Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1038-1039 OF 2004
B.N. Shivanna ...Appellant
Versus
Advanta India Limited & Anr. ...Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. These two appeals have been filed against the judgment and
order passed by the High Court of Karnataka at Bangalore in
CCC(Crl.) Nos. 7 and 12 of 2002 dated 18.8.2004 by which the
appellant has been convicted for committing criminal contempt of
court and has been awarded the sentence of simple imprisonment for a
period of six months along with a fine of Rs.2,000/-, in default, to
undergo simple imprisonment for a further period of one month.
2. Facts and circumstances giving rise to these appeals are that the
appellant was enrolled as an advocate on 14.8.1998 and since then he
has been practicing in the High Court of Karnataka at Bangalore. Prior
to joining the Bar, he had been working for the respondent company
as Marketing Executive. Being well known to the officials of the
company, he was engaged as Retainer for the Company and thus, the
appellant used to report to the company’s officials about the progress
of its cases pending in various courts in Karnataka. However, on
receiving some orders purported to have been passed by the High
Court of Karnataka, the officials of the company became suspicious
and verified from the original record, and then submitted a complaint
to the High Court that the appellant had furnished to the company
copies of fabricated and forged orders purported to have been passed
by the Karnataka High Court. On the basis of the same, criminal
contempt proceedings were initiated suo motu by the High Court
against the appellant by registering a case CCC(Crl.) No. 12 of 2002,
whereas CCC(Crl.) No. 7 of 2002 was initiated at the instance of the
respondent company. The High Court took cognizance under the
provisions of the Contempt of Court Act, 1971 (hereinafter referred to
as `Act 1971′) against the appellant. The court proceeded with the
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allegations that the appellant had taken advantage of his position
telling the said company’s officials falsely that criminal cases have
been launched in various courts in Karnataka against various
purchasers and distributors of seeds under the Seeds Act for the
alleged producing and selling of the spurious/sub-standard seeds by
the agriculturists. The appellant made the officials of the respondent
company believe that a large number of criminal cases had been filed
against the company and its officials in various courts in Karnataka.
3. In this regard, it was alleged that the appellant sent a policeman
possessing summons/warrants, almost on regular basis, to the Head
Office of the company and thereby made the higher officials of the
company believe that a number of criminal cases had been filed
against the company and its officials and that there was an urgent need
to take immediate action in that regard. Subsequently, the appellant
told the company officials that he would arrange for avoidance of the
warrants being executed against them, though there was imminent
danger of officials being arrested, which he had so far successfully
avoided.
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4. The appellant advised the company officials to file criminal
petitions in the High Court of Karnataka for quashing of the said
criminal proceedings alleged to be pending in the courts at Hubli,
Mysore, Chitradurga, Bellary, Sandur, Raichur etc., and the appellant
asked the company in writing to pay a sum of Rs.10,000/- towards
the court fee in each case for filing of criminal petitions before the
High Court in addition to other miscellaneous expenses like his
professional fee, typing etc. The company having full faith in the
appellant remitted the said amount of court fee of Rs.10,000/- in each
case for purchasing the court fees from the vendor, namely, Smt. S.
Gauri, who was none other than the mother-in-law of the appellant.
The company sent cheques in the names of Smt. S. Gauri as well as
the appellant towards the court fees and his professional charges and
other expenses. As the appellant had told the officials of the company
that more than 500 criminal cases had been filed by various persons
against the company and its officials, a sum of Rs.62 lakhs was paid
by the company through cheques in the name of the appellant as well
as Smt. S. Gauri, the alleged stamp vendor. The appellant also got a
huge amount from the company under the pretext of payment of
professional charges to other advocates purported to have been
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engaged by him to represent the company in various subordinate
courts of the State. Thus, in all, according to the company, a sum of
Rs. 72 lakhs had been paid to the appellant apart from his professional
charges. In order to justify his bonafides and to show the result of his
professional engagement and on enquiry by the company, the
appellant is alleged to have produced a copy of the order dated
3.10.2001, purported to have been passed by Hon’ble Mr. Justice G.
