Gujarat High Court
Bankim Tarun Dave vs State Of Gujarat on 21 April, 2025
NEUTRAL CITATION
R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025
undefined
Reserved On : 07/04/2025
Pronounced On : 21/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 10948 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==============================================================
Approved for Reporting Yes No
√
==============================================================
BANKIM TARUN DAVE
Versus
STATE OF GUJARAT & ANR.
==============================================================
Appearance:
MR MANISH BHATT, SENIOR COUNSEL WITH MR P P MAJMUDAR(5284)
for the Applicant(s) No. 1
MR CZ SANKHLA(3243) for the Respondent(s) No. 2
MR SOHAM JOSHI, ADDL.PUBLIC PROSECUTOR for Respondent(s) No. 1
==============================================================
CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. Rule. Learned APP Mr.Soham Joshi waives service of Rule for the respondent - State and learned advocate Mr.C.Z.Sankhla waives service of Rule for respondent No.2.
2. By this application under Section 482 of the Code of Criminal Procedure (for short "the Code"), the applicant seeks quashing of the FIR registered as CR No.11199010210968 of 2021 registered with Bharuch 'A" Division Police Station, Bharuch for the offence punishable under Sections 120B, 406, 420, 409, 465, 467, 468 and 471 of the Indian Penal Code, Chargesheet No.107 of 2021 and Criminal Case No.14279 of 2021 pending before Chief Judicial Magistrate, Bharuch and Page 1 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined further proceedings arising thereof.
3. The brief facts of the case are as under :
3.1 It is the case of the complainant that original accused persons in connivance with each other committed the offence whereby accused Nos.1 to 5 prepared forged and fabricated documents in the name innocent persons and secured loan from the Union Bank of India by producing those forged documents with fake signatures. Accused Nos.2, 6 and 7 executed sale deeds in favour of innocent persons in whose name home loans were obtained for non-existing properties. Accused No.8 who is Bank Manager has misused his position and without following due procedure released home loans in favoru of accused Nos.4 and 5. It is alleged that the accused Nos.9 and 10 are valuer who have issued false valuation report and accused No.11 is an advocate who has issued false title clearance certificate. Thus, all the accused persons in connivance with each other caused wrongful loss of Rs.7,77,89,000/- to the public exchequer. The complainant filed the FIR in question against the accused persons. Hence, the present petition.
4. Heard learned advocates appearing for the respective parties.
5. Seeking quashment of the questioned FIR filed for the offence punishable under Sections 120B, 406, 420, 409, 465, 467, 468 and 471 of the IPC, learned Senior Counsel Mr.Manish Bhatt assisted by learned advocate Mr.P.P.Majmudar appearing for the petitioner would argue that the petitioner is empanelled Page 2 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined valuer of the Union Bank of India, Bharuch branch. He would submit that in the matter, the role of the petitioner is limited to the aspect that the petitioner has filed the valuation report to the Union Bank of India with regard to the proposed residential row houses to be constructed on the land of Survey No./Block No.20B paiki Mouje Utiyadra, Talika Ankleshwar, District Bharuch. While narrating entire sequence, learned Senior Counsel would submit that the bank manager who is also accused in the matter, had shown certain construction to the Jugal Kishor Shinglot who is employee of the petitioner and after seeing those construction and taking photographs thereof which is placed before the petitioner, the valuation report was issued with regard to alleged construction taken place.
5.1 Learned Senior Counsel would submit that at the most it can be said that the petitioner has tendered valuation report for loans provided to non-existent construction, but at no point of time, the FIR or the investigation states that the petitioner was in complicity with the developer and contractor and has abated the crime and defrauded the bank and received monetary gain.
He would further submit that looking to these peculiar facts of the case, if critically examined, it would not establish that the petitioner has committed the offence of criminal breach of trust, cheating and forgery as alleged in the FIR and therefore, he would submit that on prima facie reading of the FIR, it does not disclose the essential ingredients of offence. The petitioner being professional and well acclaimed person having received awards from various institutions, should not be force to face the trial for filing of valuation report.
Page 3 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined 5.2 In support of his submissions, learned Senior Counsel relies upon the following judgments :
(1) Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao - (2012) 9 SCC 512.
(2) Vipulbhai Chandrakantbhai Gosaliya vs. State of Gujarat, being Special Criminal Application No.8626 of 2018.
(3) L.N.Rajagopalan vs. State by Additional Superintendent of Police - 2009 SCC Online Mad. 3298.
