judgement:
ivil Appeal No. 626 of 1961.
Appeal by special leave from the judgment and order dated November 18, 1959, of the Andhra Pradesh High Court in Writ Petition No. 922 of 1956.
T.V.R. Tatachari and P.D. Menon, for the appellants.
K. Bhimasankaram and T. Satyanarayana, for the respondent.
April 10.
The Judgment of the Court was delivered by SHAH J.
On March 10, 1955, the Deputy Inspector General of Police, State of Andhra, passed an order dismissing the respondent (who was a sub inspector of police appointed on probation) from service.
On appeal to the Inspector General of Police, the order was altered into one of removal from service.
The respondent then.
moved the High Court of Andhra pradesh by a petition under article 226 of the Constitution for a writ of certiorari or other appropriate 27 writ or direction quashing the proceedings of the Inspector General of Police including his order dated September 24, 1955, and the order of the Deputy Inspector General of Police dated March 10, 1955, and for such other orders as the Court may deem fit.
The High Court quashed the two impugned orders.
Against the order passed by the High Court, this appeal is preferred with special leave.
It is necessary to set out in some detail the facts which gave rise to the departmental proceedings against the respondent resulting in his removal from service.
The respondent was at the material time in charge of the police station Kodur, Visakhapatnam District.
On February 18, 1954, an offence of house breaking and theft was reported at the police station and was registered on February 19,1954.
It was recited in the report of the Village Munsif of Vechalam that one Durgalu who was then absconding was suspected to be the offender.
This Durgalu was apprehended by the Village Munsif of Kalogotla on March 5, 1954, and was handed over to the Village Munsif of Vechalam, who in his turn sent Durgalu to Kodur police station with village servants V. Polayya, Vechalapu Simhachalam, Kodamanchali Simhachalam and Koduru Sumudram.
It is the case of the State that Durgalu was handed over to the respondent on the night of March 5, 1954, but no written acknowledgment in token of having received Durgalu from the village servants was given by the respondent, nor was any entry posted in the station diary, and Durgalu was thereafter confined in the police station from the night of March 5, 1954, without any order from a Magistrate remanding him to police custody.
On March 7, 1954, the ' respondent entrusted charge of the police station to a head constable and left for Kakinada on casual leave for five days.
He returned to Kodur on March 12, 1954.
After the departure of the respondent, 28 some constables arrested one Reddy Simhachalam and brought him to the police station in the evening of March 7, 1954.
It is the case of the State that as a result of torture by police constables Nos.
1199, 363 and 662, Reddy Simhachalam became unconscious.
The dead body of Reddy Simhachalam was found floating in a well near the police station on the morning of March 9, 1954, and an enquiry into the circumstances in which the death took place was commenced by the Revenue Divisional Officer, Narsipatnam.
In the enquiry, Durgalu made a statement that he had witnessed the torture of Reddy Simhachalam, in the police station, by the three constables.
Police constables Nos.
1199, 363 ' and 662 were then charged before the Sub Magistrate, Chodavaram, for offences under sections 304(2) and 201 read with section 114 I.P. Code, for causing the death of Reddy Simhachalam by torturing him and for causing disappearence of the evidence of his death.
Before the Sub Magistrate, Durgalu retracted his earlier statement and stated that the statement that he was an eye witness to the torture of Reddy Simhachalam was untrue and that he was induced to make that statement by the police.
He deposed that he had escaped from the custody of the village servants before he reached the police station Kodur on March 5, 1954, and that he was re arrested on March 8, 1954.
The Sub Magistrate discharged the police constables holding that once Durgalu the only eye witness turned hostile, there was no direct evidence on which even a prima facie case could be made out against them.
The record of the case before the Sub Magistrate was called by the Sessions Judge, Visakhapatnam, suo motu.
The Sessions Judge held it proved on the evidence that Durgalu was arrested on March 5, 1954 and was taken to the police station Kodur and was wrongfully confined since that date in the police station, and the story of Durgalu before the Sub Magistrate that after he was arrested on March 5, 1954 and was taken to the 29 Kodur village on that very day he had escaped from custody and that he remained in his village Vechalam could not be believed.
A departmental enquiry was commenced in May 1954: against the respondent.
The charge in the disciplinary proceedings against the respondent after it was amended ran as follows : "Reprehensible conduct in wrongfully confining a K.D, Chandana Durgalu accused in Cr.
No.17/54: of Kodur Police Station from the night of 5 3 54: to 7 3 1954: in the Police Station when he went on five days casual leave. ' ' To the charge was appended a "statement of facts" reciting inter aria, that Durgalu was apprehended by the Village Munsif, Kaligotla and was handed over to the Village Munsif, Vechalam, that Durgalu was sent by the latter with the written report with the assistance of village servants, that on the same night the latter handed over Durgalu to the respondent in the police station Kodur at about 12 mid night, with the report of the Village Munsif and demanded acknowledgment but the acknowledgment was refused by the respondent, and that the respondent did not mention these facts in any of the station records and wrongfully confined Durgalu in the police station till March 7, 1954:, when he proceeded on casual leave for five days.
This, the "statement of facts" added, constituted grave and reprehensible conduct and hence the charge.
The respondent submitted an explanation in which he submitted that Durgalu was not handed over to him on March S, 1954:, as alleged nor at any time before he proceeded on March 7, 1904:, on casual leave.
His plea was that when he proceeded on leave he entrusted charge of the police station to the head constable leaving instructions to trace Durgalu and to take action.
30 The Deputy Superintendent of Police held the departmental enquiry and submitted his report on October 27, 1954, setting out the evidence of the witnesses examined on behalf of the State and the respondent, and summing up the conclusion by reciting that the evidence in the case for the State made out a strong case against the respondent, that it was established that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif to Vechalam who in his turn sent him with the village servants to the police station Kodur, and Durgalu was handed over to the respondent on the night o.f March 5, 1954, that the story of Durgalu that after he was arrested on March 5, 1954, he escaped from the custody of the village servants and was again arrested on March 8, 1954, was false.
The report then concluded "All these facts go to show that he was arrested on the 5th without a shadow of doubt, but if the judgment of the learned Court which is based on the retracted statement of Durgalu is considered the 'sacred truth ' the delinquent may have benefit of doubt.
" This report was considered by the authority competent to impose punishment and a provisional conclusion that the respondent merited punishment of dismissal for the charges held established by the report was recorded.
