Madhya Pradesh High Court
Mohd. Zafar Khan vs The State Of Madhya Pradesh on 23 July, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 23rd OF JULY, 2024
MISC. CRIMINAL CASE No. 9957 of 2024
(MOHD. ZAFAR KHAN S/O SHRI ABDUL AJIJ KHAN
Vs
STATE OF MADHYA PRADESH AND ANOTHER)
Appearance:
(SHRI AVINASH SIRPURKAR, LEARNED SENIOR COUNSEL WITH SHRI
YOGESH GUPTA- ADVOCATE FOR THE PETITIONER)
(MS. VARSHA SINGH THAKUR - GA FOR RESPONDENT NO.1/STATE)
(SHRI SHUBHAM VERMA - ADVOCATE FOR RESPONDENT NO.2)
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ORDER
1. Petitioner has preferred the present petition under Section 482 of Cr.P.C. invoking the extraordinary jurisdiction of this Court seeking quashment of FIR dated 17.7.2022 bearing Crime No.148/2022 registered at P.S. Balwada, District Khargone for the offence under Section 420, 465, 467, 471 and 120-B of the Indian Penal Code, 1860 (in short "IPC") and all the consequential proceedings arising therefrom.
2. Brief facts of the case are that complainant Sulochana had purchased the land in question from the land owner Rajendra by registered sale deed dated 23.2.2016 for consideration of Rs.11 Lakhs, but thereafter the co-accused Rajendra, even after the sale of the aforesaid land, fraudulently obtained agricultural loan amounting to 2 Rs.7 Lakhs from Union Bank of India, Branch Bagod. Present petitioner is a practising lawyer. He was Panel Lawyer of the Union Bank of India and with the conspiracy of other co-accused persons and to defraud the complainant, he has prepared the false and forged search report with the ulterior motive for releasing the Bank loan in favour of the co-accused Rajendra. Complainant Sulochana preferred a written complaint to the S.P. Khargone. On the basis of the aforesaid, offence has been registered against the present petitioner and other co-accused persons.
3. Learned counsel for the petitioner contended that the petitioner is innocent and he has been falsely implicated in this matter. He is a practising lawyer at Badwah and empanelled advocate with the Union Bank of India. With the bonafide intention he has prepared the search report after going through the data available on the website of the Revenue Department, wherein he found that the said land belongs to Rajendra Jat. When the petitioner came to know that co-accused Rajendra Jat has fraudulently obtained the aforesaid loan from the Bank, he issued notice to the Rajendra Jat and guarantor Jitendra Jat to deposit the aforesaid amount in the bank. The loan was sanctioned by the Bank Manager and the petitioner had no role in sanctioning of the loan. He has been released on anticipatory bail by the order of this Court. He is a 61 years old person. Nothing is available on record that he has committed the alleged offence. Hence, it is prayed that the aforesaid FIR and all the subsequent criminal proceedings initiated against him be quashed.
34. Per contra, learned counsel for the Respondent No.1/State opposes the prayer by submitting that on the basis of the cogent evidence available on record, prima facie aforesaid offence is made out against the present petitioner. The fact of fraud and forgery may be proved after recording the evidence. The case of the prosecution is based upon the cogent documentary evidence. Hence, the petition deserves to be dismissed.
5. Counsel for the respondent No.2 also opposes the petition and prays for its rejection.
6. Heard learned counsel for the parties at length and perused the case diary with due care.
7. It is admitted position that at the time of incident petitioner was working as Panel Lawyer with Union Bank of India, Branch Bagod and on the basis of the search report submitted by him, the above bank has sanctioned loan of Rs.9 Lakhs in favour of co-accused Rajendra Jat, in which co-accused Jitendra Jat is guarantor. It is a common practice that most of the banks obtain legal opinion for granting loan. It is an integral component of advocates working in the banking sector.
8. A lawyer, on his part, has a responsibility to act to the best of his knowledge and skills and to exhibit an unending loyalty to the interest of his clients. He has to exercise his knowledge in a manner that would advance the interest of his clients. However, while acting so the advocate does not assure to his client that the opinion so rendered by him is flawless and must in all possibility act to his gains. Just like in 4 any other profession, the only assurance which can be given and may even be implied from an advocate so acting in his professional capacity is that he possesses the requisite skills in his field of practice and while undertaking the performance of task entrusted to him, he would exercise his skills with reasonable competence. The only liability that may be imputed on an advocate while so acting in his professional capacity is that of negligence in application of legal skills or due exercise of such skills.
9. The Hon'ble Apex Court in the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayan Rao reported in (2012) 9 SCC 512 held as under:-
"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 5 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."