(4) A. Kumar Sharma vs. CBI - 2015 SCC Online Del. 7206.
(5) Abhishek vs. State of Madhya Pradesh -
2023 SCC Online SC 1083.
(6) Anand Kumar Mohatta and another vs. State (NCT of Delhi), Department of Home and another - (2019) 11 SCC 706.
(7) Mahmood Ali and others vs. State of U.P. and others - 2023 SCC Online SC 950.
5.3 By making aforesaid submissions, learned Senior Counsel would submit to allow this petition and to quash the questioned FIR.
6. Learned advocate Mr.C.Z.Sankhla appearing for respondent No.2 Bank would submit that a huge scam of siphoning Rs.7,77,89,000/- has been made and the public money has been defrauded. He would further submitted lonees have approach the petitioner for preparing valuation of the Page 4 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined properties. He would further submit that though the petitioner is an empanelled valuer of the Union Bank of India, he acted at the behest of the lonee and prepared the valuation report which helped the developer and contractor to obtain the loan from the bank. He would further submit that the petitioner without verifying existence of the immovable property for and upon which the loan has been sanctioned and granted, issued valuation report. Admittedly, the petitioner had not verified the existence of the immovable property and construction made thereon and issued valuation report which helped developer and contractor to obtain huge loan with intention to defraud the bank and therefore, it prima facie establishes that the petitioner being an empanelled valuer has failed to exercise his duty which should be treated that he was in complicity with the main accused and is a part of the huge scam and therefore, the discretion may not be exercised in favour of the petitioner to quash the FIR.
6.1 Upon above submissions, learned advocate Mr.Shankhla appearing for the respondent Bank submits to dismiss this petition.
7. Learned APP appearing for the respondent - State in addition to aforesaid argument would submit that the investigation has been carried out in the matter and thereafter, since material collected during the investigation indicates and demonstrate the existence of the ingredients of offence alleged in the FIR, charge-sheet is also filed against the petitioner. Learned Page 5 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined APP would submit that in view of above, the FIR should not be scuttled at this stage.
7.1 Upon above submissions, he would submit to dismiss this petition.
8. Having heard learned advocates for both sides and perusal of the record, at the outset, with regard to questioned FIR, let me refer the allegations levelled in the FIR against the present petitioner for commission of the offence as under :
"(11) Accused Valuer Bankimbhai Taraunbhai Dave and (12) Accused Jugalbhai Kishorbhai Singhlot Accused Bankimbhai Tarunbhai Dave is the valuer and accused Jugalbhai Kishorbhai Singhlot is working as an associate of accused Bankimbhai. Accused Bankimbhai was appointed as panel valuer by Union Bank of India and according to the guideline given by Union Bank of India, Bank Manager has to submit valuation report of the building constructed on the plot of land and as per the documents submitted at the time of spot examination, the said property is to be verified physically and thereafter, the valuation report is to be given. However, accused Bankimbhai, in spite of being panel valuer of Union Bank of India and in spite of he not being called by the Bank, with a view to obtain financial gain, as per the instructions of witness Sandip Shantilal Vasava, accused Bankimbhai sent accused Jugal Kishor Shinglot working in his office for spot verification of Plot No.256, 321, 323, 324, 317, 94, 296 of Part-3 and Part-4 of Kailashnagar and Plot Nos.196, 70, 186, 68, 286, 69, 67 carved out of Block No.19 paiki of Utiyadara and accused Jugal Kishor Shiglot went along with witness Sandipbhai Shantilal Vasava, but without carrying out physical spot verification as per rules, in order to obtain financial gain, taken photographs of constructions made on some other plot Page 6 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined and in spite of the fact that no construction has been made on Plot No.256, 321, 323, 324, 317, 94, 296 of Part-3 and Part-4 of Kailashnagar and Plot Nos.196, 70, 186, 68, 286, 69, 67 carved out of Block No.19 paiki of Utiyadara, false valuation report has been prepared that construction has been made and obtain financial gain and thereby in connivance with each other, they have played main role in commission of the offence."