A copy of the report of the Enquiry Officer was sent to the respondent and he was called upon to submit his representation against the action proposed to be taken in regard to him.
The respondent submitted his representation which was considered by the Deputy Inspector General of Police, Northern Range, Waltair.
That Officer referred to the evidence of witnesses for the State about the arrest of Durgalu on March 5, 1954, and the handing over of Durgalu to the respondent on the same day.
He observed that the evidence of Durgalu 'that after he was arrested on March 5: 1954, he had made good his escape and was again arrested on March 8, 1954, could not be accepted.
Holding that the charge 31 against the respondent was serious and had on the evidence been adequately proved, in his view the only punishment which the respondent deserved was of dismissal from the police force.
In appeal the Inspector General of Police accepted the evidence of the witnesses who had deposed that they had handed over Durgalu to the respondent on March 5, 1954.
In his view the respondent had "betrayed gross dishonesty and lack of character in falsifying the records by omitting to write what he had done and what happened in the police station, thereby .proving himself thoroughly dishonest and untrustworthy," and "showing himself unfit to hold the responsible post of a SubInspector of police," and that "his records as a probationary Sub Inspector of police are generally unsatisfactory.
and he has earned a reputation for inefficiency and lack of interest in work for weakness in dealing with his subordinates, which are all attributes that militate against his becoming useful SubInspector of Police.
" But taking into consideration his young age and inexperience, the Inspector General of Police reduced the order of dismissal into one for removal from service.
In the departmental proceeding a simple question of fact fell to be determined viz.
whether Durgalu was arrested on March 5, 1954, and was delivered over by the village servants to the respondent at police station Kodur on the night of March 5, 1954.
There is no dispute that Durgalu was arrested on March 5, 1954, and was sent by the Village Munsif, Vechalam with his report to the police station Kodur.
The only question in dispute was whether Durgalu was handed over to the respondent on March 5, 1954, as stated by the witnesses for the State.
The case of the State was accepted by the Deputy Inspect.or .General of Police who passed the order of dismissal and the Inspector 32 General of Police in appeal.
But the High Court declined to accept this view of the evidence.
In so doing, with respect it must be observed, the High Court assumed to itself jurisdiction which it did not possess.
The High Court was of the view that the conclusion of the departmental authorities was vitiated, because the Enquiry Officer dealt with the evidences of witnesses for the State, and the witnesses for the respondent separately, and the Deputy Inspector General of Police and the Inspector General of Police did not in recording their orders refer to all the evidence led before the Enquiry Officer and they "failed to appreciate the full significance of the rule concerning the onus of proving.
The rule meant that everything essential to the establishment of a charge lies on the person, who seeks to establish the charge.
It further means that the two sets of evidence in the case must not be examined separately in order to ascertain first whether those for establishing the charge have proved it and then to examine the defence in order to see how far the conclusions are unjustified.
The better approach, which has been described as the golden thread in the web of criminal law is to examine the law, the whole evidence in order to ascertain how far the liability of the person proceeded against has been established beyond reasonable doubt".
The High Court then observed that ordinarily the conclusions on questions of fact by a body or tribunal in a proceeding under article 226 of the Constitution are accepted by the High Court but that general rule does not apply "whenever an important principle of jurisprudence is discarded in reaching such findings", and since the fundamental rule that a person should be punished only after the entire evidence in the case had been considered and he is found liable beyond reasonable doubt, had not been followed, the conclusions of the departmental authorities were vitiated.
The High Court again observed that the orders passed by the departmental authorities were vitiated because of two 33 other matters: (i) that the Enquiry Officer declined to summon and examine two witnesses for the defence even though a request in that behalf was made; and (ii) that there was no charge against the respondent of "falsifying the record by omitting to write what he had done or what happened in the police station", and he had not been given an opportunity of meeting such a charge and therefore the respondent had no fair hearing consistent with the principles of natural justice.
There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Art, 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid.
The High Court is not constituted in a proceeding under article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: iris concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated.
Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent Officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under article 226 to review the evidence and to arrive at an independent finding on the evidence.
The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the 34 rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or ;where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds.
But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under article 226 of the Constitution.
The Enquiry Officer had accepted the evidence of witnesses for the Sate that Durgalu was handed over to the respondent on March 5, 1954, and the observation that the respondent may have the benefit of doubt if the judgment of the Magistrate is considered "sacred truth" appears to have been made in a somewhat sarcastic vein, and does not cast any doubt upon the conclusion recorded by him.
The Enquiry Officer appears to have stated that the judgment of the Magistrate holding a criminal trial against a public servant could not always be regarded as binding in a departmental enquiry against that public servant.
in so stating, the Enquiry Officer did not commit any error.
The first ground on which the High Court interfered with the order of the punishing authorities is therefore wholly unsustainable.
The two other grounds on which the High Court also based its conclusion, namely, refusal to summon and examine witnesses for the respondent and holding the respondent guilty of a charge of which he had no 35 notice are equally without substance.
It appears that the respondent desired to examine police constables Nos. 178, 506 and 569 to prove that Durgalu was not in the lock up till March 8, 1954.
Police constable No. 506 was examined as a witness for the respondent, and the Enquiry Officer has not accepted his evidence.
The other two witnesses were neither summoned nor examined, but it appears from the record that on September 20, 1954, the respondent promised to produce the witnesses whom he had cited in his defence.
At the hearing dated September 26, 1954, three witnesses were examined by the respondent and the respondent was given another opportunity to secure the presence of the remaining defence witnesses.
On September 27, 1954 police constable 506 was examined and it appears that the respondent expressed his desire not to examine any more witnesses.
In the proceeding of the Enquiry Officer there is a note that "your defence witnesses have been examined and such documents you required have been produced and exhibited".
The respondent subscribed his signature in acknowledgment of the correctness of that recital.
He did not raise any objection in the representation made by him before the Deputy Inspector General of Police when notice was issued on him to show cause why he should not be punished.
In the memo of appeal to the Inspector General of Police, it was submitted by the respondent that the police witnesses were to be summoned by the Enquiry Officer, and that he did not summon them.
It was also submitted that the statement signed by the respondent was only in respect of private witnesses, and not police witnesses.
But the endorsement made by the Enquiry Officer is not susceptible of any such interpretation, which refers to all witnesses for the respondent.
