him to retain the same. He further stated that he has retained the cheques as requested to him collectively by both sides. 11. We are not conclusively adjudicating the controversy about whether the non-applicant no. 3, in fact, demanded the cheques or not and whether Shri Anilkumar Mulchandani, Advocate, refused to hand over the cheques to non-applicant no. 3. He further stated that he has retained the cheques as requested to him collectively by both sides. 11. We are not conclusively adjudicating the controversy about whether the non-applicant no. 3, in fact, demanded the cheques or not and whether Shri Anilkumar Mulchandani, Advocate, refused to hand over the cheques to non-applicant no. 3. In view of the clear language of the Deed of Settlement (absence of clause to withhold post-dated cheques till the release of the applicant on bail or quashing of FIR) and considering the affidavit filed by the non-applicant no. 3 denying the grant of permission to withhold cheques till the release of the applicant on bail or quashing of FIR, prima facie, it appears that Shri Anilkumar Mulchandani, Advocate, had refused to hand over the cheques in spite of demand made by non-applicant no. 3. Therefore, we are prima facie holding that Shri Anilkumar Mulchandani, Advocate, was not justified in keeping the post-dated cheques with him, which was the subject matter of the settlement. Therefore, in our opinion, the facts of the present case constrain us to refer the present case to the Bar Council of Maharashtra and Goa to hold an inquiry as to whether the act of Shri Anilkumar Mulchandani, Advocate withholding post-dated cheques, amounts to misconduct within the meaning of Section 35 of the Advocates Act, 1961. 12. We are perturbed by the act of the Advocate to keep valuable security owned by the Client with him. As contemplated by Section 35 of the Advocates Act, the term misconduct assumes importance. It is well-settled law that the expression misconduct means wrongful gain and not mere error of judgment. It may be synonymous with improbable behaviour or mismanagement. It is to be construed and understood concerning the subject matter and context wherein the terms occur, taking into consideration the scope and object of the Advocates Act. One of the main objectives behind Section 35 of the said Act is to prevent the exploitation of clients at the receiving end of the Advocate's services and maintain the legal profession's integrity. 13. It is also well settled that professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated. 13. It is also well settled that professional misconduct refers to its disgraceful conduct not befitting the profession concerning the legal profession, which is not a business or trade and therefore, it must remain decontaminated. It is the duty of every Advocate to uphold professional integrity so that citizens of this Country can legally secure justice. The lawyer-client relationship is a fiduciary one; any act which is detrimental to the legal rights of clients needs to be punished. 14. The Supreme Court explored the amplitude and extent of the words “professional misconduct” in Section 35 of the Advocates Act in the case of Pralhad Saran Gupta Vs. Bar Council of India [ (1997) 3 SCC 585 ], wherein the Hon’ble Supreme Court has held that retaining amount by the Advocate which is deposited with him on behalf of the decree-holder amounts to misconduct. In John D'Souza v. Edward Ani, [ (1994) 2 SCC 64 ], it has been held by the Supreme Court that the conduct of the advocate in not returning the will even on-demand is unworthy of an Advocate belonging to a noble profession. Therefore, the Advocate has no right to withhold the will. On the other hand, he was bound in duty to return the said will when demanded because the instrument was entrusted to his custody by the testatrix, only on trust. 15. This case reminds us of memorable words of Chief Justice Marshall on Legal Ethics: “The fundamental aim of Legal Ethics is to maintain the honour and dignity of the Law Profession, to secure a spirit of friendly co-operation between the Bench and the Bar in the promotion of highest standards of justice, to establish honourable and fair dealings of the council with his client opponent and witnesses; to establish a spirit of brotherhood in the Bar itself, and to secure that lawyers discharge their responsibilities to the community generally.” 16. In our opinion, while dealing with money or any other articles or documents entrusted with the Advocate, he is expected to keep in mind the high standards of the profession and its value practised for centuries. The professional obligation of Advocates has to be distinguished from business commitments. The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The professional obligation of Advocates has to be distinguished from business commitments. The Advocates owe a social obligation to the Society while discharging professional services to the litigant. The Advocate should not commit any act by which a litigant could be deprived of his statutory and constitutional rights on account of the sublime position conferred upon him under the judicial system in the country. 17. For the reasons stated above, before disposing of this application, we deem it necessary to issue directions, which in our opinion, is required for completion of even course of justice. We, therefore, direct the Bar Council of Maharashtra and Goa to hold an inquiry into the allegations made by the non-applicant no. 3 against Shri Anilkumar Mulchandani, Advocate as to:- “Whether Shri Anilkumar Mulchandani, Advocate has committed misconduct by keeping post-dated cheques with him which was part of the settlement between the applicants and the non-applicant no. 3, which according to the non-applicant no. 3 could not fructified due to refusal on the part of Shri Anilkumar Mulchandani, Advocate to hand over the post-dated cheques to the non-applicant no.3.” 18. We, therefore, direct the Bar Council of Maharashtra and Goa to complete the inquiry within a period of one year from today. 19. We have restrained ourselves from making detailed observations on the merits of the allegations made against Shri Anilkumar Mulchandani, Advocate. We clarify that the observations made above are prima facie in nature. The Bar Council of Maharashtra and Goa shall hold Disciplinary Proceedings uninfluenced by any observations made above. 20. We direct the Registrar (Judicial) of this Court to forward a copy of this order to the Secretary, Bar Council of Maharashtra and Goa to enable the Bar Council to adopt such steps as it deems fit and necessary and to dispose of the Disciplinary Proceedings against Shri Anilkumar Mulchandani, Advocate, Nagpur. 21. At this stage, Shri Anil Mardikar, learned Senior Advocate, faced with a situation the non-applicant no. 3 is not ready to settle the matter and seeks permission to withdraw the application. He submits that the non-applicant no. 3, having pocketed an amount of 50 lakhs in terms of Deed of Settlement, cannot turn around ?50 lakhs in terms of Ded of Setlement, canot turn around withdrawing his consent for quashing the criminal proceedings against the applicants. 3 is not ready to settle the matter and seeks permission to withdraw the application. He submits that the non-applicant no. 3, having pocketed an amount of 50 lakhs in terms of Deed of Settlement, cannot turn around ?50 lakhs in terms of Ded of Setlement, canot turn around withdrawing his consent for quashing the criminal proceedings against the applicants. We are afraid that we cannot enter into said issue or justification of the non-applicant no. 3 to withdraw his consent for quashing the proceedings against the applicants. If permissible in law, it will always be open for the applicants to adopt appropriate proceedings against the non-applicant no. 3. He sought liberty to challenge the FIR registered against the applicants on merits. Since we have not dealt with the present application on merits, we grant liberty to the applicants to challenge the registration of the FIR on merits in appropriate proceedings. 22. As the applicants are seeking permission to withdraw this application unconditionally, we are disposing of this application as withdrawn. The application stands disposed of as withdrawn with liberty granted in paragraph no. 21. 23. At this stage, Shri Anil Mardikar, learned Senior Advocate, states that since the non-applicant no. 3 is not ready to settle the dispute; the cheques in possession of Shri Anilkumar Mulchandani, Advocate, need to be returned to the applicants. The non-applicant no. 3 has no objection to the return of said post-dated cheques. Shri Anilkumar Mulchandani, Advocate, has handed over the cheques to Shri Nikhil Kedia (brother-in-law of the applicant no. 1, who is in jail) for and on behalf of the applicants in court. 24. Pending application, if any, disposed of accordingly. 25. Place this application for compliance with directions contained in paragraph nos. 17 & 18 on 24.04.2023.