9. It is noticeable that the main allegations levelled against the present petitioner is that he has acted in aid of the main accused who have defrauded the bank. It is further argued that the petitioner by preparing false valuation report of the non existent immovable property, in complicity with the main accused, has committed the offence. The offence under Section 120B of IPC has been added against the petitioner. Criminal conspiracy is an independent offence and is punishable separately. The ingredients of the offence under Section 120A & 120B of IPC are under :
"120A. Definition of criminal conspiracy.-- When two or more persons agree to do, or cause to be done,--
(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.--It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an Page 7 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined offence punishable with death, 1 [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]"
10. The essential ingredients of offence of criminal conspiracy are the agreement between two or more person; and agreement must lead to doing or causing to be done either (a) an illegal act;
(b) an act which is not illegal in itself but is done by illegal means. Therefore, the condition precedent for holding a person accused to be guilty of charges of criminal conspiracy must therefore be considered on the facts which must be established by prosecution viz. meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
11. The following passage from Russell on Crimes (12 th Edition, Vol. 1) has been cited in Kehar Singh vs. State (Delhi Admn.) - 1988 (3) SCC 609, by the Hon'ble Apex Court to bring out the legal position succinctly as under :
""The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough."Page 8 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025
NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined
12. The gist of the offence of conspiracy is to meeting of minds by two persons and they agreed together to break some law. To constitute the conspiracy, therefore, meeting of at least two minds would be necessary. (See : K.R. Purushothaman vs. State of Kerala - 2006 (12) SCC 631).
13. In State of M.P. vs. Sheetla Sahai and others - 2009 (8) SCC 617, the Hon'ble Apex Court observed that the Criminal Courts have to be put into action in the form of concrete conspiracy or agreement. This can be proved by direct evidence wherever available and also by the circumstantial evidence.
14. In Ram Narayan Popli vs. CBI - 2003 (3) SCC 641, Hon'ble Supreme Court has noted as under :
"Law making conspiracy a crime, is designed to curb immoderate power to do mischief which is gained by a combination of the means. The encouragement and support which co- conspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with condign punishment."
15. In CBI vs K. Narayana Rao (supra), the Hon'ble Apex Court in a case where improper legal advise or opinion expressed by the advocate, while observing that an offence of conspiracy cannot be deemed to have established on mere suspicion or surmises or inferences not supported by cogent and acceptable evidence held as under :
"The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons Page 9 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence. (para 24)"
16. Applying the aforesaid ratio to the case on hand, the Court needed to examine the allegations against the petitioner critically to see that weather the petitioner was in conspiracy to submit the valuation report for the properties which were non-existent. It is to be noted that there is no allegation against the petitioner that he has forged any other document which permit the lonee to obtain the huge loan and to defraud the bank. It is the case of the prosecution that petitioner has prepared valuation report of immovable property inspection of which was made by the employee of the petitioner, whereby the immovable property was shown by Bank Manager. The valuation report produced at Annexure-C indicates that the sale deed was produced, plan application to Nagar Niyojak, Bharuch is also tendered; moreover, sanctioned plan was also tendered as well as construction agreement was tendered. Upon verifying these Page 10 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined documents, the petitioner has prepared the valuation certificate for some of the immovable properties. Apt to note that the Bank Manager Mr.Vasava who is accused in the matter played a crucial role. He took Mr.Jugal Kishor Shinglot, a person from office of the petitioner to a particular site and shown the half done construction of the premises in some of the immovable property. Mr.Jugal Kishor Shiglot took the photographs of those properties which are forming part of the valuation report and thereupon, the petitioner being an empanelled valuer of Union Bank of India expressed his opinion by valuation certificate/valuation report (Annexure-C). Apposite to note that it is just an opinion of an expert person. Union Bank of India may act upon the valuation report without verification or may verify the genuineness of the valuation report before releasing loan in favour of the Lonee being other accused. At the most, the valuation report at Annexure-C is an opinion of the petitioner, it may be wrong or false opinion, but it cannot be treated to be a forged document created in complicity by the petitioner with other accused in defrauding the bank. The allegations levelled in the FIR are proved to be insufficient to bring the petitioner in a role of a person meeting mind with other accused to hatch the conspiracy. Even chargesheet papers are failed to bring such accusation on the record.
17. An approved valuer fixes value of the property taking into account various factors contributing to the sale-ability of the property, geographical location and its importance, availability of transport facility, width of the road lead to the property, amenities available nearby and determines the value of the Page 11 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined property and generates the valuation report in the prescribed form laid down by the bank. It is definitely not the duty of the valuer to look into authenticity of the document. He is not expert to test the genuineness of the documents. He is not equipped with the knowledge to identify the document as fabricated or concocted one or even geographical location. For assessing the value of the property which is prime job of the Valuer, he is not supposed to identify and meet even the owner of the property.