The record does not show that an application for summoning the police witnesses was made and the Enquiry Officer in breach of the rules declined to summon them.
We are in the light of this evidence 36 of the view that the respondent did not, after the examination of police constable No. 506, desire to examine the two police constables Nos. 178 and 569, whom he.
originally wanted to examine.
It was next urged that the findings recorded were not in respect of the charge which the respondent was called upon to answer.
The charge against the respondent was that he had wrongfully confined Durgalu on March 5, 1954, to March 7, 1954, in the police station.
In the statement of facts which accompanied the charge sheet it was stated in express terms that the respondent had not recorded in any of the diaries of the police station that Durgalu was handed over to him on March 5, 1954.
The charge and the "statement of facts" form part of a single document on the basis of which proceedings were started against the respondent and it would be hypercritical to proceed ' on the view that though the respondent was expressly told in the statement of facts which formed part of the charge sheet, that he had failed to record that Durgalu was handed over to him, that ground of reprehensible conduct ' was not included in the charge, and on that account the enquiry was vitiated.
No objection appears to have been raised before the Deputy Inspector General or even the Inspector General of police, that there was infirmity in the charge on that account, and that infirmity had prejudiced the respondent in the enquiry.
The respondent had full notice of the charge against him, and he examined witnesses in support of his defence and made several argumentative representations before the Deputy Inspector General, the Inspector General of Police and the Government of Andhra Pradesh.
In our Judgment the proceedings before the departmental authorities were regular and were not vitiated on account of any breach of the rules of natural justice.
The conclusions of the departmental 37 officers were fully borne out by the evidence before them and the High Court had no jurisdiction to set aside the order either on the ground that the "approach to the evidence was not consistent with the approach in a criminal case," nor on the ground that the High Court would have on that evidence come to a different conclusion.
The respondent had also ample opportunity of examining his witnesses after he was informed of the charge against him.
The conclusion recorded by the punishing authority was therefore not open to be canvassed, nor was the liability of the respondent to be punished by removal from service open to question before the High Court.
The appeal is allowed and the order passed by the High Court is set aside.
The petition filed by the respondent is dismissed.
There will be no order as to costs.
The order as to costs passed by the High Court will stand.
Appeal allowed.

summary/full:
The respondent was a Sub Inspector of Police in charge 01 a police station.
One D, suspected of having committed an offence, was apprehended by the village Munsif and was sent to the police station.
He was handed over to the respondent.
The respondent declined to give a written acknowledgment of having received 1)and made no entries in the station diary regarding him.
D was confined in the police station for several days without being produced before a Magistrate.
A departmental inquiry was started against him for reprehensible conduct in wrongfully confining D.
The defence set up by him was that D had never been handed over to him because he had escaped while on his way to the police station.
The Deputy Superintendent of Police, who held the enquiry, found him guilty of the charge.
The Deputy Inspector General of Police gave him a show cause notice and after considering his explanation ordered that he be dismissed from service.
On appeal, the Inspector General of Police modified the order of dismissal and converted it into one for removal from service.
The respondent filed a writ petition before the High Court challenging the validity of the order and the High Court quashed the orders.
Held that the High Court had no jurisdiction to interfere with the orders.
The High Court was wrong in its view that in a departmental enquiry the rule followed in a criminal trial that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the court must be applied and that if such a rule was not applied the high court could set aside the order of the departmental authority in exercise of its power .under article 226 of the constitution.
The High Court does not sit as a court of appeal over the decision of the authority holding a departmental enquiry: 26 it has only to see whether the enquiry has been held by a competent authority and according to the procedure prescribed and whether the rules of natural justice have been observed.
Where there is some evidence which the authority has accepted and which evidence may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under article 226 to review the evidence and to arrive at an independent finding on the evidence.
If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be convassed before the High Court.
In the present case, the proceedings before the departmental authorities were regular, no rules of natural justice were voilated, the conclusions were borne out by the evidence and the respondent had ample opportunity of examining his witnesses.
Therefore, the conclusions of the punishing authority were not open tO be questioned before the High Court.


judgement:
ivil Appeal No. 350 of 1962.
Appeal by special leave from the judgment and decree dated November 30, 1960, of the Patna High Court in Miscellaneous Judicial Case No. 799 of 1958.
G. section Pathak and G.G. Mathur, for the appellant.
N. D. Karkhanis and R. N. Sachthey, for the respondent.
1963, April 10.
The Judgment of the Court ' was delivered by SARKAR J.
This case does not seem to us to present any real difficulty.
It arises out of a reference to the High Court of Patna of two questions both of which were answered by the High Court against.
the assessee, the appellant in this Court.
The appellant is.
a company manufacturing sugar.
It had its factory originally at a place called 19 Sitalpur.
That place was found to be disadvantageous for the appellant 's business as sugar cane of good quality was not available in sufficient quantity in the neighbourhood and also as it suffered from ravages of flood.
With a view to improve its business the appellant removed its factory from Sitalpur to another place called Garaul and in the process of dismantling the building and machinery, transportation from Sitalpur to Garaul and refitting the machinery at the latter place, it incurred a total expense of Rs. 3,19,766/ in the year of account.
In the assessment of its income tax.
it claimed a deduction of these expenses as revenue expenses.
That claim was rejected.
The questions referred concern these expenses.
The first question was this: "Whether the expenditure of Rs. 3, 19,766/ incurred by the assessee m dismantling and shifting the factory from Sitalpur and erecting the factory and fitting the machinery at Garaul was expenditure of a capital nature and not revenue expenditure within the meaning of section 10 (2) (xv) of the Income tax Act ?" Considering the matter apart from the authorities, it seems to us impossible that the expenditure could be revenue expenditure.
It was clearly not incurred for the purpose of carrying on the concern but it was incurred in setting up the concern with a greater advantage for the trade than it had m its.previous set up.
The expenditure was .not.
recurred m caring any profit but only for putting its factory, that is, its capital, in better shape so that it might produce larger profits, when work.ed.
It really .went towards effecting a permanent improvement in the profit making machinery, that is, in the capital assets.
It was, therefore, a capital expenditure and not a revenue expenditure.
20 The case, furthermore, is completely governed by authorities.
We think it comes clearly within the well known dictum of Viscount Cave in Atherton vs British Insulated and Helsby Cables Ltd (1).
That "when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circumstances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue but to capital".
