Jharkhand High Court
Sidharth Shanker Dubey Aged About 51 ... vs Union Of India Through C.B.I. ..... ... on 9 March, 2021
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P.No.374 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 374 of 2021
Sidharth Shanker Dubey aged about 51 years, s/o Sri Markandey Narayan
Dubey, Resident of SJG Apartment, Bhalubasa, P.O.- Agrico and P.S.-
Sitaramdera, Jamshedpur, District- East Singhbhum.
..... Petitioner
Versus
Union of India through C.B.I. ..... Opposite Party
.....
For the Appellant : Mr.P.P.N. Rai, Senior Advocate For the C.B.I. : Ms. Nitu Sinha, Advocate .....
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 09.03.2021 PRONOUNCED ON 11.05.2021
Anil Kumar Choudhary, J. Heard the parties through video conferencing.
2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, with the following prayers
(i) to quash the part of the order dated 19.01.2021 passed by learned Additional Judicial Commissioner XVI-cum-special Judge, CBI, Ranchi in connection with R.C. No. 03 of 2021 corresponding to R.C. No. 0932018S0005 whereby and where under the learned court below has taken cognizance of the offence under Section 120B read with Sections 420, 467, 468, and 471 of the Indian Penal Code and Sections 13(2) read with Sections 13 (1) (d) of the Prevention of Corruption Act, 1988 and directed the O/C to issue summons inter alia to the petitioner;
(ii) to quash the entire criminal prosecution pending against the petitioner in connection with R.C. No. 03 of 2021 corresponding 2 Cr.M.P.No.374 of 2021 to R.C.No. 0932018S0005 in the Court of Additional Judicial Commissioner XVI-cum- Special Judge, CBI, Ranchi.
3. The brief facts of the case is that the petitioner being an empanelled legal advisor of the Punjab National Bank entered into a criminal conspiracy with the co-accused persons including the officers of the said bank and on the basis of forged and fabricated collateral securities induced the officers of Punjab National Bank, Bistupur and Mango branch of Jamshedpur for sanctioning and disbursing of 2 overdrafts against immovable property, two housing loans, two overdraft loans and one cash credit (Hypothecation) facility and dishonestly and fraudulently caused wrongful loss to the said bank to the tune of ₹ 444.90 lakhs and corresponding wrongful gain to themselves and others. The overt act of the petitioner in the said conspiracy is that the petitioner with deliberate and dishonest intention gave false search report and legal opinion in respect of sale deed no. 2074, dated 13.05.2014 and deed no. 2025 dated 10.05.2014 mentioning therein that equitable mortgage can be created by depositing original sale deeds including the sale deed executed by Archana Sinha in favour of Harjeet Singh registered in the office of District Sub-Registrar, Seraikela-Kharsawa and falsely mentioned that the said property is mutated in the name of the borrower and in criminal conspiracy with the co-accused persons to facilitate the co- accused persons succeed in fraudulently getting the said loan amount sanctioned and disbursed in their favour and thus cheating the bank by siphoning of huge amount of bank's fund . It is also specifically alleged against the petitioner that the petitioner in connivance with the co-accused Harjeet Singh and Noel Navneet was instrumental in submission of fake/defective title deed of the property of Noel Navneet, the documents of which property upon being verified by another advocate; it was found that the title of the house is not established in favour of the seller of Noel Navneet namely Ganesh Gope.
