1. By this revision petition u/S.401/397 of the Cr.P.C, the petitioner has challenged the order dated 14/9/2015 passed in ST No.25/2012 framing charge against the petitioner u/Ss.420/34, 467/34, 468/34, 471/34 and 474/34 of the IPC.
2. A complaint was filed by the Manager Dewas Shajapur Regional Gramin Bank against the co-accused Anarsingh S/o Prahlad Singh, Mohansingh S/o Prahlad Singh, Girnarsingh S/o Bapusingh, Omsingh S/o Kumersingh, Ramu Singh S/o Prahlad Singh and Durjan Singh S/o Prahlad Singh alleging that these six co-accused persons had applied for loan and had produced Bhu Adhikar and Rin Pustika, Khasra B/1 and P/2, family identity card etc and search was got done through the authorised Advocate of the bank and after receiving the report, loan was sanctioned to these six co-accused persons, but thereafter it was found that the documents which were submitted by the co-accused persons were fabricated documents, therefore, these six co-accused persons had cheated the bank and had obtained loan by committing fraud. FIR was registered and investigation was done. Since the petitioner had carried out the search and submitted the search report, therefore, he was also made one of the accused and challan has been filed against him also and by the impugned order dated 14/9/2015 charge has been framed against the petitioner along with the other co-accused persons.
3. Learned counsel for petitioner submits that the petitioner has not been named in the FIR and he had submitted the report on the basis of the document furnished by the co-accused persons and the search report on the basis of which the petitioner has been implicated does not find place in the charge sheet and that there is no material in the charge sheet to connect the petitioner with the alleged offence.
4. As against this, learned counsel for respondent has supported the impugned order.
5. Having heard the learned counsel for parties and on perusal of the record, it is noticed that in the complaint dated 27/1/2007 submitted by the Manager of the Bank, no allegations were made against the petitioner nor he was named therein. The petitioner''s name does not find place in the FIR. During the course of investigation, the statement of R.M. Naigaonkar, Manager of the Bank has been recorded who has also stated that the verification was done by the petitioner on the basis of the land record submitted by the co-accused persons who had applied for loan as also the document supplied by the concerned Halka Patvari and the ration cared issued by the gram panchayat, Kheda and Panchayat Secretary. There is no allegation against the petitioner that he had any role in preparation of the fabricated documents submitted to the bank by the co-accused persons. The petitioner has been implicated solely on the basis of the verification report submitted by him. It has been pointed out that the verification report was based upon the document submitted by the coaccused persons. Though the sole connecting link of the petitioner with the alleged offence is the search report submitted by the petitioner, but no such search report has been filed by the prosecution before the trial court along with the challan.
6. Counsel for State on 6/2/2017 had sought time to get the original challan examined by the SHO and to file an affidavit clearly stating if the search report was filed along with the challan. The affidavit of the SHO dated 20th February, 2017 is on record clearly stating that neither the original nor photocopy of the search report is enclosed with the challan.
7. In the aforesaid circumstances, there was no material before the learned Addl. Sessions Judge to come to the conclusion that the charge for commission of offence u/Ss. 420/34, 467/34, 468/34, 471/34 and 474/34 of the IPC was made out against the petitioner. Inspite of the opportunity by this court, counsel for State also could not point out any material from the challan showing that petitioner is connected with the alleged offence.
8. The Supreme Court in the matter CBI, Hyderabad Vs. K.Narayana Rao reported in 2012(IV) MPJR (SC) 179 considering the similar case where an Advocate was sought to be prosecuted on the allegation of submitting the false legal opinion has held that:-
16] We have already extracted the relevant
allegations and the role of the respondent herein (A-6).
The only allegation against the respondent is that he
submitted false legal opinion to the Bank in respect of the
housing loans in the capacity of a panel advocate and did
not point out actual ownership of the properties. As rightly
pointed out by Mr. Venkataramani, learned senior counsel
for the respondent, the respondent was not named in the
FIR. The allegations in the FIR are that A-1 to A-4
conspired together and cheated Vijaya Bank,
Narayanaguda, Hyderabad to the tune of Rs. 1.27 crores.