The test formulated by Viscount Cave has been accepted by this Court: see Assam Bengal Cement 6 '0.
Ltd. vs The Commissioner of Income tax West Bengal (2).
Here the expenditure produced an enduring advantage in the shape of transfer to a better factory site, an advantage which enabled the trade to prosper and an advantage that could be expected to last for ever.
It was an expense properly attributable to capital under Viscount Cave 'dictum.
Mr. Pathak did not question the authority of the test laid down in Atherton 's case (1), but said that that test had no application in the present case as it would not apply unless by the expenditure a material asset or a covenant or right in the nature of capital was acquired.
We find neither principle nor authority to support this contention.
If an expenditure incurred, say for acquiring an additional plant, is capital expenditure, an expenditure incurred in dismantling and refitting the existing plant at a better site would be equally capital expenditure.
They would both be capital expenditure because both were incurred for increasing the capacity of the profit making machine to earn profits and neither was incurred for earning the profits themselves.
In principle, therefore, there is no reason to make a distinction .as to the nature of the expense between an expenditure incurred for acquiring material capital (1) 192, (2) , 21 asset or a legal right in the nature of capital and an expenditure incurred for acquiring any other advantage of an enduring nature for the benefit of the trade.
It is true that it has been said, as Mr. Pathak pointed out, that the advantage acquired by the expenditure must be analogous to an asset (see Halsbury 's Laws of England, 3rd ed.
XX p. 162.) but that only means advantage of the nature of a capital asset, that is to say, "an advantage to the permanent and enduring benefit of the trade".
see ibid p. 161.
It is obviously not necessary for an advantage to be of such a nature that it must be the acquisition of a material asset or of a chose in action.
As to the authorities, they are all against the view for which Mr. Pathak contends.
We propose to refer to two of them only.
First, there is the case of Granite Supply Association Ltd. vs Kitton (1).
The assessee was a company whose business was to buy and sell granite.
It found it necessary to shift to a larger yard and in doing so incurred expenses for removal of stones and cranes from the old to the new yard and for re erecting the cranes in the latter yard.
It was held that the Company was not entitled to a deduction for these expenses.
It was said that the expenses were of the same kind as those which might have been incurred in the buying of new cranes.
Lord MacLaren said (p. 17IL "I think that the cost ' of transferring plant from one set of premises to another more commodious set of premises 'is not an expense incurred for the year in which the thing is done, but for the general interests of the business.
It is said, no doubt, that this transference does not add to the capital 'value of the plant, but I think that is not the criterion." Lord MacLaren 's observation is completely against the view advocated by Mr. Pathak that to constitute an enduring benefit a material asset or a right must be created.
The above case, furthermore, is indistinguishable from the case in hand.
Mr. Pathak sought to (1) (1905) 5 T.C.160.
22 distinguish the present case from the Granite Supply Association Ltd. case (1), on the ground that there the business was not running at a loss in the old yard and the expenses were incurred only to enlarge the business and hence were on capital account.
We find it difficult to.
appreciate this distinction.
Whether an expense is on capital account or not would not depend on whether it was incurred for earning larger profits than before nor would an expenditure be on revenue account because it was incurred for turning a losing concern into a profitable one.
The other case to which we will refer is Bean vs Doncaster Amalgamated Collieries Ltd.(2).
The Colliery Company was required by a statute to incur expenses for remedial works necessary tO obviate loss of efficiency in an existing drainage system due to subsidence caused by the Company 's workings.
The Drainage Board formed a general drainage improvement scheme and the Company paid a part of the expenses of the new drainage constructed under the scheme.
As a result of the new drainage the Company was enabled to work its seams without incurring the liability under the statute as the new drainage system had been so constructed as to remain unaffected by the Company 's workings.
It was contended by the company that the payment for the new drainage was a revenue expenditure as it had not resulted in the acquisition of any capital asset, but this contention was rejected and it was held that the expenditure was on capital account and no deduction for it was allowable.
Viscount Simon said (p. 312), that the expenses had been incurred "to secure an enduring advantage within the proper application of Lord Cave 's phrase in Atherton vs British Insulated and Helsby Cables Ltd. , at page 192)".
He also quoted (p.312) with approval the observation of Uthwatt J. in the Court of Appeal that, "The result of the transaction (1) (2) , 23 clearly was that the value of the particular coal measures a capital asset remaining unchanged in character was increased both for use and exchange.
There was, therefore, as the result of the transaction,brought into existence, not indeed an asset, but an advantage for the enduring benefit of the trade of the Company." Obviously, therefore, there can be an enduring advantage acquired without an addition to or increase in the value of any capital asset.
It is no doubt true that the distinction between revenue expenditure and expenditure on capital is very fine and often it is difficult to decide under which class an expenditure properly falls.
No such difficulty, however, arises in the present ease.
We think, for the reasons earlier mentioned, that the present is a plain ease and we feel no doubt that the expenses for shifting and re erection were incurred on capital account.
The first question referred was clearly correctly answered by the High Court.
The appellant 's ease is even weaker with regard to the other question which was this: "Whether the assessee was entitled to claim depreciation on the said expenditure of Rs. 3,19,766/ ?" This question was raised presumably on the basis that if in respect of the first question it was held that the expenditure was on capital account, then depreciation should be payable on the amount of the expenditure in the same way as depreciation is allowed on capital.
The claim for depreciation was made under section 10 (2) (vi) of the Income tax Act.
But as the High Court rightly pointed out, no such depreciation could be claimed because no tangible asset had been acquired by the expenditure which could be said to have depreciated.
24 Mr. Pathak, therefore, put the case of the appellant from a slightly different point of view.
He referred us to Part V of the Form of Return given in the Rules framed under the Act.
That Part deals with a claim for depreciation.
Column 3 of this Part requires a statement to be made for "Capital expenditure during the year for additions, alternations, improvements and extensions".
Mr. Pathak contended that this Part showed that depreciation is allowable on capital expenditure for improvements, and that in view of our answer to question No. 1.
the appellant would be entitled to depreciation on the expense as capital expenses incurred for improvement.
This is an obviously fallacious argument.
In order to be entitled to deduction on account of depreciation under this Part of the Form, there has to be an improvement of the capital asset, an increase in its value.
All that we have here is an expense incurred for acquiring an advantage for the trade.
That may or may not be an improvement in the capital assets.
