Chh HC | An advocate cannot be held criminally liable merely because his opinion is found not acceptable or for want of greater professional competence

Chhattisgarh High Court: Sanjay K. Agarwal, J., quashed the criminal proceedings against the petitioner, an Advocate, who was arraigned in a criminal case registered under Sections 420, 467, 468, 471 and 120-B IPC.

The petitioner, an Advocate empanelled with the Dena Bank, had provided a non-encumbrance certificate regarding the property of 10 borrowers who had applied for a loan with the Bank under the Kisan Credit Card Scheme. The loan was granted to the said 10 borrowers, who, however, failed to repay the loan. Upon enquiry, it was revealed that the documents submitted by the borrowers were found to be false and fabricated. Consequently, the FIR was registered by the Bank against the said 10 borrowers. However, subsequently, the petitioner was also arraigned as an accused, alleging that she has given a non-encumbrance certificate of legal scrutiny and she had certified documents concerned and, thereby, she had also committed the offence. The petitioner challenged the validity and correctness of the chargesheet.

The High Court, after perusing the record and discussing the law on point, observed: “It is well-settled law that extending of a legal opinion for granting loan has become an integral component of an advocate’s work in banking sector. 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 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.”

Reliance was also placed on the decision in CBI v. K. Narayana Rao, (2012) 9 SCC 512, wherein the Supreme Court considered the question as to whether a legal professional can be rendered criminally liable for negligence or improper legal advise and held that the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.

In absence of any allegation against the petitioner as to her active participants in the scheme of defrauding the Bank, the Court was of the opinion that the criminal proceedings against her were liable to be quashed Order were made accordingly. [Subha Jakkanwar v. State of Chhattisgarh, 2019 SCC OnLine Chh 136, decided on 26-11-2019]

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