Patri Basavanagowda of Karnataka High Court, showing that 341
criminal petitions filed by the company, had been allowed by the High
Court and criminal proceedings launched against the company in
those cases stood quashed.
5. It was, in fact, later on when the company’s officials came to
know that no court fee was payable in criminal cases filed before the
High Court, that it made discreet inquiries and learnt that the amount
had been collected by the appellant in the name of his mother-in-law
Smt. S. Gauri, the alleged stamp vendor, fraudulently. On further
inquiry, said officials came to know that the alleged stamp vendor
Smt. S. Gauri was only a housewife and not a stamp vendor and the
bank account for which the cheques were issued in her name, was
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being operated by the appellant himself, and no case had ever been
filed in any subordinate court against the said company.
6. Being aggrieved, the company wrote a letter to the Registrar
General of the High Court of Karnataka mentioning all the afore-
mentioned facts submitting that the appellant had played fraud upon
them by providing the forged and fabricated order purported to have
been passed by the High Court of Karnataka and as such, abused the
process of law and interfered with the administration of justice. On
coming to know about these facts, the High Court itself suo motu
initiated criminal contempt proceedings against the appellant. Notices
were issued to the appellant and on his appearance, he denied the
charges and was tried for the said allegations clubbing both the cases.
The prosecution relied upon the evidence of 5 witnesses and marked a
large number of documents. The appellant did not lead any oral
evidence but marked several documents. After completing the trial,
the High Court convicted the appellant and sentenced him as
mentioned hereinabove. Hence, these appeals under Section 19 of the
Act 1971.
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7. S/Shri Tony Sebastian and P. Vishwanatha Shetty, learned
senior counsel appearing for the appellant, have submitted that
proceedings have been conducted in utter disregard to the statutory
rules framed for the purpose, namely, the High Court of Karnataka
(Contempt of Court Proceedings) Rules, 1981 (hereinafter referred to
as `Rules 1981′). It has been submitted that Rule 7 thereof has not
been complied with at the time of initiation of the proceedings. Rule
7 reads as under:
“7. Initiation of proceedings on information – (i)
Any information other than a petition or reference
shall, in the first instance, be placed before the
Chief Justice on the administrative side.
(ii) If the Chief Justice or such other Judge as
may be designated by him for the purpose,
considers it expedient or proper to take action
under the Act, he shall direct that the said
information be placed for preliminary hearing.”
In view of the above, it is submitted that none of the matter had
been placed before the Hon’ble Chief Justice on the administrative
side and the matter has been placed directly before the Division Bench
which heard the matters after having some preliminary inquiry by the
Registry of the High Court from the Secretary of Hon’ble Mr. Justice
G. Patri Basavanagowda. Thus, the proceedings stood vitiated for
non-compliance of the statutory requirement. It is further submitted
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that the respondent company has also launched a criminal prosecution
against the appellant and the police after investigating the case, has
filed the chargesheet against the appellant, and Smt. S. Gauri, his
mother-in-law. However, the trial has not started in view of the
pendency of these appeals before this Court. The appellant’s
conviction would adversely affect the case of the appellant in the said
criminal case. In fact, some officials of the company have hatched a
conspiracy to amass wealth and that is why they have enroped the
appellant and his relatives in these cases. The appeals deserve to be
allowed and the impugned judgment and order of the High Court is
liable to be set aside.
8. On the other hand, S/Shri Naresh Kaushik and Gurudatta
Ankolekar, learned counsel appearing for the respondents, have
opposed the appeal contending that the appellant being an advocate,
had indulged in criminal activity and succeeded in having embezzled
huge amount of more than Rs. 72 lacs, thus, he committed fraud upon
the company of which the appellant had earlier been an employee and
at the relevant time, a Retainer. His illegal activities amounted to
interference in the administration of justice, thus, the High Court has
rightly convicted the appellant and imposed the maximum sentence
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provided under the Act 1971. The facts and circumstances of the case
do not require any interference by this Court, the appeals lack merit
and are liable to be dismissed.