The appellant cannot claim depreciation on the amount spent for acquiring an advantage.
Whether it could claim depreciation on improvements effected to capital assets is not a question referred to the Court.
The second question, therefore, was also correctly answered in the negative by the High Court.
This appeal is dismissed with costs.

dataset_name: IN-Abs

summary/full:
The appellant, a company manufacturing sugar, shifted its factory from the old site to a new site and incurred a total expense of Rs. 3,19,766/ on the dismantling of buildings and machinery, transporting machinery from the original site to the new site and refitting the same there.
Held that the appellant was not entitled to a deduction of this expense for income tax purposes as an expense incurred for carrying on the concern or in earning profit, it was an expense incurred m effecting a permanent improvement in the profit making machinery and was, therefore, an expenditure on capital account.
The expense was on capital account also because it was made, "not only once for all, but with a view to bringing into existence an asset or an.
advantage for the enduring benefit of a trade" within the dictum of Viscount Cave in Atherton vs British Insulated and Helsby Cables Ltd. In order that that dictum may apply it is not necessary that by the expenditure a material asset or a permanent right in the nature of capital should be acquired.
There may be an expense incurred on capital account though nothing was thereby added to the capital value of an asset.
Atherton vs British Insulated and Helsby Cables Ltd. , Assam Bengal Cement Go.
Ltd. vs The Commissioner of Income tax, West Bengal, [1955] 1 S.C.R. 972, Granite Supply Association Ltd. v Kitton, and Bean vs Doncaster Amalgamated Collieries Ltd. , referred to.
18 An expense would not be on revenue account simply because it was incurred to turn a losing concern into a profitable one.
Though the expense incurred by the appellant was of a capital nature, it was not entitled to any depreciation on it under s.10 (2) (vi) of the Income tax Act because no tangible asset had been acquired by the expenditure which can be said to have depreciated.
Neither was the appellant entitled to depreciation under part V of the Form of Return given in the Rules framed under the Act which dealt with a claim for depreciation and by column 3 required a statement to be made for "capital cxpenditure during the year for additions, alternations, improvements and extensions," for to be so entitled to deductions under this part there has to be an improvement of the capital asset or increase in its value and there is no evidence of any such improvement or increase.
Further, no claim for depreciation on improvement to capital asset had been made.


judgement:
ivil Appeal No. 321 of 1962.
Appeal by special leave from the Judgment and order dated August 4, 1959 of the Andhra Pradesh High Court in Referred Case No. 29 of 1957.
M. Rajagopalan and K.R. Choudhri, for the appellant.
The respondent did not appear.
April 10.
The Judgment of the Court was delivered by AYYANGAR J.
This appeal has been filed by special leave of this Court against the judgment of 4 the High Court of Andhra Pradesh by which the appellant who is an Advocate was held guilty of professional misconduct and had been suspended from practice for five years.
The facts relating to the misconduct charged were briefly these: The three respondents before us and one other Kagga Veeraiah were plaintiffs m O.S. 432 of 1951 on the file of District Munsiff, Guntur in which a claim was made for possession of certain lands.
The appellant was the Advocate for these plaintiffs.
The suit was dismissed by the Trail Court and an appeal was filed therefrom to the Subordinate Judge, Guntur and pending the disposal of the appeal there was a direction by the Court that the crops standing on the suit land be sold and the proceeds deposited into Court.
In pursuance of this order a sum of about Rs. 1,600/ was deposited into Court on December 19, 1951.
The appeal by the plaintiffs was allowed by the Subordinate Judge.
The ' unsuccessful defendants preferred a second appeal to the High Court, but meanwhile the plaintiffs made an application for withdrawing the amount deposited in Court.
By virtue of interim orders passed by the Court they were granted liberty, to withdraw the sum pending disposal of the second appeal in the High.
Court filed by the defendants on furnishing security of immovable property.
The security was furnished and.
the withdrawal was ordered.
A cheque petition E.A. 250 of 1952 was accordingly filed which was allowed and thereafter a cheque was issued in favour of the Advocate the appellant before us for Rs. 1,452/4/ , this being the sum remaining to the credit of the plaintiffs after deduction of poundage etc.
It was admitted that this cheque was cashed by the appellant on April 23, 1953.
The appellant did not dispute that.
he cashed this cheque on behalf of his clients or that the latter were entitled to be paid this sum and the charge of professional misconduct against the 5 appellant was that the Advocate had not made this payment in spite of demands but that on the other hand he falsely claimed to have paid them this sum.
To resume the narrative of the matters leading to these proceedings, the second appeal before the High Court was disposed of in August, 1955 and by the judgment of that Court the appeal was allowed and the plaintiff 's suit dismissed.
The plaintiffs had therefore to refund the sum to the defendants in the suit.
On February 8, 1956 the plaintiffs made a written demand on the appellant for the sum complaining that the cheque had been cashed by him but that its proceeds had not been paid over.
On April 14, 1956 the appellant replied to this notice claiming to have paid over the sum to them on their passing a receipt and stating.that the receipt happened to be in the bundle of case papers which had been returned to them.
But even before the receipt of this reply the three respondents before us filed a complaint under sections 12 and 13 of the Legal Practitioners Act alleging the non payment of the money and charging the Advocate with professional misconduct in respect of it, and praying for an enquiry into his conduct.
The appellant was an Advocate and hence the complaint was treated as one under section 10 (2) of the .
The explanation of the Advocate was called for.
and thereafter the District.
Judge, Guntur was directed.
to hold an inquiry into the allegations of professional misconduct against the appellant and forward his report to the High Court.
An elaborate inquiry was thereafter held by the learned District Judge who, after considering the .evidence, submitted a report recording his conclusion that the appellant 's case was not unbelievable" and that on that ground he was entitled to the benefit of doubt.
The matter then came up before the High Court for consideration on this report.
Some point 6 appears to have been made before the Court that certain material witnesses had not been examined.
Agreeing with the submission they directed the District Judge to summon and examine them and this was accordingly done, their evidence was recorded and submitted to the High Court.
The matter was thereafter heard by a Bench of 3 Judges and the learned Judges being of the opinion that the charge against the appellant viz., that he did not pay over the amount of 'the cheque to his clients was clearly made out, held him guilty of professional misconduct and imposed the punishment of suspension from practice, as stated earlier.
