Sunday, 15 November 2015

When Advocate shall be liable for prosecution U/S 420 of IPC?

In Pandurang Dattatraya Khandekar vs. Bar
Council of Maharashtra & Ors. (1984) 2 SCC 556,
this Court held that “…
“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.”
 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.”
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 102 of 2012


RAMESHBHAI VALLABHBHAI KORAT....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)

CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI
Date : 24/07/2014
Citation; 2015(3) Crimes 524 GUJ

1. Rameshbhai Vallabhbhai Korat – petitioner herein – is a
practicing advocate at Surat. He has issued one title
clearance certificate in respect of Revenue Survey No.598 of
village Adajan. The said title clearance certificate said to be
erroneous or to be precise, false. The petitioner is facing
criminal prosecution for offence under Sections, 465, 467,
468, 471, 120-B r/w Section 34 of IPC for that. The present
petition is filed praying to quash the said prosecution.
2. Heard learned advocate Mr.Tolia for the petitioner.
3. Rule. Learned APP Mr.K.P.Raval waives service of notice
of Rule on behalf of respondent No.1 – State. Respondent
No.2, though duly served, has chosen not to appear.
4. Few relevant facts are, thus;
One Vallabhbhai Nanjibhai Savani had approached the
present petitioner with a request to give title clearance report
in respect of above-referred land i.e. Revenue Survey No.598
of village Adajan, District – Surat. The said property is also
known as Town Planning Scheme No.10, Final Plot No.27. The
petitioner has said to have examined the revenue record,
history of the property and has also made inspection at the
office of Sub-Registrar, Surat. Upon examining the material,
petitioner had opined that land in question stood in the name
of (i) Sunilkumar Hiralal (ii) Prakashkumar Hiralal (iii)
Dahiben wd/o Hiralal Govindji (iv) Ilaben Hiralal and (v)
Daxaben Hiralal. He has also given opinion that property in
question does not have any lien, right or any charge nor there

is any easementary right over the said property. He stated in
his opinion that the property has a marketable title. The said
opinion was given on 21.2.2005.
The present complaint is lodged on 26.5.2005 at Rander
Police Station as I-C.R.No.175 of 2005. The complainant is
one of the sub-plot holder, who has said to have purchased the
land from the original land owner. The details of the
complaint in order to consider the grievance of the
complainant when read, it does not inspire confidence. For
the purpose of present discussion, it is not necessary to go
into the detail of the complaint. It is the say of the
complainant that he had purchased the property by a
registered sale deed dated 5.8.2000 from the original owner.
5. Learned advocate Mr.Tolia for the petitioner, after
referring the facts of the case and drawing attention to title
clearance report issued by the present petitioner, has pointed
out that present complaint is the third complaint in succession
in respect of land in question. The first complaint was lodged
as I-C.R.No.168/2005 at Rander Police Station. Though the
petitioner was joined as an accused in the complaint, after
investigation the petitioner was dropped as an accused in the
charge-sheet. Copy of charge-sheet is on record. In the second
complaint i.e. I-C.R.No.264/2005, PI has filed a report in
favour of present petitioner. Said report is on record. Learned
advocate for the petitioner has also pointed out that on being
inquired by the police, Talati has written a letter to PI in
respect of land in question and has stated that land is an
agricultural land and NA Permission is not granted. That
being so, assertion of the complainant that he is a purchaser
of sub-plot from the original owner, losses the considerable

force. Learned advocate Mr.Tolia submitted that at best the
petitioner can be said to have acted negligently but, fastening
of criminal liability in the circumstances is clearly erroneous.
Neither the original owner of land nor Vallabhbhai Nanjibhai,
who had approached the petitioner for opinion, has come
forward to file the complaint. Learned advocate has drawn
attention to a decision of the Supreme Court in the case of
CBI, Hyderabad v. K. Narayana Rao, reported in (2012) 9
SCC 512. Relying on the same, it was submitted that present
petition may be allowed by quashing and setting aside the
FIR.
6. On the other hand, learned APP Mr.K.P.Raval, opposing
the present petition, has drawn attention to order passed by
the Magistrate rejecting the discharge application of the
petitioner. Said order was carried in Revision and the
Revisional Court was pleased to dismiss the Revision. It was
submitted that in view of the concurrent finding of two courts
below, this Court should not interfere either in exercise of
power under Articles 226 and 227 or under Section 482 of the
Cr.P.C. Learned APP also submitted that petitioner should be
asked to face the trial.
7. In K. Narayana Rao’s case (Supra), the respondent was
legal practitioner and panel advocate for Vijaya Bank. In
criminal case, he was joined as A6. As a panel advocate, his
duty was to verify the documents and to give legal opinion.
The allegation against him was that, he gave a false opinion in
respect of 10 housing loans. The respondent filed petition
under Section 482 of Cr.P.C. praying to quash the FIR. The
High Court was pleased to allow the petition. Hence, the CBI

