Advanta India Limdted v. B.N. Shivanna

1. C.C.C 12/2002 is initiated suo-moto whereas CCC.7/2002 is initiated at the instance of aggrieved private party. As the accused, nature of the contempt commitbsd by the accused, facts and evidence in both these cases being common, we have taken up them together for trial and final disposal.

2. The brief common facts leading to the present contempt cases are as follows;-

3. The complainant (in C.C.C.7/2002) is a Company registered under the Companies Act. It is engaged in business of production and distribution of high-quality hybrid seeds, which are sold throughout the State of Karnataka and other parts of the country through various distributing agencies.

4. The accused B.N, Shivanna is a practising advocate at Bangalore. It is not in dispute that initially he was appointed as a marketing executive of the Company and later resigned to complete bis law study. In the year 1999 he was retained as legal adviser/counsel initially till 2001 and later permanently appointed on a regular basis as the company's advocate on the role of the company.

5. It is alleged that having good knowledge of the company's working both in the capacity of marketing executive and later as legal adviser, he gained the confidence of the company and it is alleged that he misused the weaknesses of the company's naiveness in the legal field to his advantage.

6. It is alleged that taking advantage of the launching of criminal cases in various courts in Karnataka against various producers and distributers of the seeds (not the present company) under The Seeds Act for the alleged producing and selling spurious/sub-standard seeds by various agriculturists, he created an atmosphere with the company to make them believe that large number of criminal cases have been filed against this company and its officials also in various courts in the State.

7. In this regard it is alleged that the first step taken by the accused was by making appearance of a policeman with summonses/warrants almost on regular basis at the head office and thereby make believe the higher officials of the company that number of criminal cases have been filed against the company and its officials and there is an urgent need to take immediate action in this regard.

8. It is alleged that in order to avoid the warrants, the accused who was invariably present during such appearance of the alleged policeman, he used to have “talks” with the police and send him out and later convince the officials that he has ‘arranged’ for the avoidance of warrants being executed.

9. Thus it is alleged that the accused created an impression of launching of several hundreds of numeral cases against the company and its officials and by way of alleged appearance of the said police with warrants, an imminent danger of being arrested which he had so far successfully(?) avoided. In this regard it is also alleged that as an employed legal adviser/law officer of the company, he emphasized his visits to the courts at various places, engage services of local advocates to defend the company and its officials in these cases.

10. The next stage was to advise the Company to file criminal petitions in the High Court of Karnataka for challenging these criminal proceedings alleged to be pending in various courts at Hubli, Mysore, Chitradurga, Bellary, Sandur, Raichur etc. In this regard it is seated that the accused wrote to the company that it will have to pay a sura of Rs. 10,000 towards Court fee in each of these proposed filing of criminal petitions in the High Court apart from other miscellaneous expenses like his personal fees, the typing and other expenses etc. It is stated that as this advise was from their own legal adviser, the company believed the same.

11. The next stage in this alleged fraud devised by the accused is sending an intimation to the company that the Court fee of Rs. 10,000/- in each cases has to be paid through stamps to be purchased from a stamp vendor by name Smt. S. Gauri recognized by Advocates Association, Bangalore.

12. Thus having convinced by the bonafide (sic) efforts being made by the accused to protect the company's interest, it is stated that whenever there was intimation of criminal petition being filed through the accused, the company used to send cheques in the name of Smt. S. Gauri, as well as cheques for various amounts mentioned by the accused in his communications towards his professional charges and other expenses.

13. It is alleged that the first incident of a police constable coming to the office of the Company took place on 22-11-2000, on which date he is alleged to have brought 36 warrants against the company and its officials and later on various dates the police constable alleged to have come with warrants of different courts like Hubli (59 cases), Mysore (22 cases), Bellary (27 cases), Chitradurga (32 cases), Sandur (44 cases) and other places also.

14. Thus it is alleged that the accused created an impression of filing of more than 500 criminal cases by various persons against the company and its officials, for which he advised that they are required to be challenged in the High Court of Karnataka by filing individual criminal petitions and in this regard a Court fee of Rs. 10,000 in each case has to be paid. It is alleged that in all a sum of Rs. 62 lakhs was paid by the company through cheques in the name of the accused as well as Smt. Gauri the alleged stamp vendor.