The appellant then applied and obtained leave of this court special leave under article 136 to challenge the correctness of these findings and that is how the matter is before us.
Before proceeding further we desire to indicate the nature of the jurisdiction of this Court in such matters and in broad outline the principles which it would observe in dealing with them.
The jurisdiction exercised by the High Court in cases of professional misconduct is neither civil nor criminal as these expressions are used in articles 133 and 134 of the Constitution.
In one aspect it is a jurisdiction over an officer of the Court and the Advocate owes a duty to the Court apart from his duty to his clients.
In another aspect it is a statutory power and we would add a duty vested in the Court under section 10 of the Bar Councils Act to ensure that the highest standards of professional rectitude are maintained, so that the Bar can render its expert service to the public in general and the litigants in particular and thus discharge its main function of co operating with the judiciary in the administrance of justice according to law.
This task which is at once delicate and responsible the statute vest in the High Court and therefore the primary responsibility of ensuring it rests with it, 7 This Court is in consequence most reluctant to interfere with the orders of High Courts in this field, save in exceptional cases when any question of principle is involved or where this Court is persuaded that any violation of the principles of natural justice has taken place or that otherwise there has been a miscarriage of justice.
Where however none of these factors, are present, it is not the practice of this Court to permit the canvassing of the evidence on the record either for reappraising it or to determine whether it should be accepted or not.
The findings of the High Court therefore on questions of fact are not open before us and this Court would only consider whether on the facts found, the charge of professional misconduct is established.
Learned Counsel for the appellant urged before us several grounds in support of the appeal but we consider that none of them merits serious attention.
It was first submitted that the Bar Council had not been consulted before the case was referred to the learned District Judge for inquiry and report and that this vitiated the legality of the entire proceedings against the appellant.
Our attention was drawn to the terms of section 10 (2) of the reading: "10.
(2) Upon receipt of a complaint made to it by any Court or by the Bar Council, or by any other person that any such Advocate has been guilty of misconduct, the High Court shall, if it does not summarily reject the complaint, refer the case for inquiry either to the Bar Council, or, after consultation with the Bar Council, to the Court of a District Judge (hereinafter referred to as a District Court) and may of its own motion so refer any case in which it has otherwise reason to believe that any such advocate has been so guilty." and the argument was that the matter could not have been remitted for inquiry to a District Judge 8 unless the.
statutory pre condition of consultation.
with the Bar Council had taken place.
It is not necessary to consider in this case whether this provision for consultation is mandatory or not but we shall assume that it is so.
There was however no hint of this objection to the validity of the proceedings up to the stage of the appeal in this Court.
The question whether there has or has not been a consultation is one of fact and if this point had been raised in the High Court we would have information as to whether there had been such consultation or not, and if not why there was none.
Even when the appellant applied to the High Court for a certificate of fitness under article 133 (1)(c) this objection was not suggested as a ground upon which the validity of the proceedings would be impugned.
In these circumstances we are not disposed to entertain this objection which rests wholly upon a question of fact.
The fact that in the order of reference of the proceedings under section 10 (2)to the District Judge there is no explicit statement that the Bar Council had previously been consulted is not decisive on the point.
There would be a presumption of regularity in respect of official and judicial acts and it would before the party who challenges such regularity to plead and prove his case.
It was next contended that the complaint filed by the respondents on the basis of which action was taken against the appellant was not shown to have been signed by them, nor properly verified by them as required by the rules of the High Court.
We consider this objection frivolous in the extreme.
It was argued by the appellant before the High Court that there was dissimilarity between the several signatures of the three respondents found in the petition sent by them and that to be found in the plaint etc., of O.S. 432 of 1951 and that this was some proof that it was not the respondents who were 9 really responsible for the petition but that someone inimically disposed towards the appellant.
The learned Judges of the High Court rejected this submission in these words: "For one thing, we are unable to find any such dissimilarity.
Even so, that has not much of a bearing on the question whether the respondent (appellant) had discharged the burden viz., of proving that he had made the payment to the petitioners.
This argument would have had some force if the petitioners had not given evidence against the respondent.
Further, no such suggestion was put to any of the plaintiffs.
" This is on the question of the dissimilarity of the signatures on which rests the argument that the respondents were not the complainants.
Coming next to the point about the verification of the complaint the matter stands thus: The three complainants (the respondents before us) originally filed a petition on March ?6, 1956 before the District Judge but this did not bear the attestation of a gazetted officer or other authority as required by the rules.
This defect was made good by a fresh petition which they filed before the District Judge on April 16, 1956.
After the petition was signed by the three petitioners they added a verification in these terms: "We do hereby state that the facts stated above are true to the best of our knowledge, information and belief," and then they signed again.
These three signatures, they made before the District Judge who attested their signatures on the same day and when for .
warding this complaint to the High Court on 10 April 18, 1956 the learned District Judge stated these facts and added: "The petitioners appeared before me on April 16, 1956.
I got them sign the petition in my presence and I attested the same.
" It is thus clear that they made three signatures in token of their signing the petition, the verification and a further affirmation before the District Judge who attested the same.
Learned Counsel did not suggest before us that the District Judge was in error about the identity of the parties who appeared before him and affixed the signatures in three places in the complaint before him.
It is because of these circumstances that we have stated that this objection was most frivolous.
It is only necessary to add that seeing that the High Court is competent to initiate these proceedings suo motu under section 10 (2) the point raised is wholly without substance.
The next submission of learned Counsel was that as in substance the charge against the appellant was misappropriation of money belonging to the clients, the learned Judges of the High Court should have left the complainants to their remedy of prosecuting the appellant and should not have proceeded to deal with him under section 10 of the Bar Councils Act.
In support of this submission learned Counsel referred us in particular to two decisions of the Calcutta High Court reported in Chandi Charan Mitter, a Pleader, In re (1), and Emperor vs satish Chandra Singha (2).
We do not consider that the case before us furnishes an occasion for any exhaustive review of the decisions upon the subject or formulating finally the principles which govern the exercise of the discretion by a Court to which a complaint is made under section 10 of the Bar Councils Act whether it should (1) (1920) I.L.R.47 Cal.
C2) Cal, 721.
11 proceed under it or leave the complainant to launch a prosecution against the advocate and await the result of such criminal proceedings.
We consider it sufficient to state this.
The object of a proceeding in respect of professional misconduct differs totally from the object of a proceeding in a criminal court.
