Allahabad High Court
K. Gangadharan vs C.B.I. on 23 February, 2023
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4430 of 2022 Applicant :- K. Gangadharan Opposite Party :- C.B.I. Counsel for Applicant :- Vijit Saxena Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Dinesh Kumar Singh,J.
1. Heard learned counsel for the applicant, Sri Gyan Prakash, learned Senior Counsel assisted by Sri Sanjay Kumar Yadav, learned counsel for the CBI and perused the record.
2. The present application under Section 438 Cr.P.C. has been filed by the accused applicant seeking bail in anticipation of his arrest in Case RC No.219 2019 E 0006 dated 29.06.2019 in Special Case No.1/22 (CBI vs M/s Nafto Gaz India Pvt. Ltd. & Ors.), under Section 120-B r/w 420, 467, 468, 471 IPC and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988, P.S. CBI/EO-I, New Delhi, District Ghaziabad pending in the court of Special Judge, Anti Corruption, CBI, Ghaziabad, Uttar Pradesh.
3. Allegations in the FIR are that in the year 2009-10 and 2012-13, M/s Nafto Gaz India Pvt. Ltd. having its registered office at E 14/13, Vasant Vihar, New Delhi through its Managing Director, Mahdoom Bava was availing credit facilities of Rs.472.79 crore form the consortium of eight banks including Corporation Bank, Mid Corporate Branch, Sectionr-18 Noida, U.P. which had sanctioned Cash Credit Limit of Rs.20 crore and later on credit of bank guarantor of Rs. 85 crore to the said company M/s Nafto Gaz India Pvt. Ltd. The said facilities were secured by pari passu charge on book debts/current assets amounting to Rs.528.16 crore pledge of fixed deposit amount to Rs.12.75 crore, Plant Machinery and other movable assets amounting to Rs.3.20 Crore, Residential building situated at Plot No.13, Street No.E-14M, Vasant Vihar, New Delhi of the Company valuing Rs.5.91 crore and residential property situated at 51-A, Khasra No.75, Arjun Nagar, Yusuf Sarai, New Delhi in the names of guarantors namely accused Deepak Gupta, Seema Gupta and Ram Murti Devi.
4. The account of M/s Nafto Gaz India Pvt. Ltd turned NPA with outstanding balance of Rs.92.21 crore on 22nd November, 2012. Thereafter in the year 2013 accused Vijay Kumar and Vyas Dev also stood as guarantors in the loan account of the company and mortgaged another immovable property bearing plot no.H-7, Khasara No.79/6/1, Laxmi Park Nangloi Jat, Delhi admeasuring 1000 Sq. yards, allegedly owned by them as security exclusively to Corporation Bank. Valuation of the said property was done by accused Ravinder Pandita, valuer for Rs.20 crore and the legal search report in respect of the same was given by present accused applicant certifying that accused Vijay Kumar and Vyas Dev were registered owners of the property and it had valid marketable title which could be mortgaged in favour of the bank. Accordingly, the property having original sale deed in the joint names of Mr. Vijay Kumar and Mr. Vyas Dev was equitably mortgaged with the bank.
5. The allegation in the FIR in respect of the said property for which accused applicant had submitted the report was that Plot No.H-7, Khasara No. 79/6/1, Nangloi Jat, Delhi for which original sale deed was deposited to the Bank, was defective as from the comparison of the certified copy of the said sale deed obtained from the sub-registrar office and the original deposited with the bank to reveal that some of the crucial contents of the same are different. The signatures of the vendor on the original sale deed available with the bank and its certified copy was also slightly different. The property was also not mutated in the names of the mortgager. Valuation of Rs.20 crore as per the valuation report was much higher side and the value of the property was only Rs.3-4 crore approximately. CBI in its investigation found that original sale deed No.7703 dated 03.07.1985 in respect of the said property, was found to be in the custody of Vyas Dev son of Harbans Lal which he produced before the CBI and the same was seized. Certified copies of the same was also collected from the office of concerned Sub- Registrar through the Achieves Department, Delhi. Scrutiny of the said document revealed that the original sale deed seized from Vyas Dev matches with the certified copy of the same collected from the Sub Registrar Office. However, the same mismatched with one deposited with the bank. It is mentioned at the bottom line of the page no.2 of the original seized from Vyas Dev and its certified copy collected from the Sub Registrar office that "the vendee will use the said land for the purpose of agriculture". However, the said line is missing in the sale deed mortgaged with the bank, as such, it was found that mortgaged documents deposited in the bank was forged sale deed
6. Role of the accused applicant was noticed by the CBI during investigation and its investigation report in para 16.131 to 16.135 it is noticed as under;
16.131 Investigation revealed that the legal search of the property was got conducted by the bank through accused K. Gangadharan, Advocate on the panel of the bank who submitted a false report dated 04.03.2013 to the bank certifying that Sh. Vyas Dev and Sh. Vijay Kumar both sons of Sh. Harbans Lal were registered owners of the subject property by virtue of sale deed no 7303 dated 03.07.1985 and had clear valid marketable title which could be mortgaged in favour of the bank. He had further falsely certified that the provisions of Land Reforms Act was not applicable to the property and he had personally visited the property and verified the physical possession.