It is further seen that the offences alleged against A-1 to A-4 are the offences punishable under Sections 120B,
419, 420, 467, 468 and 471 of IPC and Section 13(2)
read with Section 13 (1)(d) of the Prevention of Corruption
Act, 1988. It is not in dispute that the respondent is a
practicing advocate and according to Mr. Venkataramani,
he has experience in giving legal opinion and has
conducted several cases for the banks including Vijaya
Bank. As stated earlier, the only allegation against him is
that he submitted false legal opinion about the
genuineness of the properties in question. It is the definite
stand of the respondent herein that he has rendered
Legal Scrutiny Reports in all the cases after perusing the
documents submitted by the Bank. It is also his claim that
rendition of legal opinion cannot be construed as an
offence. He further pointed out that it is not possible for
the panel advocate to investigate the genuineness of the
documents and in the present case, he only perused the
contents and concluded whether the title was conveyed
through a document or not. It is also brought to our notice
that LW-5 (Listed Witness), who is the Law Officer of
Vijaya Bank, has given a statement regarding flaw in
respect of title of several properties. It is the claim of the
respondent that in his statement, LW-5 has not even
made a single comment as to the veracity of the legal
opinion rendered by the respondent herein. In other
words, it is the claim of the respondent that none of the
witnesses have spoken to any overt act on his part or his
involvement in the alleged conspiracy. Learned senior
counsel for the respondent has also pointed out that out
of 78 witnesses no one has made any relevant comment
or statement about the alleged involvement of the
respondent herein in the matter in question.
21] In the earlier part of our order, first we have
noted that the respondent was not named in the FIR and
then we extracted the relevant portions from the chargesheet
about his alleged role. Though statements of
several witnesses have been enclosed along with the
charge-sheet, they speak volumes about others.
However, there is no specific reference to the role of the
present respondent along with the main conspirators.
22] The High Court while quashing the criminal
proceedings in respect of the respondent herein has
gone into the allegations in the charge sheet and the
materials placed for his scrutiny and arrived at a
conclusion that the same does not disclose any criminal
offence committed by him. It also concluded that there is
no material to show that the respondent herein joined
hands with A-1 to A-3 for giving false opinion. In the
absence of direct material, he cannot be implicated as
one of the conspirators of the offence punishable under
Section 420 read with Section 109 of IPC. The High
Court has also opined that even after critically examining
the entire material, it does not disclose any criminal
offence committed by him. Though as pointed out earlier,
a roving enquiry is not needed, however, it is the duty of
the Court to find out whether any prima facie material
available against the person who has charged with an
offence under Section 420 read with Section 109 of IPC.
In the banking sector in particular, rendering of legal
opinion for granting of loans has become an important
component of an advocate?s work. In the law of
negligence, professionals such as lawyers, doctors,
architects and others are included in the category of
persons professing some special skills.
23] A lawyer does not tell his client that he shall win
the case in all circumstances. Likewise a physician would
not assure the patient of full recovery in every case. A
surgeon cannot and does not guarantee that the result of
surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only
assurance which such a professional can give or can be
given by implication is that he is possessed of the
requisite skill in that branch of profession which he is
practising and while undertaking the performance of the
task entrusted to him, he would be exercising his skill
with reasonable competence. This is what the person
approaching the professional can expect. Judged by this
standard, a professional may be held liable for
negligence on one of the two findings, viz., either he was
not possessed of the requisite skill which he professed to
have possessed, or, he did not exercise, with reasonable
competence in the given case, the skill which he did
possess.
24] In Jacob Mathew vs. State of Punjab & Anr.
(2005) 6 SCC 1 this court laid down the standard to be
applied for judging. To determine whether the person
charged has been negligent or not, he has to be judged
like an ordinary competent person exercising ordinary
skill in that profession. It is not necessary for every
professional to possess the highest level of expertise in
that branch which he practices.
25] In Pandurang Dattatraya Khandekar vs. Bar
Council of Maharashtra & Ors. (1984) 2 SCC 556, this
Court held that "?there is a world of difference between
the giving of improper legal advice and the giving of
wrong legal advice. Mere negligence unaccompanied by
any moral delinquency on the part of a legal practitioner
in the exercise of his profession does not amount to
professional misconduct.
26] Therefore, the liability against an opining advocate
arises only when the lawyer was an active participant in a
plan to defraud the Bank. In the given case, there is no
evidence to prove that A-6 was abetting or aiding the
original conspirators.