4. Mr. P.P.N.Roy, the learned senior counsel appearing for the petitioner submits that the impugned order taking cognizance and the entire criminal prosecution pending against 3 Cr.M.P.No.374 of 2021 the petitioner is an abuse of the process of the court in view of the fact that the petitioner being a panel advocate of Punjab National Bank, there is no material collected against him. It is then submitted that the allegation against the petitioner are bald and omnibus in nature and in all likelihood the prosecution will be abortive and futile. It is then submitted that in view of the order of Hon'ble Supreme Court of India in the case of Surendra Nath Pandey v. State of Bihar passed in Criminal Appeal No. 1012 of 2015 (Arising out of Special Leave Petition (Criminal) No. 9739 of 2012) dated 3.8.2015, wherein the Hon'ble Supreme Court of India relying upon its own judgment in the case of Central Bureau of Investigation v. K.Narayana Rao (2012) 9 SCC 512 (which is wrongly been printed as (2011) 9 SCC 515 in the copy of the order filed by the learned Senior counsel), in the facts of that case where upon reading of the charge-sheet the Hon'ble Supreme Court of India found that the charge-sheet does not refer to any specific finding of investigation regarding the allegation against the appellant of the case that the appellant of the case as panel advocates had published false Search Report/ NEC/legal opinion with regard to the properties/land documents in order to cheat the Bank and also found the allegations to be bald and omnibus and do not make any specific reference to the appellants of that case to facilitate obtaining loan by the concerned persons; the Hon'ble Supreme Court in that case quashed the proceedings of the criminal case.
5. The learned senior counsel next submitted that Jurisdiction under section 482 of the Code of Criminal Procedure has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice and in this respect relied upon the judgment of the Hon'ble Supreme Court of India in the case of All Cargo Movers India (P) Ltd. v. Dhanesh Badarmal Jain, (2007) 14 SCC 776, paragraph- 17 of which reads as under 4 Cr.M.P.No.374 of 2021
17. In G. Sagar Suri v. State of U.P.this Court opined: (SCC p. 643, para
8) "8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence.
Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
6. It is submitted by the learned senior counsel that the Supreme Court of India has enunciated the principle regarding scope and ambit of the power of courts under section 482 of the Code of Criminal Procedure in the case of Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1 : (2008) 1 SCC (Cri) 259 paragraphs-23 and 24 of which reads as under:
Scope and ambit of courts' powers under Section 482 CrPC
23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. (Emphasis supplied) It is lastly submitted by the learned senior counsel for the petitioner that the said entire criminal proceeding as well as the impugned order taking cognizance of the offences be set aside.
7. Ms. Nitu Sinha, The Learned Counsel for the Central Bureau of Investigation on the other hand defended impugned 5 Cr.M.P.No.374 of 2021 order and submitted that unlike the case of Central Bureau of Investigation v. K.Narayana Rao (supra) in this case the petitioner has been named in the FIR and in the FIR itself it has been alleged that the petitioner in criminal conspiracy with the co- accused persons has defrauded the bank of huge amount of money and the same has been found to be true in the investigation by the Central Bureau of Investigation and accordingly after completion of investigation the Central Bureau of Investigation after considering the statement of the witnesses examined during the investigation of the case as well as the documents seized has submitted charge-sheet against the petitioner which is not even disputed by the petitioner. It is then submitted that unlike the case ofCentral Bureau of Investigation v. K.Narayana Rao (supra) wherein the Supreme Court of India has even reproduced the verbatim of the legal opinion in the said judgment submitted by the respondents of that case; in this case the petitioner has neither made any averment in the petition regarding the contents of the opinion furnished by him nor the petitioner has filed the copy of the said opinion of him for perusal of this court and unlike the case of Central Bureau of Investigation v. K.Narayana Rao (supra) the petitioner has neither made any averment in the petition regarding the contents of the statement of the witnesses examined by the Central Bureau of Investigation during course of the investigation of the case nor annexed the copy of the said statements along with the petition. It is also submitted that unlike the case of Central Bureau of Investigation v. K.Narayana Rao (supra) there is no material before this court to prima facie arrive at a conclusion that the allegations against the petitioner are bald and omnibus and do not make any specific reference to the petitioner to facilitate obtaining loan which is a sine qua non for quashing of the criminal proceeding against the petitioner rather the material in the record suggest that there is ample evidence collected during the investigation of the case against the petitioner to establish the charges for which charts it has been submitted 6 Cr.M.P.No.374 of 2021 against him and cognizance for which offences has rightly been taken by the learned trial court. It is then submitted that it is a settled principle of law that it is extremely difficult to adduce direct evidence to prove a criminal conspiracy. In this respect the learned counsel for the Central Bureau of Investigation relied upon the government of honourable Supreme Court of India in the case of Rajiv Kumar v. State of U.P., (2017) 8 SCC 791,paragraph 45 of which reads as under:
45. The essential ingredients of the offence of criminal conspiracy are: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is, therefore, plain that meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy. Existence of conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. In some cases, indulgence in the illegal act or legal act by illegal means may be inferred from the knowledge itself.