Proceedings under the Bar Councils Act and similar statutes arc taken in order to.ensure that the highest standards of professional conduct arc maintained at the bar.
These proceedings, though in a sense penal, arc solely designed for the purpose of maintaining discipline and to ensure that a person does not continue in practice who by his conduct has shown that he is unfit so to do.
It is not a jurisdiction which is exercised in aid of the Criminal law for the only question for the court to consider is whether the practitioner has so misconducted himself as no longer to be permitted to continue a member of an honourable and responsible profession.
The object of Criminal proceedings, on the other hand, is to enforce the law of the land and to secure the punishment of an offender.
No doubt, if a criminal prosecution is initiated in respect of the subject matter of the complaint and the charge is held proved the conviction might be a ground for a later proceeding under the Bar Councils Act.
No doubt, also, if the practitioner is acquitted or discharged by a criminal court on the merits, the facts would not be reinvestigated for the purpose of rounding a charge of professional misconduct on those very facts.
The object of the two proceedings being thus different, it is not any rule of law but merely a matter .of discretion depending on the facts of each case as to whether the Court would straightaway proceed to enquire into the allegation of professional misconduct or leave it to the complainant to prosecute the practitioner and await the result of such a proceeding.
It was not suggested by Counsel for the appellant that it was incompetent for or 12 beyond the jurisdiction of the Court, 'to proceed with an enquiry in a case where the misconduct charged against the advocate or practitioner amounted to an offence under the ordinary criminal law.
Neither of the cases relied on lay down any such proposition and is not of much assistance to the appellant in the present case.
It is sufficient to extract the head note to the report of the decision in Chandi Charan Mitter (x), indicate that it bears no analogy to the case now on hand.
The relevant portion of the head note reads: "Where the misconduct alleged has no direct connection with the conduct of the pleader in his practical and immediate relation to the court, ordinarily, there should be a trial and conviction for criminal misconduct before disbarment will be Ordered.
" The charge against the practitioner in that case related to a matter which had nothing to do with his relationship to his clients, or the court, and in the circumstances it was held that the direction would be properly exercised if the initiation of professional misconduct proceedings awaited the result of the prosecution.
It is obvious that the case before us is far different.
Emperor vs Satish Chandra Singha (2), was also a similar case.
The charge against the practitioner was of forging court records by interpolating some words in an original plaint.
In the case now before us, however, the misconduct charged is intimately connected with and arises out of the duty which the Advocate owed to client.
This distinction between misconduct which is intimately connected with the duties which the practitioner owes to his clients and cases where it is not so connected as bearing upon the exercise of the Court 's discretion to proceed or not to proceed straightaway with an inquiry into the advocate 's professional misconduct was emphasised by Lord (1) Cal, 1115, (2) (1927)I.L. R. , 13 Abinger in stephans (1), which dealt with case of professional misconduct against an attorney in England.
The learned Judge said: "If the attorney has been guilty of something indictable in itself but not arising out of the cause (in which he is engaged professionally) the Court would not inquire into that with a view to striking him off the roll but would leave the party aggrieved to his remedy by a criminal prosecution.
" There is thus a clear distinction between cases where the misconduct is one in relation to the practitioner 's duty to his client and other cases where it is not so.
In the former class of cases the court would be exercising its discretion properly if it proceeded to deal with the charge as a piece of professional misconduct without driving the complainant to seek his remedy in a Criminal Court.
So far as the facts of the present case are concerned the appellant got his client 's money in his hands in the course of the proceedings of a suit in which he was engaged and the charge against him was that he failed to repay the money.
In the circumstances we consider that the High Court was fully justified in proceeding against the appellant under the provision of section 10 of the Bar Councils Act.
The next complaint of the learned Counsel was that there was a procedural irregularity in the mode in which the case against the appellant was conducted.
This was said to consist in the fact that some evidence on behalf, of the complainants (the respondents before us)was permitted to be led after the appellant had examined himself and it was urged that thereby the complainants had been afforded opportunity of filling up any lacuna in their case.
We consider that there is no substance in this objection.
No complaint that the appellant was 14 prejudiced by the manner in which the inquiry was conducted in the matter of the order in which the evidence was adduced, was made either before the District Judge who conducted the inquiry or before the High Court when the report of the District Judge was considered.
We have ourselves examined the record and find that there is no basis for any suggestion that any ' prejudice had, occurred by reason of the order in which the witnesses were examined.
It was then suggested that one of the plaintiffs Kagga Veeraiah had himself admitted in his evidence before the District Judge that he and others had received the proceeds of the cheque which the appellant had cashed and that in the face of this admission the learned Judges of the High Court were clearly wrong in finding that the appellant had failed to pay over the money to his clients.
A few facts have to be mentioned to appreciate this contention as well as the answer to it.
As stated earlier, there were four plaintiffs in the suit O.S. 432 of 1951 and plaintiffs.
1 to 3 are the complainants now respondents 1 to 3 before us.
The fourth plaintiff was one Kagga Veeraiah.
It was the case of the appellant that this money , was paid to all the four plaintiffs i.e., was paid to the plaintiffs when all the four of them were present.
It was the case of the complainants that Kagga Veeraiah the 4th plaintiff died in 1957.
It was m these circumstances that the appellant alleged that Kagga Veeraiah was alive and a man claiming to be Kagga Veeraiah was produced before the District Judge who examined him as court witness No. 7.
The man who was examined did depose that the money was paid to the plaintiffs in his presence and, no doubt, if that statement along with the identity of the deponent was accepted the appellant 's defence would have been made out.
The case of the complainants, however, was that the man examined as court witness No. 7 was an impersonator.
To prove the; death of the 15 real Kagga Veeraiah an extract from the death certificate was produced in court by the complainants.
The attention of court witness No. 7 was drawn to the fact that in another proceeding (0. section 732 of 1955) to which Kagga Veeraiah was a party a memo was filed into Court stating that he was dead.
The witness 's explanation for this was that as he was not available the memo to that effect was filed.
The witness was severely cross examined about his identity and in particular, questioned about the details of the parties and other details regarding the subject matter of O.S. 432 of 1951 and his answers were most unsatisfactory, to say the least.