15. It is also alleged that the accused also sought some payments on the pretext of payment of professional charges to the advocates, who were supposed to have been engaged by him to represent the company in various sub-ordinate courts in the State, Thus in all, according to the complainant a sum of Rs. 72 lakhs have been collected by the accused apart from his professional charges.

16. In spite of such spending of large amount as the accused was unable to produce any results, the company stated to have enquired with the accused, but the accused went on giving lame explanations. However, as these explanations were found to be unsatisfactory, the company insisted upon the accused to produce records as to the payments of court fees and filing of the cases.

17. It is alleged that after putting much pressure, the accused alleged to have produced a copy of the order dated 3-10-2001 alleged to have been passed by Hon'ble Justice G. Patri Basawauagouda of Karnataka High Court showing that in all 341 Criminal Petitions filed by the company have been allowed by the High Court of Karnataka.

18. Thereafter, incidentally when the company came to know that no Court fee to the tune of Rs. 10,000 was required to be paid in criminal petitions filed before the High Court, company made discrete enquiries and learnt that such heavy court fee is not at all required to be paid in such type of cases. As such, suspecting bona fides of the accused, the company when enquired with the Commissioner of Stamps, found that there exists no person by name Smt. S. Gauri who has been granted license for stamp-vending and the license number indicated in the receipt is improbable as the serial number indicated in the receipt is yet to be achieved in the seriatim of issuance. On enquiry it was also revealed that said person has no connection with the advocates Association, Bangalore, as is represented by the accused. Thereafter the company also came to know that said Smt. S. Gauri is none else than the mother-in-law of the accused and is only a house wife and not a stamp vendor and further the account cheques issued in her name were in fact being operated by the accused himself.

19. Shocked by this revelation when the company probed further it also came to know that the alleged cases filed all over the State as per the say of the accused were non-existent. Thereafter, the company wrote to the Registrar of High Court of Karnataka along with the copy of the order alleged to have been passed by the High Court of Karnataka and learnt that neither such order has been passed nor such cases have been filed in the High Court of Karnataka.

20. As such, as the company was convinced that the accused has played a fraud upon them in the name of High Court of Kamataka especially, the production of the fabricated order and as such, has abused the process of law and interfered with administration of justice and hence filed the contempt proceedings. Similarly, on coming to know of the fraud, the High Court itself suo moto initiated contempt proceedings.

21. After issuance of the notice to the accused and on his appearance, after hearing the accused and the prosecutor, charges came to be filed. As the accused denied the charges he was tried. The prosecution relied upon evidence of 5 witnesses and got marked several documents. The accused did not lead any oral evidence but only got marked several documents.

22. We have heard the prosecutor as well as the defence counsel at length and perused the records in detail.

23. So far as the alleged judgment of this Court produced by the accused before the company is concerned, undisputedly, the same one is created or a concocted and false document The enquiry of the registry of this Court has found that no such cases have been filed, registered nor any order is pronounced by Hon'ble Justice G. Patri Basavangouda on 3 October 2001.

24. The bare perusal of the alleged judgment dated 3 October 2001, on the face of it, it is apparent the same is created one. This judgment is supposed to be rendered by Hon'ble Justice G. Patri Basavanagowda (now retired on attaining superannuation). The perusal of the judgment to any trained legal eye would show that this cannot at all be a judgement rendered by any Judge much less an experienced High Court Judge like Hon'ble Justice Patri Basawanagouda. At the top of the csuse title a list of 318 cases have been mentioned. What is to be noted is neither criminal petition number nor criminal case numbers registered in various courts in Karnataka (318 cases) is mentioned as follows:

Total No. of cases

1.JMFC Hunsur41 cases2.JMFC II Hubli36”3.JMFC Ron59”4.JMFC Chitradurga32”5.JMFC Bellary27”6.JMFC Sandur44”7.JMFC Hunsur44”8.JMFC Priyapatna35”Total318 cases

25. It is to be noted that no criminal petition numbers registered in the High Court are mentioned which is contrary to the procedure prescribed.

26. The name of the advocate for the petitioners, the Managing Director Advanta India Ltd., Bangalore, and its officials is mentioned as Sbri B.N Shivanna, who is none else than the accused herein.

