In the case of Arunachal Pradesh vs- Tai Ngomdir , 2009 94) GLT 939, this Court has held that admission by an accused even in criminal proceeding can be taken into consideration to record conviction along with other corroborative evidence. The aforesaid view has been taken after consideration of Judgments passed by the Hon ble Supreme Court rendered in the case of Pakala Narayana Swami Vs. the King Emperor (AIR 1939 PC 47), Nishi Kanta Jha vs- The State of Assam( AIR 1969 SC 422), Kesoram Bora vs- State of Assam, ( AIR 1978 SC 1096), CBI vs- V.C.Shukla (AIR 1998 SC 1406)
This Appeal under Section 374 (2) of the Criminal Procedure Code, 1973 has been filed by the convict challenging the Judgment and order dated 30.10.2010 passed by the learned Additional Sessions Judge ( Adhoc) No.2, Kamrup, in Sessions Case No. 113 (K)/ 2000.
2.By this impugned Judgment, the learned Additional Sessions Judge has convicted the appellant under section 403 and 406 of the Indian Penal Code (IPC) and he has been sentenced to undergo rigorous imprisonment for 3(three) months and 6 (six) months with a fine of Rs. 5,000/- with default sentences for respective offences.
3.Being aggrieved with the conviction and sentence , the convict has preferred this appeal.
4.Heard Mr. T B Bikash, learned counsel for the appellant. Also heard Mr. B S Sinha, learned Addl. P.P. for the State.
5.I have also gone through the impugned Judgment and evidence proffered by the prosecution in the Trial Court. The defense case was of total denial and no evidence in defense was laid.
6.The appellant was a practicing lawyer at Guwahati at the relevant time. The appellant was also a penal lawyer of State Bank of India.
7.In the night of 30.04.1996, a dinner was arranged by the Judicial Officers to bid farewell to Sri P Kalita, Special Judge, Assam, Guwahati in the District Court complex. On the same night, fire took place in the Court campus resulting into burning of good numbers of records to civil suits/ money suits. Accordingly, an FIR was lodged by the then Assistant District Judge, Sri D K Mahanta, Kamrup, Guwahat and parallely the matter was also taken up by the Gauhati High Court in a writ petition. Finally the case was handed over to the CBI .
8.During investigation, it was gathered that the majority of the records burned down were of money suitss filed by the accused on behalf of the State Bank of India. Hence, the Investigating Officer also interrogated the Bank Officer and came to a conclusion that the accused had filed many cases without depositing adequate Court fees and as such needle of suspicion for the offence of mischief by fire was pointed towards the appellant. At the same time, the Investigating Officer also came to know that the accused had also mis-appropriated / defalcated a sum of Rs. 1,58,533.45 paise by way of filing money suits without depositing ad-voleram court fee stamp. Accordingly, chargesheet was submitted on 29.07.1998 under section 420/ 403/ 406/ 409/ 436 of the IPC.
9.In order to establish the aforesaid offences, the prosecution examined altogether 10(ten) witnesses. It is gathered that except the Assistant General Manager of SBI, all the remaining witnesses have confined their deposition regarding the incident of fire in the Court office. The Assistant General Manager was examined twice as PW-3 and PW-8 and this witness has alleged that the appellant was regularly paid for purchasing court fee, stamps and also to meet filing expenses and professional fees. But instead of purchasing court fees, the accused/ appellant filed money suits without depositing court fees and consequently large numbers of money suits were dismissed for non-payment of court fees. The aforesaid Bank Officer has also proved issuance of six numbers of cheques for a sum of Rs.1,06518.30 paise and also the notice issued by the Bank to the appellant on 20.7.1996 asking the accused to refund a sum of Rs. 1,45,526.78 paisa which were not utilized by him for purchasing court fees. The aforesaid cheques have been marked as Exts.3 to 8. The Bank Officer (PW-3 and 8) has also proved letters dated 14.7.1997 and 24.03.1998, written by the accused to the Bank, whereby a sum of Rs. 30,000/- was refunded and praying for time to refund the balance amount after disposal of the complaint to the Bar Council. Exts. 12 and 14 are the letters of the accused and Ext. 13 is the cheque of Rs. 30,000/-. In view of these letters, which amounted to admission of the accused for not utilizing the money paid by the Bank on account of court fees, the Trial Court has convicted the appellant under section 403 and 406 of the IPC.