It is lastly submitted that this petition being without any merit be dismissed.
8. Having heard the submissions of the bar and after carefully going through the record it will be appropriate to refer to paragraph 20 of the said case of Central Bureau of Investigation v.
K.Narayana Rao (supra)wherein the facts of the said case has been discussed in detail which reads as under
20. 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 120-B, 419, 420, 467, 468 and 471 IPC and 7 Cr.M.P.No.374 of 2021 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 practising 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. The 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. (Emphasis supplied) paragraph 31 of Central Bureau of Investigation v. K.Narayana Rao (supra) which was even quoted by the Supreme Court of India in the case of Surendra Nath Pandey v. State of Bihar (supra) reads as under
31. 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 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 8 Cr.M.P.No.374 of 2021 prosecution. Such tangible materials are lacking in the case of the respondent herein.(Emphasis supplied) Thus it is crystal clear that the law is well settled that an advocate giving a legal opinion can be prosecuted if there is a link or evidence to connect him with the other conspirators for causing loss to the institution which is precisely the allegation against the petitioner and in this case since the beginning the name of the petitioner has been incorporated in the FIR itself with the specific allegation that he in criminal conspiracy with the co-accused persons has defrauded the bank and the said allegation against the petitioner has been found to be true by the Central Bureau of Investigation after investigation of the case resulting in charge-sheet being filed against the petitioner for the offences for which the learned trial court has taken cognizance of.
Though the learned senior counsel for the petitioner relied upon the judgment in the case of Central Bureau of Investigation v.
K.Narayana Rao (supra) wherein the Supreme Court relied heavily upon the legal opinion furnished by the respondent of the case and even quoted the entire legal opinion in the judgment itself as well as considered the statement of the witnesses examined during the investigation of the case to arrive at a conclusion that there is no substance in the record to implicate the respondent of the case with criminal prosecution yet for reasons best known to the petitioner the petitioner has neither filed the copy of the legal opinion furnished by him nor filed the copy of the statements of the witnesses recorded during the investigation of the case nor there is any averment in this respect in the petition. In the case of Inder Mohan Goswami v. State 9 Cr.M.P.No.374 of 2021 of Uttaranchal, (supra) the caution to be exercised by the court while exercising the jurisdiction under section 482 of the Code of Criminal Procedure has been discussed in detail. Paragraph- 27 of which reads as under :
27. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (Emphasis supplied)
9. After carefully going through the materials in the record this court is of the considered view that in view of the specific allegation against the petitioner of being involved in the criminal conspiracy and thereby defrauded the Punjab National Bank to the tune of several crore rupees as already mentioned above and gain of the said defrauded amount to himself and the co-accused persons and keeping in view the undisputed fact that the Central Bureau of Investigation after completion of the investigation found the allegation against the petitioner to be true; certainly this is not a case where it can be said that continuing the criminal prosecution of the petitioner for specific allegation against him for the offences- the cognizance of which has already been taken by the learned trial court, be termed as an abuse of process of court. Thus there is no justifiable reason to quash the part of the order dated 19.01.2021 passed by learned Additional Judicial Commissioner XVI-cum-
special Judge, CBI, Ranchi in connection with R.C. No. 03 of 2021 corresponding to R.C. No. 0932018S0005 whereby and where under the learned court below has taken cognizance of the offence under Section 120B read with Sections 420, 467, 468, and 471 of the Indian Penal Code and Sections 13(2) read with Sections 13 (1) (d) of the 10 Cr.M.P.No.374 of 2021 Prevention of Corruption Act, 1988 or for that matter to quash the entire criminal prosecution pending against the petitioner in connection with R.C. No. 03 of 2021 corresponding to R.C.No. 0932018S0005 in the Court of Additional Judicial Commissioner XVI- cum- Special Judge, CBI, Ranchi.
10. Accordingly this petition being without any merit is dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated 11th May, 2021 AFR/Smita/-