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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