filed appeal before the Supreme Court. There also, the charge
was for offence of forgery, cheating and criminal conspiracy.
The Supreme Court agrees with the High Court and dismissed
the CBI’s appeal. Important observations made in Para.27 to
31 read, thus;
“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 26 Page 27 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 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
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 vs. Bar
Council of Maharashtra & Ors. (1984) 2 SCC 556,
this Court held that “…
“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.
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 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.”
8. In the present case, first complaint was lodged by one

Baldevbhai. It is in respect of Final Plot No.28. The petitioner
is shown as A6 therein. As observed above, at the end of
investigation, police has not filed charge-sheet against the
present petitioner in respect of that complaint (Pg.-240).
Then, second complaint was lodged as I-C.R.No.264/2005. It is
lodged at Varachha Police Station. It is in respect of three
Final Plots of land in question i.e. Final Plot Nos.27, 28 and
29. Therein also, the present petitioner is shown as A6. In
respect of the said complaint, PI, Varachha Police Station has
addressed a letter to the Government Pleader stating that in
investigation, no evidence is found against the present
petitioner. It was submitted at the time of hearing that in
respect of this complaint, petitioner has filed anticipatory bail
application. However, at the time of hearing, it was disclosed
by the State that State is not interested in arresting the
present petitioner and on the said disclosure, bail application
was not pressed. Then, the 3rd complaint i.e. present
complaint is filed in respect of Plot No.27. It is the say of the
complainant that he owns one of the sub-plots. He has filed
the present complaint as the Baldevbhai i.e. complainant of
the first complaint has handed over to the complainant xerox
copy of the deed of power of attorney and title clearance
report etc. which is on record and it is also the say of the
complainant that notary advocate Shri Dhirubhai Rajkotiya
with the aid and assistance of one Shri Satishbhai Patel, who
is stated to be a petition writer and doing title deed work, has
executed the forged power of attorney. That in connivance,
they have forged the documents. Case against the petitioner is
only on account of giving title clearance report by him. It is
not in dispute that petitioner has not played any role in
preparing the power of attorney or other documents. So far as

preparing title clearance report is concerned, it is the say of
the petitioner that after verifying all relevant revenue entries
and after giving advertisement in the newspaper, he has given
the certificate. Neither examination of revenue entry nor
giving of advertisement in newspaper can be said to be
sufficient to ascertain the status of the property. It is also the
say of the petitioner that he has made inspection in subregistrar
office before giving his opinion. He says that he had
carried out inspection on 10.2.2005. His application for
inspection bears No.1501 and Receipt of payment of
inspection fees issued to him bears No.2890139. He says that
search of record of last 30 years was made.
9. Present case is covered up by K. Narayana’s case
(supra). As stated above, there is no case of prosecution
against the present petitioner. The only case is giving title
clearance report by the petitioner. The report given by the
petitioner turn out to be inaccurate. Petitioner ought to have
taken proper care. At worst, petitioner can be said to have
shown negligence. In the circumstances of the case, petitioner
cannot be held liable for forgery or cheating. It was pointed
out at the time of hearing that Dhirubhai Rajkotiya, who is
said to have prepared forged power of attorney, has moved for
discharge and the Sessions Court was pleased to allow the
Revision No.80 of 2009 of the said accused. Compared to said
Dhirubhai Rajkotiya, virtually, there is no case against the
present petitioner. That being so, submission of learned APP
Mr.Raval that in view of rejection of discharge application,
this Court should not interfere is not possible to accept.
10. In view of above discussion, present petition succeeds.

The Complaint being I-C.R.No.175 of 2005 registered with
Rander Police Station, Surat is hereby quashed and set-aside
qua the present petitioner. Rule is made absolute. Direct
service is permitted.
11. However, it is clarified that complaint and further
proceedings may proceed in accordance with law so far as
other accused are concerned.
(R.D.KOTHARI, J.)

Print Page

No comments:

Post a Comment