The Learned Judges of the High Court considered all this evidence and recorded two alternative findings :(1) that the person examined as C.W. 7 was not Kagga Veeraiah but was an impersonator seemed to accord with the probabilities, and (2) that even if C.W. 7 be in truth Kagga Veeraiah as he claimed, they would not accept his evidence as there was not 'even a modicum of truth in his deposition ' and they would unhesitatingly reject it.
The submission, however, of learned Counsel was that there was before the High Court the thumb impression of this witness to his deposition before the District Judge as C.W. 7 and the thumb impression of the 4th plaintiff in O.S. 432 of 1951 and that on a comparison of these two the court should have accepted the identity of C.W. 7 as Kagga Veeraiah the 4th plaintiff.
It is really not necessary to pursue this matter or the details of the evidence relating to it because there is no ground at all for interfering with the appreciation by the learned Judges of the High Court of the credibility of this witness 's deposition apart altogether from the question as to whether Kagga Veeraiah was dead and if he was not, whether C.W. 7 was Kagga Veeraiah.
The admissions that this witness made and the ignorance that he displayed about the proceedings in the suit stamped him as a witness of untruth and the learned Judges correctly characterised his evidence 16 as devoid of "even a modicum of truth.
" The appellant cannot therefore rely on any admission on the part of this witness as evidence of the plaintiffs having received the sum which was admittedly in his hands.
Lastly, it was urged that the order directing the suspension of the appellant for a period of five years was too severe and that we should reduce the period of suspension even on the basis that the charge against the appellant be held to be established.
We can only express surprise that Counsel should have made bold to make this submission.
The appellant had got into his hands a considerable sum of money belonging to his clients and, on the finding of the High Court, had failed to, pay it back when demanded.
Not content with this he had put forward a false defence of payment and had even sought to sustain his defence by suborning witnesses.
In the circumstances, even, if the learned Judges of the High Court had struck off the name of the appellant from the roll of advocates we would have considered it a proper punishment having regard to the gravity of the offence.
The order now under appeal therefore errs, if at all, on the side of leniency and there is no justification for the request made on behalf of the appellant.
The appeal fails and is dismissed.

summary/full:
The respondents and one other Kagga Veeraiah, were plaintiffs in a suit for possession of certain lands and the appellant was their Advocate.
Tim suit was dismissed and an appeal was preferred therefrom to the Subordinate Judge.
Pending the disposal of the appeal, the court directed the sale proceeds of the standing crops on the suit land to be deposited into court, and a sum of Rs. 1,600/ was so deposited.
The plaintiff 's appeal was allowed and the defendants preferred a second appeal to the High Court.
Pending disposal of the second appeal, plaintiff 's application for withdrawing the amount was allowed by the court on furnishing security of immovable property.
A cheque petition was filed which was allowed and thereafter a cheque for Rs. 1,452/4/ was issued in favour of the appellant.
The appellant an Advocate admitted that he had received and.
had cashed the cheque on behalf of his clients who were entitled to be paid this sum.
The second appeal was allowed by the High Court and the plaintiff 's suit was dismissed, as a result of which the plaintiffs had to refund the sum of the defendants in the suit.
The plaintiffs made a written demand on the appellant for the proceeds of the cheque that had been cashed by him and not paid over to them.
The appellant in reply claimed to have paid over the sum to them on their passing a receipt which happened to be in the bundle.
of case papers returned to 2 them.
The respondents filed a complaint under as. 12 and 13 of the Legal Practitioners Act.
The explanation of the Advocate was called for and the District Judge was directed to hold an enquiry and forward his report to the High Court.
His report was that the appellant 's case was not unbelievable and he was entitled to the benefit of doubt.
The matter was heard by a Bench of three Judges of the High Court, who held him guilty of professional misconduct and suspended him for five years from practice.
In this Court the appellant contended, (1) that the Bar Council had not been consulted before the case was referred to the learned District Judge for inquiry and report and this vitiated the legality of the entire proceedings against the appellant.
(2) That the complaint filed by the respondents on the basis of which action was taken against the appellant was not shown to have been signed by them, nor properly verified by them as required by the rules of the High Court.
(3) That as in substance the charge against the appellant was misappropriation of moneys belonging to the clients, the High Court should have left the complainants to their remedy of prosecuting the appellant and should not have proceeded to deal with him under section 10 of the Bar Councils Act.
(4) That there was a procedural irregularity in the mode in which the case against the appellant was conducted.
(5) That one of the plaintiffs Kagga Veeraiah had himself admitted in his evidence that he and others had received the proceeds of the cheque which the appellant had cashed and that in the face of this admission the High Court was clearly wrong in finding that the appellant had failed to pay over the money to his clients.
Held (1) that the fact that in the order of reference of the proceedings under section 10(2) of the Bar Councils Act, to the District Judge, there is no explicit statement that the Bar Council had previously been consulted, is not decisive on the point.
There would be a presumption of regularity in respect of official and judicial acts and it would be for.
the party who challenges such regularity to plead and prove his case.
Since, this objection was not raised in the High Court, even when the appellant applied for a certificate, this Court will not entertain this objection which rests wholly upon a question of fact.
(2) The complaint petition had been signed by the respondents and properly verified and even otherwise since the High Court was competent to initiate these proceedings suo motu under section 10(2) of the Act, the point raised is wholly without substance.
(3) There is a clear distinction between cases where the misconduct is one in relation to the practitioner 's duty to 3 his client and other cases where it is not so.
In the former Class of cases the court would be exercising its discretion properly if it proceeded to deal with the charge as a piece of professional misconduct without driving the complainant to seek his remedy in a criminal court.
80 far as the facts and circumstances of the present case are concerned, it must be held, that the High Court was fully justified in proceeding against the appellant under the provisions of section 10 of the Bar Councils Act.
Chandi Charan Mitter a Pleader, In re.
1115 and Emperor vs satish Chandra Singha, Cal. 721, distinguished.
Stephens vs Hills, ; , referred to.
(4) No complaint, that the appellant was prejudiced by the manner in which the inquiry was conducted in the matter of the order in which the evidence was adduced, was made either before the District Judge or before the High Court and there is nothing on the record to suggest that any prejudice had occurred to the appellant.
(5) The evidence of Kagga Veeraiah was correctly characterised by the High Court as devoid of truth and the appellant, therefore, cannot rely on any admission of this witness as evidence of the plaintiffs having received the sum.
Having regard to the gravity of the offence, there is no justification for reducing the period of suspension.
The appeal therefore, must be dismissed.