{"id":335619,"date":"2024-11-20T16:00:05","date_gmt":"2024-11-20T10:30:05","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=335619"},"modified":"2024-11-26T17:34:17","modified_gmt":"2024-11-26T12:04:17","slug":"financial-loss-caused-to-person-by-mere-advocates-opinion-cannot-be-ground-for-prosecuting-him-chc","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2024\/11\/20\/financial-loss-caused-to-person-by-mere-advocates-opinion-cannot-be-ground-for-prosecuting-him-chc\/","title":{"rendered":"Financial loss to a person\/institution by mere Advocate\u2019s opinion cannot be a ground for prosecuting him; intention to defraud and active participation required: Chhattisgarh HC"},"content":{"rendered":"
\n

Chhattisgarh High Court:<\/span> In a petition filed under Section 482<\/a>1<\/sup><\/a> of the Criminal Procedure Code, 1973<\/a> (‘CrPC’), the Division Bench of Ramesh Sinha, CJ<\/span> and Amitendra Kishore Prasad, J.<\/span>, stated that it could not be said that the petitioner had performed his duties in a negligent manner so as to cause financial loss to the respondent (‘Bank’). Further, even till date, the petitioner had been retained by the Bank as their panel Advocate. Had he been negligent or untrustworthy, the Bank would certainly have removed him from their panel. The Court stated that merely because an opinion given by an Advocate had caused financial loss to person \/ institution, that could not be a ground for prosecuting him. There had to be some evidence that the said act was done with sole intention to defraud the person\/institution and with active participation along with other conspirators.<\/p>\n

Thus, the Court quashed the order dated 20-01-2021, passed by the Additional Sessions Judge, Bemetara, and the order dated 07-12-2019 passed by the Judicial Magistrate First Class, Bemetara and all the consequential proceedings related to the petitioner.<\/p>\n

Background<\/h3>\n

The petitioner was a Senior Advocate practicing at District and Session Court, Bemetara for the last more than 38 years. The petitioner had falsely been implicated on the ground that, being an empanelled Advocate of the State Bank of India, he issued the requisite non-encumbrances certificate with respect to the land held by the borrower that they had clear, marketable title to the property free from all encumbrances against which the borrower had applied for loan. Accordingly, the petitioner was granted loan under the scheme of Kisan Credit Card.<\/p>\n

Thereafter, on 02-08-2018, a FIR of the incident was filed by the Branch Manager of SBI Chhiraha, against the borrower. The FIR alleged that the, the borrower had borrowed the loan from the Bank under the Kisan Credit Card by playing fraud. It was alleged that the borrower was resident of Gram Panchayat, Gidhhwa. The borrower had applied for grant of loan under the Kisan Credit Card and had mortgage his agriculture land for the security of loan. Under the scheme of Kisan Credit Card for grant of loan, it was required that the mortgage was free from all encumbrances and title of the said land was free. Thereafter, the borrower was granted loan to the tune of Rs. 3 lakhs.<\/p>\n

It was alleged that the petitioner, an empanelled Advocate of SBI had issued the non-encumbrance certificate with respect to the lands held by the borrower that he had clear and marketable title to the property free from all encumbrances and against which the borrower had applied for the loan and has granted loan under the scheme. It was further alleged that the borrower had failed to repay the loan amount and upon the enquiry it was found that the borrower had no land at Giddhawa village, and the documents filed by the borrower, pertained to the mortgage land were found to be forged. On 02-08-2012, the notice to repay the loan was issued. The FIR was lodged on the allegations that Hariram Chandrakar has secured the loan by playing fraud.<\/p>\n

Analysis, Law, and Decision<\/h3>\n

The Court observed that the allegations against the petitioner was that being an Advocate, he had given the search report based on which loan was disbursed and later it was found that the same was disbursed to a person who was not having the property which was mortgaged in his own name.<\/p>\n

The Court stated that from perusal of the materials available on record, it transpired that the petitioner had only given a search report and there was nothing on record to hold that there was active connivance between the petitioner and other co-accused persons who had defrauded the Bank. The Court stated that the petitioner would be 74 years of age as on date, and even then, it could not be said that the petitioner had performed his duties in a negligent manner to cause financial loss to the Bank. Further, even till date, the petitioner had been retained by the Bank as their panel Advocate. Had he been negligent or untrustworthy, the Bank would certainly have removed him from their panel.<\/p>\n

The Court stated that merely because an opinion given by an Advocate had caused financial loss to person \/ institution, that could not be a ground for prosecuting him. There had to be some evidence that the said act was done with sole intention to defraud the person\/institution and with active participation along with other conspirators.<\/p>\n

Thus, the Court quashed the order dated 20-01-2021, passed by the Additional Sessions Judge, Bemetara, and the order dated 07-12-2019 passed by the Judicial Magistrate First Class, Bemetara and all the consequential proceedings related to the petitioner.<\/p>\n

[Ramkinkar Singh v. State of Chhattisgarh, 2024 SCC OnLine Chh 11802<\/a>, decided on 14-11-2024<\/span>]<\/p>\n\n

Advocates who appeared in this case:<\/p>\n

For the Petitioner:<\/span> Anshul Tiwari, Advocate.<\/p>\n

For the Respondents:<\/span> Shashank Thakur, Deputy Advocate General; P.R. Patankar, Advocate.<\/p>\n<\/div>\n\n

1.<\/a> Section 528<\/a> of Nagarik Suraksha Sanhita, 2023<\/a><\/p>\n

Buy Code of Criminal Procedure, 1973  HERE<\/a><\/h3>\n

\"Code<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

The allegation against the petitioner is that being an Advocate, he has given the search report based on which loan was disbursed and later it was found that the loan was disbursed to a person who did not even have property which was mortgaged in his 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