27] However, it is beyond doubt that a lawyer owes an
"unremitting loyalty" to the interests of the client and it is
the lawyer?s responsibility to act in a manner that would
best advance the interest of the client. Merely because
his opinion may not be acceptable, he cannot be mulcted
with the criminal prosecution, particularly, in the absence
of tangible evidence that he associated with other
conspirators. At the most, he may be liable for gross
negligence or professional misconduct if it is established
by acceptable evidence and cannot be charged for the
offence under Sections 420 and 109 of IPC along with
other conspirators without proper and acceptable link
between them. It is further made clear that if there is a
link or evidence to connect him with the other
conspirators for causing loss to the institution,
undoubtedly, the prosecuting authorities are entitled to
proceed under criminal prosecution. Such tangible
materials are lacking in the case of the respondent
herein.
28] In the light of the above discussion and after
analysing all the materials, we are satisfied that there is
no prima facie case for proceeding in respect of the
charges alleged insofar as respondent herein is
concerned. We agree with the conclusion of the High
Court in quashing the criminal proceedings and reject the
stand taken by the CBI.
29] In the light of what is stated above, the appeal fails
and the same is dismissed."
9. This Court also in a case where a practising advocate was
sought to be prosecuted along with the co-accused persons for
offence u/Ss.120-B, 419, 420, 467, 468 and 471 of the IPC on the
basis of the allegation of false legal opinion and search report
following the judgment of the supreme court in the matter of
K.Narayana Rao (supra) and the division bench judgment of this
court in the matter of Harikishan Tuteja Vs. State of MP
M.Cr.C. No.7954/2013 dated 16/8/2013 has held as under:-
"8] Applying the principle laid down in the case
of K. Narayanan Rao (supra) and Harikishan
Tuteja (supra), it is apparent that while preparing
the search report, the present applicant failed to
notice that the main accused B.S. Verma
transferred the property to his wife and to one
of the employee who was not allegedly having
sufficient means to purchase the property. No
evidence is available in the charge-sheet, copies
of which have been filed by the applicant, that
when the present applicant conducted search in
as around December 2003 such information could
have been extracted by the applicant though
available record, index etc. There is also no
evidence to establish his link or connection with
other accused. Learned advocate for the petitioner
argued that his report in respect of the main property on
which the factory was situated was found correct but in
respect of this property which has lesser value it was
found incorrect. Had he be interest in helping the main
accused he would have prepared false report in
respect of the main property . The argument has
force and seems convincing.
9] During the arguments, the learned counsel
for the respondent failed to show that any
investigation was made to ascertain whether it
was possible for the present applicant to ascertain
from the records available in the office whether
the property was subsequent to transfer in different
names or not and whether he failed to take into
account such record which was available.
10. Taking all these factors into consideration, in
my opinion, at the most it may be said that there was a
gross negligence on the basis of which it cannot be
said that he was criminally associated with the coaccused
and participated in the criminal conspiracy
or with the bank officials. It is not apparent that
only on the basis of his report the property was
hypothecated and loan was sanctioned and in this
view of the matter, I find that this application
deserves to be allowed and accordingly allowed."
10. It is the settled position in law that if on the basis of the
material on record, the court could form an opinion that the
accused might have committed offence, it can frame the charge,
though for conviction the conclusion is required to be proved
beyond reasonable doubt that the accused has committed the
offence. It is also well settled that if two views are possible and
one of them gives rise to suspicion only, as distinguished from
grave suspicion, the trial judge will be empowered to discharge
the accused and at this stage, he is not to see whether the trial
will end in conviction or acquittal.
11. In the present case, the counsel for State has failed to point out any material from the challan to show that the petitioner had any role to play in the commission of the aforesaid alleged offences. Even the search report submitted by the petitioner is not available in the charge sheet for a scrutiny if the same suffers from any error and even if the search report submitted by the petitioner had any error, then merely on that basis and nothing more the petitioner cannot be implicated though he may be said to have committed a negligence in submitting such a report.
12. In the aforesaid circumstances, I am of the opinion that the trial court has committed an error in passing the order dated 14/9/2015 and framing charge against the petitioner. Accordingly, the revision petition is allowed. The order dated 14/9/2015 is set aside and the prosecution of the petitioner u/Ss. 420/34, 467/34, 468/34, 471/34 and 474/34 of the IPC in ST No.25/2012 is quashed and the petitioner is discharged from the above offences.