27. Even the body of the alleged judgment compared with the earlier announcement of the Hon'ble Judge with which we are familiar, it can be definitely said that this is not the language of the Hon'ble Judge.

28. Apart from the report of the registry of this Court, we are also satisfied prima facie that the judgment alleged to have been passed by this Court is a created and concocted document.

29. We are aware of the fact that in this regard the accused is being tried in a criminal case filed on behalf of the Court itself, which is pending trial. As such, this Court at this stage cannot go into in detail the evidence produced as to the culpability of the accused in the alleged crime. However, as the question before us is as to whether the accused has committed criminal contempt of court, only for the limited purpose we have glanced through the evidence.

30. It is to be noted that the only contention urged by the counsel for the accused in this contempt petition is also that if the court gives any findings regarding the alleged involvement of the accused with the fabrication or forgery of the Court order, his defence in the trial would be lost and it would also amount to subjecting him to double jeopardy.

31. In this regard the pronouncement of the Honourable Supreme Court in the case of Bathina Ramakrishna Reddy v. State Of Madras reported in AIR 1952 SUPREME COURT 149 is worth noticing. It is observed therein that:

“sub-section 3 of Section 2 of the Contempt of Courts Act excludes the jurisdiction of High Court only in cases where the acts alleged to constitute contempt of a sub-ordinate Court are punishable as contempt under specific provisions of the Indian Penal Code, but not where these acts merely amount to offences of other description for which punishment has been provided for in the Indian Penal Code. This is clear from the language of the sub-section which uses the words “where such contempt is an offence’ and does not say “where the act alleged to constitute such contempt is an offence”. It is not correct to say that the High Court's jurisdiction is excluded even in the cases where the contempt complained of, which is alleged to constitute contempt is otherwise an offence under the IPC.”

32. In the present case what we are considering is the contemptuous act of the accused and not the offences under IPC committed.

33. As observed by the Apex Court in the case of Ram Autar Shukla v. Arvind Shukla reported in 1995 Supp (2) SCC 130 “the Contempt of Court Act deals with any conduct or act of the parries to the litigation or witnesses in any manner. The tendency on the part of the contemner in his action or conduct to prevent the course of justice is the relevant fact. Any interference in the course of justice is an affornt to the majesty of law? and therefore the conduct is punishable as contempt of court. Law of contempt is only one of the many ways in which the due process of law is prevented from being perverted, hindered or thwarted to further the cause of justice. Due course of justice means not only any particular proceeding but a broader stream of administration of justice. Due process of law is blinkered by the conduct or the act of the parties which generate tendency to impede or undermine the free flow of the unsullied stream of justice by blatantly resorting, with impunity, to fabricate court proceedings to thwart fair adjudication of dispute and its resultant end. If the act complained of undermines the prestige of the court all causes hinder runs in the discharge of the due course of justice or tends to obstruct the course of justice, it is sufficient that the conduct complained of constitutes contempt of court and liable to be dealt with in accordance with law ……production of fabricated copy of the court proceedings thus constitute contempt of court, as it tends to interfere with the course of justice in legal proceedings to gain unfair advantage.” Hence, in our view, the offences are punishable under IPC though may overlap this aspect, in the contempt of court case, this court is required to consider and if necessary punishing the accused for the conduct and not the actual act which may also be an offence under IPC. As such there is no double jeopardy involved in the present case and there is no bar for this Court to consider the contemptuous action of the deceased.

34. As such without going in detail and discussing the same, as to the actual detail facts and evidence on record command as the same may affect the rights of the accused during the trial, we have considered the evidence for the limited purpose.

35. In the present case the prosecution has prima facie succeeded in showing that the accused had collected a huge sum of money under the pretext of paying Court fee of Rs. 10,000/- in each of the alleged 318 criminal petitions filed in the High Court though no such cases are filed by the accused on behalf of the company in this Court. It is not much in dispute that in the none of the criminal cases be it criminal petition, criminal appeal or criminal revision petition, any aggrieved party is required to pay a Court fee of Rs. 10,000/- in each case. This act of collection of such huge amount by the accused as is evident prima facie from the various letters, communications addressed by him to the company, itself in our view, constitutes contempt that is to say by giving a wrong impression to the company that courts are collecting huge Court fee from the accused in criminal cases and thereby make tend to lower the prestige of the court also apart from this in fect is totally false.

