Even if Calcutta High Court Judge Justice Soumitra Sen had repaid the money retained by him as court Receiver, it amounted to misappropriation, senior counsel Siddharth Luthra argued on Sunday before a three-member committee that is hearing final arguments in the removal proceedings initiated against him.

The committee is headed by Supreme Court Judge Justice B. Sudershan Reddy. Chief Justice of the Punjab and Haryana High Court Mukul Mudgal and noted jurist Fali Nariman are its members. It was constituted by Rajya Sabha Chairman Hamid Ansari.

The charge against Justice Sen was that when he was a lawyer, he collected Rs. 33, 22,800 from the purchaser of goods and kept it in his savings bank account with a bank and misrepresented facts to the High Court.

Justice Sen was appointed judge of the High Court on December 3, 2003. A single judge, who heard the case, concluded that Justice Sen converted and appropriated the amount without court authority and his conduct was nothing short of criminal misappropriation. In 2006, he deposited Rs.57, 65,204, the amount received by him as Receiver, along with interest.

Mr. Luthra said this was the second case in the history of the country that Parliament had initiated proceedings for removal of a judge (the first one being Justice V. Ramaswami). Though the charges did not pertain to his judicial conduct, but to his conduct as a lawyer, the question before the committee was whether such a person, who could not continue even as a lawyer, was entitled to hold the high office as a judge.

It was an admitted fact that Justice Sen kept the amount in his account and did not offer any explanation or accounts for the sum kept in his account. The misappropriation charge commenced the moment he took the money and it was a continuing offence, notwithstanding the fact that he later returned the amount under the orders of the court, he said

“Some questions regarding the allegations could be best answered only by the judge himself. But he has chosen not to come to the witness box,” counsel said. He also pointed out that not a single witness came forward in support of Justice Sen.

When Mr. Nariman wanted to know how the misappropriation charge could be substantiated, he said: “Though Justice Sen had repaid the amount, he had not shown the source of funds; where the money was invested; at what rate of interest, etc.”

Quoting a series of Indian and U.S. judgments, counsel said: “Retention of money with dishonest intention is misappropriation and it is a misconduct and judicial misbehaviour.”

Arguments will continue on Monday.

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