10.The Trial Court acquitted the appellant from the remaining charges. Hence, I confine myself to the proof of the charges of misappropriation and criminal breach of trust only. Mr. Bikash, learned counsel for the appellant submitted that neither PW-3/ PW-8 nor any other witness gave complete details as to against which suit the amount was paid by Bank and what was the deficit court fee and as to how many suites were dismissed for default for non- payment of court fees and as such the appellant deserves to be given benefit of doubt. After going through the evidence of PW-3 and PW-8 , I find that the accused did not specifically dispute the payments received by him from the bank and also the allegation of filing suits without depositing ad-voleram court fees. The only suggestion given to the aforesaid witness was that the money received from the bank included his professional fee. However, the fact remains that the accused had refunded a sum of Rs.30,000/- vide letter dated 14.07.1997 and this refund was made on receipt of the notice from the Bank in the month of July,1996. In the said notice, a specific allegation was made that for non-deposit of court fees many suits were dismissed resulting into huge loss to the bank. Along with the notice (Ext.1), a list of suits filed by the accused during the year 1991-1992 with details of depositing court fees and deficit court fees was also annexed. However, while refunding the sum of Rs.30,000/-(Ext. 12), accused never disputed the allegation made in the notice dated 20.07.1996 and the factual details given in the statement. Not only that vide letter dated 24.03.1998, the accused sought time for refund of the money on the following ground:
Please refer to your letters regarding the above matter. In this context, I would like to inform you that I am prepared to pay the balance amount but for the complaint lodged by you before the Bar Council has prevented me from paying any more amount apprehending double jeopardy. Therefore, I have to wait and see till the disposal of the said complaint and in the event of your withdrawal/non- prosecution of the same, I shall pay the balance.
13.In the case of Arunachal Pradesh vs- Tai Ngomdir , 2009 94) GLT 939, this Court has held that admission by an accused even incriminalproceeding can be taken into consideration to record conviction alongwith other corroborative evidence. The aforesaid view has been taken after consideration of Judgments passed by the Hon ble Supreme Court rendered in the case of Pakala Narayana Swami Vs. the King Emperor (AIR 1939 PC 47), Nishi Kanta Jha vs- The State of Assam( AIR 1969 SC 422), Kesoram Bora vs- State of Assam, ( AIR 1978 SC 1096), CBI vs- V.C.Shukla (AIR 1998 SC 1406)
14.In the case before me, the Bank Officer has given a detail version as to how the money was mis-appropriated by the appellant. Besides this, PW-9 , Sheristedar of the court has deposed that after the incident of fire, he had prepared an inventory of pending title suits and money suits and the lists have been marked as Exts. 15 and 16. After going through the list also, I find that majority of the cases were filed affixing only court fee of Rs.1.00 of Rs.1.10 paise. PW-9 has further deposed that the accused Braja Saikia used to file suits with deficit court fee . In this way, PW-9 is a corroborating witness.
15.For the foregoing reasons, I hold that the appeal is bereft of any merit. Consequently, the conviction are hereby upheld.
16.Before making any comment on the quantum of sentence, I would like to refer to certain standards laid down by the Bar Council of India in the Bar Council of India, Rules. Chapter-II of Part VI deals with the professional standard and etiquette of lawyers. The preamble of Chapter-II as well as Clauses 25 and 26 relates to the duty of the lawyers towards the client also needs to be looked into and taken into consideration. For ready reference, the Preamble of Chapter-II of Clause 25 and 26 are reproduced below: Preamble An advocate shall, at all times, comfort himself in a manner befitting his status
as an officer of the court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the forgoing obligation, an advocate shall fearlessly uphold the interest of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned.
25.An advocate should keep accounts of the client s money entrusted to him, and the accounts should show the amount received from the client or on is behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.
26.Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.
17.In my considered opinion the instant case is a classic example of total disregard to the professional ethics to be maintained by a lawyer and the appellant has grossly misused his status and position and privileges. Hence, the sentence awarded to the appellant do not deserve to be interfered with.
18.In the result, the appeal stands dismissed. The appellant is directed to surrender in the Court of Additional Sessions Judge, Kamrup, Guwahati forthwith to serve out the remaining part of the sentence and also deposit the fine amount. If the accused fails to surrender immediately before the Trial Court, it shall be at liberty to compel his surrender in accordance with law.
19.The Registry is directed to return the LCR with a copy of this Judgment to the Trial Court immediately.