10. The law laid down by the Hon'ble Apex Court in the case of K. Narayan Rao (supra) has been followed and approved by the Hon'ble Apex Court subsequently in the case of Surendra Nath Pandey and others v. State of Bihar and others [MANU/SC/1216/2015] by observing as under:-
4. The High Court by the impugned judgment has refused to quash the First Information Report (FIR) on the ground that the same prima facie discloses commission of the offences alleged against the Appellants who are the panel advocates of the Bank. A reading of the FIR would go to show that the allegations levelled against the Appellants is that as panel advocates they had furnished false Search Report/NEC/legal opinion with regard to the properties/land documents in order to cheat the Bank and to facilitate obtaining of loan by the concerned persons. On investigation of the FIR, a charge sheet has been submitted, a copy of which is enclosed to the present Appeal Paper Book. A reading of the chargesheet does not refer to any specific finding of investigation.6
5. Taking into account the contents of the FIR, we are left with the impression that the said allegations are bald and omnibus and do not make any specific reference to the role of the Appellants in any alleged conspiracy. In Central Bureau of Investigation v. K. Narayana Rao [(2012) 9 SCC 512] to which one of us (Ranjan Gogoi, J.) was a party, it has been held by this Court that a criminal prosecution on the basis of such bald and omnibus statement/allegations against the panel advocates' of the Bank ought not to be allowed to proceed as the same constitute an abuse of the process of the Court and such prosecution may in all likelihood be abortive and futile. ...
6. Taking into account the aforesaid facts and the ratio of the law laid down by this Court in Central Bureau of Investigation v. K. Narayana Rao (supra), we are of the view that the High Court was plainly wrong in refusing to interdict the proceedings against the Appellants. We, therefore, set aside the order of the High Court and quash the proceedings in G.R. No. 710 of 206 arising out of Agiaon (G) P.S. Case No. 20 of 2006 pending before the Chief Judicial Magistrate, Bhojpur, Ara insofar as the two Appellants Surendra Nath Pandey and Suresh Prasad are concerned."
11. The law laid down in both the aforesaid cases is also followed by the High Court of Gujarat, Rajasthan and recently by High Court of Chhattisgarh in the matter of Subha Jakkanwar Vs. State of Chhattisgarh vide order dated 26.11.2019 passed in Criminal Misc. Petition No.1614/2017.
12. In view of the aforesaid law laid down by the Hon'ble Apex Court, reverting to the facts of the instant case, it is clear that an advocate while performing his professional duties cannot be held liable for offence in regard to which no direct evidence has been adduced 7 against him and the liability in criminal cases against an opining advocate arises only when an advocate has played active participation in a conspiracy to defraud the bank. Merely because his opinion may not be acceptable, he cannot be criminally prosecuted, particularly in absence of direct evidence against him. In the present case, petitioner was neither named in the written complaint dated 21.10.2021 nor in the FIR dated 17.7.2022. Only on the basis of the statement of Branch Manager, first time his name has been indicated stating that with intention to extend some monetary advantage to the borrower, he has prepared the search report in his favour, which was found to be untrue. There is no evidence available on record to establish that the petitioner met other co-accused persons at any point of time and there is no allegation that he gained any pecuniary benefit as a result of preparing the search report. Except the statement of Bank Manager and employees that the report was false, there is no material to show that the petitioner was at any point of time was involved in any criminal conspiracy with the other co-accused persons to commit the aforesaid offence.
13. The Hon'ble Apex Court in the case of Central Bureau of Investigation Vs. Aryan Singh etc. Reported in 2023 LiveLaw (SC) 292 has laid down the parameters of exercising the extraordinary power of quashing the criminal proceedings by observing as under:-
"As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr.P.C., the Court is not required to conduct the mini trial. The High Court in the common 8 impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution / investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution / investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr.P.C., the Court has a very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".
14. In the light of the aforesaid law laid down by the Hon'ble Apex Court, this Court is of the considered opinion that in the light of the allegations made in the charge-sheet, even if the allegations are accepted in entirety, the same do not disclose any commission of offence and make out a case against the petitioner. However, it is beyond doubt that a lawyer owes an unremitting loyalty to the interest of the client and it is the lawyer's responsibility to act in manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be held liable for criminal prosecution, particularly in absence of cogent evidence that he was associated with other conspirators. At the most he may be liable for gross negligence or professional misconduct if its is established by acceptable evidence, but cannot be prosecuted for the offences under Section 420, 465, 467, 471 and 120-B of IPC along with the other conspirators without any proper and acceptable link between them.
915. In the light of the above discussion and after analysing all the material, this Court is of the considered opinion that no prima facie case is made out against the petitioner in respect of the allegation levelled against him.
16. Accordingly, this petition is allowed and the FIR dated 17.7.2022 bearing Crime No.148/2022 registered at P.S. Balwada, District Khargone for the offence under Section 420, 465, 467, 471 and 120-B of IPC and all the subsequent proceedings including the charge sheet produced in pursuant to the said crime number are hereby quashed so far it relates to the present petitioner. However, the trial against the other co-accused persons shall remain continue.
17. It is made clear that the trial Court would decide the trial against the other accused persons without being influenced by any of the observations made herein-above.
18. The petition is allowed to the extent indicated herein-above.
Certified copy as per rules.
(ANIL VERMA)
JUDGE
Trilok/- TRILOK SINGH SAVNER
2024.07.25 14:58:49
+05'30'