9. We have considered the rival submissions made by learned
counsel for the parties and perused the records.
The facts are not in dispute, the findings of fact recorded by the
High Court do not require any interference for the reason that nothing
has been shown to us on the basis of which it can be held that the
findings are perverse, are based on no evidence or are contrary to the
evidence on record.
10. The issue regarding the application of the provisions of Rule 7
of the Rules 1981 has to be dealt with elaborately. The appellant, for
the reasons best known to him, did not agitate this issue before the
High Court and no explanation has been furnished by the learned
counsel appearing for the appellant as under what circumstances, the
question of fact is being agitated first time in criminal appeals before
this Court. More so, such an issue cannot be agitated in absence of
any application under Section 391 of Code of Criminal Procedure,
1973 (hereinafter called Cr.P.C.) for taking the additional evidence on
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record, nor any document has been filed even before this Court to
establish that the said provisions have not been complied with.
11. In P.N. Duda v. P. Shiv Shanker & Ors., AIR 1988 SC 1208,
this Court while considering the provisions of Section 15(1)(a) and (b)
of the Act 1971 and the Contempt of Supreme Court Rules, 1975, held
that if any information was lodged even in the form of a petition
inviting the Court to take action under the Act 1971 or the provisions
of the Constitution dealing with the contempt of court, where the
informant is not one of the persons named in Section 15 of the Act
1971, it should not be styled as a petition and should not be placed for
admission on the judicial side of the court. Such a petition is required
to be placed before the Chief Justice for orders in Chambers and the
Chief Justice may decide either by himself or in consultation with the
other Judges of the Court, whether to take any cognizance of the
information. Thus, in a case where the Attorney General/Advocate
General refuses to give the consent to initiate contempt proceedings;
the aforesaid course is mandatory.
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12. In State of Kerala v. M.S. Mani & Ors., (2001) 8 SCC 82,
this Court held that the requirement of obtaining prior consent of the
Advocate General in writing for initiating proceedings of criminal
contempt is mandatory and failure to obtain the prior consent would
render the motion non-maintainable. In case, a party obtains consent
subsequent to filing the petition, it would not cure the initial defect
and thus, the petition would not become maintainable.
13. In Bal Thackrey v. Harish Pimpalkhute & Anr., AIR 2005
SC 396, this Court held that in absence of the consent of the Advocate
General in respect of a criminal contempt filed by a party under
Section 15 of the Act 1971, taking suo motu action for contempt
without a prayer, was not maintainable.
14. However, in Amicus Curiae v. Prashant Bhushan & Anr.,
(2010) 7 SCC 592, this Court has considered the earlier judgments
and held that in a rare case, even if the cognizance deemed to have
been taken in terms of the Supreme Court Rules, without the consent
of the Attorney General or the Solicitor General, the proceedings must
be held to be maintainable in view of the fact that the issue involved
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in the proceedings had far reaching greater ramifications and impact
on the administration of justice and on the justice delivery system and
the credibility of the court in the eyes of general public than what was
under consideration before this Court in earlier cases.
15. In the instant case, the question of whether the matter had been
placed before the Chief Justice in Chambers is a question of fact. The
issue has not been agitated before the High Court, rather the complaint
filed by the Registrar General of the High Court makes it clear that the
complaint itself has been filed on behalf of the High Court by the
Advocate General. It is evident from the record that case CCC(Crl.)
No. 12 of 2002 has been filed by the Registrar General of the High
Court of Karnataka (suo motu) through the Advocate General of the
State. Therefore, the issue does not require any further consideration
so far as the procedural aspects are concerned. Thus, in view of the
above, the objection raised by the appellant is mere hyper-technical
and does not want further consideration.