JUDGE
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.An advocate should keep accounts of the client s money entrusted to him, and the accounts should show the amount received from the client or on is behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.
26.Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.
Gauhati High Court
Braja Saikia vs The State Of Assam on 21 September, 2010
This Appeal under Section 374 (2) of the Criminal Procedure Code, 1973 has been filed by the convict challenging the Judgment and order dated 30.10.2010 passed by the learned Additional Sessions Judge ( Adhoc) No.2, Kamrup, in Sessions Case No. 113 (K)/ 2000.
2.By this impugned Judgment, the learned Additional Sessions Judge has convicted the appellant under section 403 and 406 of the Indian Penal Code (IPC) and he has been sentenced to undergo rigorous imprisonment for 3(three) months and 6 (six) months with a fine of Rs. 5,000/- with default sentences for respective offences.
3.Being aggrieved with the conviction and sentence , the convict has preferred this appeal.
4.Heard Mr. T B Bikash, learned counsel for the appellant. Also heard Mr. B S Sinha, learned Addl. P.P. for the State.
5.I have also gone through the impugned Judgment and evidence proffered by the prosecution in the Trial Court. The defense case was of total denial and no evidence in defense was laid.
6.The appellant was a practicing lawyer at Guwahati at the relevant time. The appellant was also a penal lawyer of State Bank of India.
7.In the night of 30.04.1996, a dinner was arranged by the Judicial Officers to bid farewell to Sri P Kalita, Special Judge, Assam, Guwahati in the District Court complex. On the same night, fire took place in the Court campus resulting into burning of good numbers of records to civil suits/ money suits. Accordingly, an FIR was lodged by the then Assistant District Judge, Sri D K Mahanta, Kamrup, Guwahat and parallely the matter was also taken up by the Gauhati High Court in a writ petition. Finally the case was handed over to the CBI .
8.During investigation, it was gathered that the majority of the records burned down were of money suitss filed by the accused on behalf of the State Bank of India. Hence, the Investigating Officer also interrogated the Bank Officer and came to a conclusion that the accused had filed many cases without depositing adequate Court fees and as such needle of suspicion for the offence of mischief by fire was pointed towards the appellant. At the same time, the Investigating Officer also came to know that the accused had also mis-appropriated / defalcated a sum of Rs. 1,58,533.45 paise by way of filing money suits without depositing ad-voleram court fee stamp. Accordingly, chargesheet was submitted on 29.07.1998 under section 420/ 403/ 406/ 409/ 436 of the IPC.
9.In order to establish the aforesaid offences, the prosecution examined altogether 10(ten) witnesses. It is gathered that except the Assistant General Manager of SBI, all the remaining witnesses have confined their deposition regarding the incident of fire in the Court office. The Assistant General Manager was examined twice as PW-3 and PW-8 and this witness has alleged that the appellant was regularly paid for purchasing court fee, stamps and also to meet filing expenses and professional fees. But instead of purchasing court fees, the accused/ appellant filed money suits without depositing court fees and consequently large numbers of money suits were dismissed for non-payment of court fees. The aforesaid Bank Officer has also proved issuance of six numbers of cheques for a sum of Rs.1,06518.30 paise and also the notice issued by the Bank to the appellant on 20.7.1996 asking the accused to refund a sum of Rs. 1,45,526.78 paisa which were not utilized by him for purchasing court fees. The aforesaid cheques have been marked as Exts.3 to 8. The Bank Officer (PW-3 and 8) has also proved letters dated 14.7.1997 and 24.03.1998, written by the accused to the Bank, whereby a sum of Rs. 30,000/- was refunded and praying for time to refund the balance amount after disposal of the complaint to the Bar Council. Exts. 12 and 14 are the letters of the accused and Ext. 13 is the cheque of Rs. 30,000/-. In view of these letters, which amounted to admission of the accused for not utilizing the money paid by the Bank on account of court fees, the Trial Court has convicted the appellant under section 403 and 406 of the IPC.
