B.N. Shivanna Vs Advanta
India Limited & ANR
J U D G M E N T
Dr. B.S. CHAUHAN, J.
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.
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 2 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.
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.
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
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 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.
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 being operated by the appellant
himself, and no case had ever been filed in any subordinate court against the
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.
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. 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:
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 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.
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 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.
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
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 9 record, nor
any document has been filed even before this Court to establish that the said
provisions have not been complied with.
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.
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.
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.
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 11 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.
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
is evident that the charges had been framed in accordance with law on 22.7.2002
and that the appellant has been given full 12 opportunity to defend himself. All
the documents placed before the High Court have been appreciated and
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.
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 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).
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 14 eat the crop itself. Thus, such misconduct has
to be dealt with, with a heavy hand.
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.
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.
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.
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.
(Dr. B.S. CHAUHAN)