16.132 Investigation revealed that in the records of the revenue authorities the said property was vested in Gaon Sabha u/s 81 of Delhi Land Reforms Act, 1954 vide 0-4 no. 445 and Order no. SDM/RA/Kot dated 23.07.1985 in case no. 110/84 passed by the SDM. Further as per Khatoni Record for the year 2002-03 of Village Nangloi Jat, the owner of the property bearing Khasra No. 79//6/1 (04-04) is Gaon Sabha (vested land us 81 of Delhi Land Reforms Act, 1954), Thus, after 23.07.1985 Gram Sabha became the owner of the aforesaid land.
16.133 As per section 81 of Delhi Land Reforms Act, 1954 a Bhumidhar or an Asami is liable to ejectment on the suit of the Gaon Sabha or the land holder, as the case may be, for using land for any purpose other than a purpose connected with agriculture, horticulture or animal husbandry. Therefore mortgage of the aforesaid property through sale deed dated 03.07.1985 to the bank was not legal.
16.134 Accused advocate K. Gangadharan in his report dtd. 04.03.2013 had also concealed the fact about mis-match of the sale deed submitted to the bank by the borrower with the copy of the same available in the sub-Registrar office.
16.135 Investigation further revealed that for giving a false report in respect of the aforesaid property accused K. Gangadharan also accepted illegal gratification of Rs. 1 lac from accused Mahdoom Bava in cash.
16.136 Investigation further revealed that accused Ravinder Pandita, approved valuer of the bank also gave a false valuation report No. RP/CORP/ND/2012-13 dtd. 11.03.2013 in respect of the property mentioning its details as Plot No. H-7, Khasra No 79/5/1, Laxmi Park, Nagloi Jat, New Delhi New Delhi and value of Rs. 20 Cr @ of Rs. 2 lac per Sq yard and realizable value as Rs. 18 cr. The valuer also falsely certified that the site was visited/ property inspected on 09.03.2013 in the presence of owners representative. The photograph of a different plot was also taken and enclosed with his report.
7. Learned counsel for the accused applicant submits that the accused applicant has performed his duty as the Advocate of the Bank. He also submits that for the tendering legal advice, the accused applicant cannot be an accused unless it can be found that the accused applicant had given report malicious for consideration.
8. Learned counsel for the accused applicant has placed reliance on the following judgements:-
"i. Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao, (2012) 9 SCC 512;
ii. Surendra Nath Pandey and another vs. State of Bihar and another; (2020) 18 SCC 730;
iii. Gyan Chandra Mehrotra vs. State through CBI/ACB, District Lucknow, 2019 (108) ACC 81; and iv. Application U/s 482 Cr.P.C. No. 3350 of 2014 (Rakesh Chandra Goyal vs. The State of U.P. through SP, CBI/ACB, Lucknow, decided on 11.04.2019".
9. This Court in the case of Application U/S 482 No. 40869 of 2022 (Tarun Aggarwal vs Union of India and 2 others) has held that for rendering of legal opinion for granting of loans is an important component of an advocate's work. If the Lawyer has been negligent or unprofessional in submitting the report, then criminal proceedings can not be drawn against him. However, if it is found that the Advocate, who submitted the report, was an active participation to defraud the bank, then he is liable to be prosecuted. Paragraphs 27 to 30 of the said judgements in the case of Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao (supra) case read as under;
"27. 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 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.
28.In Jacob Mathew v. State of Punjab [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] 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.
29. In Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra [(1984) 2 SCC 556 : 1984 SCC (Cri) 335] this Court held that: (SCC p. 562, para 8)
8. 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.?
30. 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. Learned counsel for the accused applicant has placed reliance on some documents of Municipal Corporation at Delhi to say that the property does exit at Plot H-7 Khasra No.79/6/1, Laxmi Park, Nagloi Jat, New Delhi for which MCD had challaned in the year 2019-20.
11. This defence should be available the accused applicant at appropriate stage.
12. Looking at the investigation report and role of the accused applicant, which has been noted hereinabove, this Court find that it is not a case where the said accused applicant was negligent. If the allegation is that he has given a false report after accepting the bribe amount, his case does fall within the parameters of being negligent or unprofessional. There is allegation of false report given after accepting bribe of rupees one lakh from main accused Mahdoom Bava, this Court does not find it a fit case where the accuse applicant should be enlarged on anticipatory bail as the offence allegedly committed by the accused- applicant does not fall within the parameters of Section 438 Cr.P.C.
13. In the circumstances, looking at the allegations and financial and banking fraud, this Court would not enlarge the applicant on anticipatory bail particularly several anticipatory bail applications have been rejected by this Court including valuer of the property, therefore, the present anticipatory bail application is hereby rejected.
Order Date :- 23.2.2023 A.Kr.