18. The main allegation levelled in the FIR against the petitioner is that properties valued by the petitioner were not in existence as described in the report. As per the prevalent practice, it appears that the person from the office of the petitioner has inspected the properties with the assistance of the Bank Manager who is also accused. If the Bank Manager has not provided the correct address or correct location of the property to be valued, it cannot be said that the valuation report prepared by the petitioner is in aid or in collusion with the other accused to defraud the loan amount or the petitioner was in criminal conspiracy with the other accused. It is needless to state that the valuer is not associated with business transaction when the application for loan is submitted by the lonee/borrower. For the valuer, no occasion arise to go to the particular survey number or particular property prior to he has been called to issue the valuation certificate. It is not expected that the valuer has knowledge to exact location of the property for which he has been called to prepare the valuation report. As stated hereinabove, as per the prevalent practice, the Bank Manager who has received the application for disbursement of loan, would Page 12 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined be in a position to lead the valuer to inspect and see the property before valuation. In the present case, as per the allegations, the Bank Manager Mr.Vasava took Mr.Shinglot, person from the office of the petitioner to inspect, visit and to value the property. The photographs were also taken as it is a part of the valuation report but ultimately it was found that the bank manager has shown immovable property of some third party. Therefore, it is the Bank Manager who was in agreement with the main defrauders and by hatching conspiracy, they have defrauded the bank. Preparation of valuation report without visiting site, by valuer at the most can be treated as his opinion formed under negligence and carelessness but cannot be treated as forgery or preparation of forged documents.
19. In a case where legal opinion, improper legal advise or opinion given by the learned advocate whether attract criminal liability was issue before Hon'ble Apex Court in CBI versus K. Narayana Rao (supra). For worthy assistance, necessary observation and finding of Hon'ble Apex Court reads as under :
"The only allegation against the respondent Panel Advocate 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. The respondent was not named in the FIR. The allegations in the FIR are that A-1 to A-4 conspired together and cheated the Bank 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 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 he has experience in giving legal opinion and has conducted Page 13 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined several cases for other banks also including the Bank concerned herein. The only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question. However, 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. The respondent herein, as a panel advocate, verified the documents supplied by the Bank and rendered his opinion. He was furnished with xerox copies of the documents by the Bank and very few original documents, as well as xerox copies of death certificate, legal heirship certificate, encumbrance certificate, for his perusal and opinion. It is his definite claim that he perused those documents and only after that he rendered his opinion. He also advised the bank to obtain encumbrance certificate for the period from 21- 04-2003 till date. In the same way, he furnished legal scrutiny reports in respect of other cases also.
(Paras 20 and 21) 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. 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 Page 14 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined 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.
(para 27) 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. 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.
(Paras 30 and 31) Thus, there is no prima facie case for proceeding in respect of the charges alleged insofar as respondent herein is concerned. The conclusion of the High Court in quashing the criminal proceedings is upheld and the stand taken by the CBI is rejected. (Para 32)"
20. Without having established active participation of the petitioner in hatching criminal conspiracy to defraud the bank or in absence of any evidence which establishes abetting or aiding the original conspirator, the petitioner cannot be put to rigmarole of trial on just giving valuation report for property Page 15 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined which were non-existent. At the cost of repetition, it can be held that the Bank Manager has played major role in commission of the offence and appears to be main conspirator with the persons who have defrauded the bank. The Bank Manager has taken the petitioner's office person to a particular place and stated that this is the place for which the valuation is required to be made as the loan is asked for that particular place and relaying upon his assistance, the petitioner has issued the valuation report.
21. Now, let examine the allegations of the offence made in the FIR, firstly it is offence of criminal breach of trust and cheating, the definitions of which are given in Sections 405 and 415 IPC and punishment of which are stated in Sections 406 and 420 IPC. Perusal of the averments made in the FIR does not disclose that any property has been entrusted to the petitioner and he has dishonestly misappropriated the said property. Even FIR fails to attract the offence of cheating where essential ingredients are to deceive any person fraudulently or dishonestly or induce a person so deceived to deliver any property. In fact, no property has been delivered to the present petitioner. As far as other offfences are concerned, the allegation of offence under Section 409 is also alleged against the petitioner. Again it is a question of criminal breach of trust by a public servant or by a banker or by merchant or agent. In the case on hand, the prosecution has hopelessly failed that the petitioner being an agent who was entrusted with the property of which he is duty bound to account for and he has committed criminal breach of trust. Therefore, the offence under Section 409 IPC is also not attracted.