36. Apart from this illegal impression created by the accused - an advocate with the client, tire conduct of the accused in diverting the alleged Court fee to a fictitious stamp vendor who is none else than his mother-in-law is again an attempt to give authenticity to his malaflde intent. The evidence of the prosecution witnesses and especially the documentary evidence clearly prove this aspect Absolutely there is no cross-exmnination nor any contra indicating material is produced by the accused. Hence, in our view, prima facie it appears to us that the accused has taken advantage of the fact that he is a legal advisor/advocate of the company, has duped it by producing a created concocted impugned order of this Court The act of the accused in fabricating the court proceedings, dated 3 October, 2001 alleged to be passed by Honourable Justice G. Patri. Basawanagouda and producing the same before the company as authenticate, in our view, tends to interfere with the course of justice in legal proceedings to gain unfair advantage and is not an innocent act. It is apparent that it is the accused alone, who stands to gain by fabricating the court proceedings and as such, he has the necessary animus or mens rea to fabricate this court's order. In our view, to enable the courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, fabrication and motivated falsehood have to be dealt with, without which it would not be possible for any court to administer justice in the true sense and more importantly to the satisfaction of those who approach it as a temple of justice, in the hope that truth would always prevail.

37. The Hon'ble Supreme Court in the case of ADVOCATE GENERAL, STATE OF BIHAR v. MADHYA PRADESH KHAIR INDUSTRIES reported in (1980) 3 SCC 311 “while we are conscious that every abuse of the process ot court may not necessarily amount to contempt of court, abuses of the process of the court calculated to hamper the due course of the judicial proceedings or orderly administration of jnstice, we must say is the contempt of court. It may be necessary to punish as a contempt, a course of conduct which abuses and makes a mockery of judicial process and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice.”

38. Similarly the observation of the Apex Court in the case of CHANDRA SHASHI v. ANIL KUMAR reported in 1994 AIR SCW 4994 that “anyone who takes recourse to fraud, deflects the courts of judicial proceedings or if anything is done with oblique motive, the same interferes with the administration of justice. In an appropriate place, the mens rea may not be clear or may be obscure, but if the act or conduct tends to undermine the dignity of the court or prejudice the party or impedes or hinders the due course of judicial proceedings or administration of justice, it would amount to contempt of court”.

39. In our view, the work ‘interfere’ means in the context of subject any action which checks or hampers the functioning or hinders or tends to prevent the performance of duty in the normal course on an attempt of impede or andercnine the majesty of the court. The present cumulative acts of the accused, in our view, would amount to undermine the dignity and the majesty of the court also apart from interference with the court normal prececdinggs and procedures.

40. Hence, we find that the accused has committed Chriminal contempt of the court and as such, is liable to be punished accordingly.

ORDER REGARDING SENTENCE

41. Heard the learned Counsel for the accused regarding the sentence. The submissions made by the learned Counsel is that some leniency be shown to the accused since he is a practicing Advocate.

42. Having considered the facts and circumstances of the case and especially keeping in view the fact that the accused, who is a practicing Advocate has misused not only the trust of the litigant entrusted with him but also has created forged or concocted judgment/order in the name of this Court. Such action not only tends to lower the dignity of the Court but also would lower the prestige of the Court in the eyes of the public litigant. Keeping in view the seriousness of such act, in our view, it is desirable to impose maximum sentence awardable under the Act Hence, we sentence the accused to simple imprisonment for a period of 6 months and with a maximum fine of Rs. 2000/- in default to undergo S.I for a further period of one month.

43. The Registrar (Judicial) of the High Court is directed to prepare the warrant of commitment and detention in Form No. 3 as is required and take further action for the accused to undergo punishment.

44. At this stage, the learned Counsel for the accused makes oral submission that the sentence be suspended as the accused intends to prefer en appeal against this order.

45. Taking into consideration the peculiar facts and Section 19 of the Contempt of Courts Act, in our view, the sentence imposed is suspended for a period of - 4 - weeks from today.