TMI Blog2013 (7) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... t was liable for abusing their official position as public servants and for having conspired with private individuals u/s 120-B, 419, 420, 467, 468 471 r.w. Section 109 of the IPC and Section 13(2) r.w. Section 13(1)(d) of the Prevention of Corruption Act, 1988 - Held that:- He cannot be charged for the offence under Sections 420 and 109 of IPC along with other conspirators without proper and acceptable link between them 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 – court followed the judgement of Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra & Ors. (1983 (10) TMI 225 - SUPREME COURT) - At the most he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence - the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud - there was no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and to give legal opinion. The allegation against him is that he gave false legal opinion in respect of 10 housing loans. It has been specifically alleged in the charge sheet that the respondent herein (A-6) and Mr. K.C. Ramdas (A-7)-the valuer have failed to point out the actual ownership of the properties and to bring out the ownership details and name of the apartments in their reports and also the falsity in the permissions for construction issued by the Municipal Authorities. (c) Being aggrieved, the respondent herein (A-6) filed a petition being Criminal Petition No. 2347 of 2008 under Section 482 of the Code before the High Court of Andhra Pradesh at Hyderabad for quashing of the criminal proceedings in CC No. 44 of 2007 on the file of the Special Judge for CBI Cases, Hyderabad. By impugned judgment and order dated 09.07.2010, the High Court quashed the proceedings insofar as the respondent herein (A-6) is concerned. (d) Being aggrieved, the CBI, Hyderabad filed this appeal by way of special leave. 4) Heard Mr. H.P. Raval, learned Additional Solicitor General for the appellant-CBI and Mr. R. Venkataramani, learned senior counsel for the respondent (A-6). 5) After t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the property and failed to bring out the ownership details and name of the apartments in their reports. They have also failed to point out the falsehood in the construction permission issued by the municipal authorities. Para 28: Investigation revealed that the municipal permissions submitted to the bank were also fake. Para 29: Expert of Finger Print Bureau confirmed that the thumb impressions available on the questioned 22 title deeds pertain to A-3, A-4 and A-5. Para 30: The above facts disclose that Sri P. Radha Gopal Reddy (A-1) and Sri M. Udaya Sankar (A-2) entered into criminal conspirary with A- 3 and abused their official position as public servants by violating the bank norms and in the process caused wrongful gain to A-3 to the extent of Rs.1,00,68,050/- and corresponding wrongful loss to the bank in sanctioning 22 housing loans. Sri P.Y. Kondal Rao(A-3) registered false sale deeds in favour of borrowers using impostors as site owners, produced false municipal permissions and cheated the bank in getting the housing loans. He is liable for conspiracy, cheating, forgery for the purpose of cheating and for using forged documents as genuine. Sri B. Ramanaji Rao(A-4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing , as enjoined by Section 227. If, on the other hand, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused , as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words not sufficient ground for proceeding against the accused clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R and held that it is settled principle of law that at the stage of quashing an FIR or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. By noting the principles laid down in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held that an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 14) In Mahavir Prashad Gupta and Another vs. State of National Capital Territory of Delhi and Others, (2000) 8 SCC 115, this Court considered the jurisdiction of the High Court under Section 482 of the Code and held as under: 5. The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definite stand of the respondent herein that he has rendered Legal Scrutiny Reports in all the cases after perusing the documents submitted by the Bank. It is also his claim that rendition of legal opinion cannot be construed as an offence. He further pointed out that it is not possible for the panel advocate to investigate the genuineness of the documents and in the present case, he only perused the contents and concluded whether the title was conveyed through a document or not. It is also brought to our notice that LW-5 (Listed Witness), who is the Law Officer of Vijaya Bank, has given a statement regarding flaw in respect of title of several properties. It is the claim of the respondent that in his statement, LW-5 has not even made a single comment as to the veracity of the legal opinion rendered by the respondent herein. In other words, it is the claim of the respondent that none of the witnesses have spoken to any overt act on his part or his involvement in the alleged conspiracy. Learned senior counsel for the respondent has also pointed out that out of 78 witnesses no one has made any relevant comment or statement about the alleged involvement of the respondent herein i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nga Reddy Dist. Hyderabad and bounded by: FLAT BOUNDARIES: LAND BOUNDARIES NORTH: Flat No. F-6 SOUTH: Open to sky EAST : Corridor Stair Case WEST : Open to sky 20-0 Wide Road, Sy No. 86 Sy. Nos. 76 and 78 open to sky. 4. Brief History of the Property and How the owner/Mortgagor has derived title: The Pahains for the years 1972-73 and 1978-79 under document No. 1 reveals that Sri. Venkat Naraari Rao is the pattadar and possessor of the land admeasuring Ac. 1-31 guntas in Sy No. 84 and Ac. 1-22 guntas in Sy No. 85 of Malkajgiri, Hyderabad. The document No. 2 shows that Sri. PV Narahari Rao was expired on 23.01.1980 as per the Death Certificate issued by MCH. The document No 3 shows that Smt. Saraswathi Bai is only the legal heir of Late Shri PV Narahari Rao. The document No. 4 shows that Smt. Saraswathi Bai executed a GPA in favour of Sri. CV Prasad Rao, empowering him to deal and sell the above said property. The GPA was registered in the office of sub- Registrar of Hyderabad-East vide document No. 58/80 dated 24.04.1980. The document No. 5 shows that Smt. Saraswathi Bai sold the Plot Nos. 3, 4 and 5 admeasuring 870 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 19.09.1980 referred document No. 5 of this opinion. He can convey a valid clear marketable title in favour of Shri BAVK Mohan Rao (applicant) in respect of the schedule property (referred under Item No. 3 of this opinion) by duly executing a Regd. Sale Deed in his favour. Shri BAVK Mohan Rao (applicant) can create a valid equitable mortgage with the Bank by depositing the original Regd. Sale deed executed in his by the vendors and also depositing all the documents as mentioned in the list in Item No. 2 of this opinion. I further certify that:- 1. There are no prior mortgage/charge whatsoever as could be seen from the encumbrance certificate for the period from 28.06.1980 to 20.04.2003 pertaining to the immovable property covered by the above title deed(s). Yes 2. There are prior mortgages/charges to the extent, which are liable to be cleared or satisfied by complying with the following. NA 3. There are claims from minors and his/her/their interest in the property to the extent of (specify) the share of minor(s) with name NA 4. There are claims from minors and his/her/their interest in the propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence at all. Section 120A defines criminal conspiracy which reads thus: 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. Section 120B speaks about punishment of criminal conspiracy. While considering the definition of criminal conspiracy, it is relevant to refer Sections 34 and 35 of IPC which are as under: 34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. 35. When such an act is criminal by reason of its being done with a cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oined hands with A-1 to A-3 for giving false opinion. In the absence of direct material, he cannot be implicated as one of the conspirators of the offence punishable under Section 420 read with Section 109 of IPC. The High Court has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him. Though as pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether any prima facie material available against the person who has charged with an offence under Section 420 read with Section 109 of IPC. In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills. 23) A lawyer does not tell his client that he shall win the case in all circumstances. Likewise a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less ..... X X X X Extracts X X X X X X X X Extracts X X X X
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