Page 16 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined 21.1 The offence under Section 465 defines the punishment for forgery, the definition of which is stated in Section 463 and it demonstrates that any person makes any false document with an intent to cause damage or injury to the public or any person or to support any claim or title or with intent to commit fraud or or that fraud may be committed, commits forgery. In Sushil Suri vs. Central Bureau of Investigation - AIR 2011 SC 1713, the Hon'ble Apex Court has stated the following basic elements of forgery :
"The basic elements of forgery are: (i) the making of a false document or part of it and (ii) such making should be with such intention as is specified in the Section viz.
(a) to cause damage or injury to (i) the public, or (ii) any person; or (b) to support any claim or title; or (c) to cause any person to part with property; or (d) to cause any person to enter into an express or implied contract; or (e) to commit fraud or that fraud may be committed."
22. Making of false document is defined in Section 464 of IPC. A person is said to make a false document or false electronic record if a person dishonestly or fraudulently makes, signs, seals or executes a document or any part of the document or makes or transmit any electronic record or part of any electronic record, affix any electronic signature on electronic record or makes any mark denoting the execution of a document or the authenticity of the document including electronic signature with intention to cause it to be believed that such document or part of document though he knows that it was not made, signed, sealed or executed or affirmed or without lawful authority dishonestly and fraudulently alters the document or dishonestly or fraudulently causes any person to sign, seal, execute or alter the document.
Page 17 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined
23. In the present case, the allegations in the FIR is limited to the extent that the petitioner being valuer of Union Bank of India generated the false valuation report for immovable property which was not in existence or rather the construction was not in existence. Simply reading the allegations, it does not attract essential ingredients of Section 463 or 464 of the IPC as far as the present petitioner is concerned. The offence under Sections 467 and 468 are with regard to forgery of valuable security and forgery for the purpose of cheating. Preparation of valuation report being an opinion of the petitioner cannot be treated to be forgery of valuable security within realm of Section 467 of the IPC. As far as offence under Section 468 of the IPC is concerned, if forgery is committed intending that the document is used for the purpose of cheating, then it is an offence under Section 468. In the present case, the valuation report has been tendered to the Bank Manager of Union Bank of India before disbursement of the loan. It is an opinion of the petitioner, may be improper or on the basis of non-existence of property or prepared by misleading himself, but it remains an opinion and cannot be treated as document forged with intention to defraud the bank.
24. As examined hereinabove, the prosecution has hopelessly failed to prove that the petitioner has hatched conspiracy with main accused and defrauded the bank. The petitioner's role is limited to issuance of the valuation report whereby unfortunately he was misled by the Bank Manager Mr.Vasava and some other property has been visited at the instance of Bank Manager Mr.Vasava and valuation report was prepared. At the most, generation of such valuation report, is negligence or carelessness.
Page 18 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined
25. The bank may before acting upon the valuation report again inspect the property and may take the separate and independent decision or another valuation report. The valuation report at Annexure-C, generated by the petitioner cannot be treated as forged document or false document, more particularly when prosecution has failed to prove that such document is prepared to abate the main accused in defrauding the bank. The contours of the power to quash criminal proceedings under Section 482 of the Cr.P.C. are well defined.
26. In V. Ravi Kumar vs. State Rep. By Inspector of Police - 2019 (14) SCC 568, the Hon'ble Apex Court observed that when accused seeks quashing of FIR invoking inherent jurisdiction of the High Court, it is wholly impermissible for High Court to enter into the factual aspect to decide the correctness of the allegations in the complaint. Three Judges' Bench of the Hon'ble Apex Court in case of Neeharika Infrastructure Private Limited vs. State of Maharashtra and others - (2021) 19 SCC 401, elaborately considered the scope and extent of power under Section 482 of the Cr.P.C. It has been held that power of quashing should be exercised sparingly with circumspection and in the rarest of rare case, but the standard should not be confused with the norms stated in the context of death penalty. While stating scope of Section 482, it was observed by Hon'ble Apex Court that the Court cannot ascertain the nonance of the fact and embark upon inquiry as to find out genuineness or reliability or otherwise of allegations made therein. However, if Court think find, regard being had to the parameters of quashing by keeping the self-restrain imposed by law and more Page 19 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined particularly the parameters laid down by the Hon'ble Apex Court in case of R.P.Kapur vs. State of Punjab - AIR 1960 SC 866 and State of Haryana vs. Bhajan Lal - AIR 1992 SC 604, the Court would have jurisdiction to quash the FIR.