16. It is evident that the charges had been framed in accordance
with law on 22.7.2002 and that the appellant has been given full
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opportunity to defend himself. All the documents placed before the
High Court have been appreciated and considered.
17. So far as merit is concerned, we have been taken to various
documents and to the evidence of the witnesses. There are certain
documents to show that the appellant on certain occasions has also
rendered a good service to the company. Some documents are also on
record to show that some officials had an intention to misappropriate
the funds of the company for their personal gain with the connivance
of the appellant. However, there is nothing on record to show that
they could succeed to any extent. Therefore, the defence taken by the
appellant remains unsubstantiated. In view of the material on record,
it is evident that the huge amount of money has been collected by the
appellant in the name of his mother-in-law, Smt. S. Gauri, the alleged
stamp vendor, and the appellant has been the beneficiary thereof as
he had operated the Bank Account in her name.
18. In Re: Bineet Kumar Singh, (2001) 5 SCC 501, while dealing
with a case of similar nature, this Court held as under:
“….The sole object of the court wielding its
power to punish for contempt is always for the
course of administration of justice. Nothing is
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more incumbent upon the courts of justice than to
preserve their proceedings from being
misrepresented, nor is there anything more
pernicious when the order of the court is forged
and produced to gain undue advantage. Criminal
contempt has been defined in Section 2(c) to mean
interference with the administration of justice in
any manner. A false or misleading or a wrong
statement deliberately and wilfully made by a
party to the proceedings to obtain a favourable
order would undoubtedly tantamount to
interference with the due course of judicial
proceedings. When a person is found to have
utilised an order of a court which he or she
knows to be incorrect for conferring benefit on
persons who are not entitled to the same, the very
utilisation of the fabricated order by the person
concerned would be sufficient to hold him/her
guilty of contempt, irrespective of the fact
whether he or she himself or herself is the author
of fabrication…..” (Emphasis added).
19. It is evident from the evidence on record that the appellant had
been the beneficiary of fraud alleged in these cases. Therefore, in
view of the law referred to hereinabove, he is guilty of committing
contempt of court. The appellant had been an employee of the
respondent company and because of that relationship he had been
retained as an Advocate and he has a duty towards his clients to
behave in an appropriate manner and to protect the dignity of the
court. The conduct of the appellant has been reprehensible and it is
tantamount to as if the fence established to protect the crop starting to
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eat the crop itself. Thus, such misconduct has to be dealt with, with a
heavy hand.
20. We do find any force in the submissions made by learned
counsel for the appellant that the conviction of the appellant in these
cases would prejudice his cause in the pending criminal trial for the
reason that both cases are separate and for offences of a different
nature. It was the duty of the appellant to protect the dignity of the
court through which he has earned his livelihood.
21. The submission made by learned counsel for the appellant that
both complaints could not have been clubbed together and the
evidence recorded in the case lodged by the respondent company
could not have been read in suo motu contempt proceedings initiated
by the High Court, is preposterous, for the reason that they were not
cross cases and in both the cases, criminal proceedings had been
initiated on the basis of the same documents and the same allegations.
It is a case of betrayal of faith by a lawyer of his clients, in a case of
professional engagement.
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22. We also do not find any force in the submission advanced on
behalf of the appellant that he has already served 36 days in jail, thus,
the punishment imposed by the High Court may be reduced.
Considering the gravity of the charges, such a course is not warranted
and no lenient view is permissible in the facts and circumstances of
the cases.
23. In view of the above, the appeals lack merit and are accordingly
dismissed. We request the learned Chief Judicial Magistrate,
Bangalore to take the appellant into custody and send him to jail to
serve the remaining part of the sentence forthwith. A copy of the
order may be transmitted by the Registry of this Court to the learned
Chief Judicial Magistrate, Bangalore for taking appropriate further
steps.
………………………………J.
(P. SATHASIVAM)
………………………………J.
(Dr. B.S. CHAUHAN)
New Delhi,
March 14, 2011
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