10.The Trial Court acquitted the appellant from the remaining charges. Hence, I confine myself to the proof of the charges of misappropriation and criminal breach of trust only. Mr. Bikash, learned counsel for the appellant submitted that neither PW-3/ PW-8 nor any other witness gave complete details as to against which suit the amount was paid by Bank and what was the deficit court fee and as to how many suites were dismissed for default for non- payment of court fees and as such the appellant deserves to be given benefit of doubt. After going through the evidence of PW-3 and PW-8 , I find that the accused did not specifically dispute the payments received by him from the bank and also the allegation of filing suits without depositing ad-voleram court fees. The only suggestion given to the aforesaid witness was that the money received from the bank included his professional fee. However, the fact remains that the accused had refunded a sum of Rs.30,000/- vide letter dated 14.07.1997 and this refund was made on receipt of the notice from the Bank in the month of July,1996. In the said notice, a specific allegation was made that for non-deposit of court fees many suits were dismissed resulting into huge loss to the bank. Along with the notice (Ext.1), a list of suits filed by the accused during the year 1991-1992 with details of depositing court fees and deficit court fees was also annexed. However, while refunding the sum of Rs.30,000/-(Ext. 12), accused never disputed the allegation made in the notice dated 20.07.1996 and the factual details given in the statement. Not only that vide letter dated 24.03.1998, the accused sought time for refund of the money on the following ground:
Please refer to your letters regarding the above matter. In this context, I would like to inform you that I am prepared to pay the balance amount but for the complaint lodged by you before the Bar Council has prevented me from paying any more amount apprehending double jeopardy. Therefore, I have to wait and see till the disposal of the said complaint and in the event of your withdrawal/non- prosecution of the same, I shall pay the balance.
13.In the case of Arunachal Pradesh vs- Tai Ngomdir , 2009 94) GLT 939, this Court has held that admission by an accused even incriminalproceeding can be taken into consideration to record conviction alongwith other corroborative evidence. The aforesaid view has been taken after consideration of Judgments passed by the Hon ble Supreme Court rendered in the case of Pakala Narayana Swami Vs. the King Emperor (AIR 1939 PC 47), Nishi Kanta Jha vs- The State of Assam( AIR 1969 SC 422), Kesoram Bora vs- State of Assam, ( AIR 1978 SC 1096), CBI vs- V.C.Shukla (AIR 1998 SC 1406)
14.In the case before me, the Bank Officer has given a detail version as to how the money was mis-appropriated by the appellant. Besides this, PW-9 , Sheristedar of the court has deposed that after the incident of fire, he had prepared an inventory of pending title suits and money suits and the lists have been marked as Exts. 15 and 16. After going through the list also, I find that majority of the cases were filed affixing only court fee of Rs.1.00 of Rs.1.10 paise. PW-9 has further deposed that the accused Braja Saikia used to file suits with deficit court fee . In this way, PW-9 is a corroborating witness.
15.For the foregoing reasons, I hold that the appeal is bereft of any merit. Consequently, the conviction are hereby upheld.
16.Before making any comment on the quantum of sentence, I would like to refer to certain standards laid down by the Bar Council of India in the Bar Council of India, Rules. Chapter-II of Part VI deals with the professional standard and etiquette of lawyers. The preamble of Chapter-II as well as Clauses 25 and 26 relates to the duty of the lawyers towards the client also needs to be looked into and taken into consideration. For ready reference, the Preamble of Chapter-II of Clause 25 and 26 are reproduced below: Preamble An advocate shall, at all times, comfort himself in a manner befitting his status
as an officer of the court, a privileged member of the community; and a gentleman, bearing in mind that what may be lawful and a moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the forgoing obligation, an advocate shall fearlessly uphold the interest of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of other equally imperative though not specifically mentioned.
25.An advocate should keep accounts of the client s money entrusted to him, and the accounts should show the amount received from the client or on is behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars.
26.Where moneys are received from or on account of a client, the entries in the accounts should contain a reference as to whether the amounts have been received for fees or expenses, and during the course of the proceedings, no advocate shall, except with the consent in writing of the client concerned, be at liberty to divert any portion of the expenses towards fees.
17.In my considered opinion the instant case is a classic example of total disregard to the professional ethics to be maintained by a lawyer and the appellant has grossly misused his status and position and privileges. Hence, the sentence awarded to the appellant do not deserve to be interfered with.
18.In the result, the appeal stands dismissed. The appellant is directed to surrender in the Court of Additional Sessions Judge, Kamrup, Guwahati forthwith to serve out the remaining part of the sentence and also deposit the fine amount. If the accused fails to surrender immediately before the Trial Court, it shall be at liberty to compel his surrender in accordance with law.
19.The Registry is directed to return the LCR with a copy of this Judgment to the Trial Court immediately.
JUDGE
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