27. In Abhishek vs. State of Madhya Pradesh (supra), the Hon'ble Apex Court while referring the judgment in case of Mahmood Ali (supra), held as under :
"16. Of more recent origin is the decision of this Court in Mahmood Ali and others vs. State of U.P. and others (Criminal Appeal No. 2341 of 2023, decided on 08.08.2023) on the legal principles applicable apropos Section 482 Cr.P.C. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482 Cr.P.C. or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines."
28. At this juncture, a worthy reference can also be made to the judgment in case of State of Haryana Vs. B.Bhajanlal & ors., AIR 1992 SC 604, wherein the Hon'ble Apex Court summed up the proposition of law as under:-
Page 20 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined "(1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations ins the F.I.R. and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the code.
(3) Where, the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same donot disclose the commission of any offence and make out the case against the accused.
(4) Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under S.155(2) of the Code.
(5) Whether, the allegations made in the F.I.R. or complaint are sO absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where, there is an express legal bare engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) toi the institution and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."Page 21 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025
NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined
29. Applying the aforesaid dicta to the case on hand in background of the fact discussed hereinabove, as noticed by this Court that the essential ingredients of the alleged offence are not established in the matter, more particularly when it is proved on record that petitioner being an empanelled valuer has done nothing except to prepare valuation report, acceptability of which can be decided by the bank itself before releasing the loan, the petitioner cannot be held to be a person indulge in alleged offence of criminal breach of trust and forgery.
30. At this juncture, I may refer to the note appended with valuation report as under :
"Note:
The photostate copy of documents mentioned in item no. 03 of this valuation report is provided to us by the Owner. We have relied upon details and information provided by the owner.
This valuation is based upon actual observation and particulars provided to us.
The value varies with time and purpose. The said value may not be realised in case of forced sale. May be considered 50% less than the valuation.
We declaim our responsibility towards any matter stated in this report towards Title and ownership of the property by any person / proposer.
The said valuation is done considering this property as Owner occupied and possession available to Bank as and when required. Bank may take an undertaking in the said matter from the Owner.
Valuation is a subject to variable opinion. Valuer is not Page 22 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined liable for any claim or damage or cost and any consequences whatsoever.
Valuation is done on oral instruction and request from Owners.
Present market value is derived considering current period and market trend, location, locality, development in this area, amenities like school, hospital, shopping / market places in nearby area, potential and demand of such property, technical specification and other relevant factors.
Declaration from valuers I hereby declare that :-
a) The information furnished above is true and correct to the best of my knowledge and belief and I have made an impartial and true valuation of the property.
b) I have no direct of indirect interest in the property valued.
c) I have personally inspected the property on the date mentioned above.
d) I have not been convicted of any offence and sentenced to a term of imprisonment.
Place : Surat (BANKIM DAVE) Date : 25-08-2017 REGISTERED ARCHITECT AND GOVT. APPROVED VALUER CAT/386/2000-2001 RAMANLAL DAVE & SONS"
31. Noticeably the petitioner being valuer has disclaimed any responsibility towards any matter stated in this report towards title and ownership of the property. It was also subject to Page 23 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025 NEUTRAL CITATION R/SCR.A/10948/2021 CAV JUDGMENT DATED: 21/04/2025 undefined variable opinion and valuer was not liable for any claim or damage or cost or any consequences whatsoever. So this disclaimer and declaiming clause also perhaps put the valuer to the position that he has not done anything which is in complicity with the defrauders who hatched the criminal conspiracy.
32. In net result, the petition succeeds. Putting the petitioner on rigmarole of trial is abuse of process of law. Resultantly, the FIR registered as CR No.11210046212497 of 2021 with Puna Police Station, Surat for the offence punishable under Sections 406, 409, 420, 504, 506(2) an 120B of the Indian Penal Code and further proceedings arising therefrom are quashed qua the petitioner - Mr.Bankim Tarun Dave. Rule is made absolute. Direct service is permitted.
(J. C. DOSHI, J) GAURAV J THAKER Page 24 of 24 Uploaded by GAURAV J THAKER(HC00951) on Tue Apr 22 2025 Downloaded on : Tue Apr 22 21:54:23 IST 2025