Present: Mr. P.S.Hundal Sr.Advocate Vs. Cbi, New Delhi and anr. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1139178
CourtPunjab and Haryana High Court
Decided OnMay-01-2014
AppellantPresent: Mr. P.S.Hundal Sr.Advocate
RespondentCbi, New Delhi and anr.
Excerpt:
crm-m no.32804 of 2012 (o&m) -1- in the high court of punjab and haryana at chandigarh crm-m no.32804 of 2012 (o&m) date of decision: may 1, 2014 kulwant singh ...petitioner versus cbi, new delhi & anr. ...respondents coram: hon'ble mr. justice m. jeyapaul.1. whether the judgement should be reported in the digest?. yes 2. refer to the reporters. yes ---- present: mr. p.s.hundal, sr.advocate with mr. k.s.rekhi, advocae for the petitioner. mr. sumeet goel, advocate for respondent no.1-cbi. mr. rajesh mahajan, advocate for respondent no.2. m. jeyapaul, j.crm-m-11243-2014 1. the application is allowed permitting the petitioner to place on record the certified copies of the encumbrance certificates attached as annexure p-7 and p-8 in the interest of justice. crm-m-32804-2012 2. the petition is filed invoking the provision under section 482 cr.p.c. for quashing fir no.rc no.1(e)/2008 dated 17.5.2008, under sections 120-b, 420, 467, 468, 471 ipc and section 13(2) read with section 13(1)(d) of the prevention of corruption act, 1988 police station cbi, gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -2- eow-1, new delhi and all subsequent proceedings arising therefrom.3. the allegation is that accused raja singh, amit singh, amarjit singh rataul, montu, inderbir singh walia, kulwant singh, advocate (the petitioner herein) having hatched a criminal conspiracy with accused p.r.bhatkar (retired public servant) and b.ranjan (public servant) cheated and defrauded canara bank, d.s.market branch, amritsar by availing cash limit on the basis of false affidavits, false balance sheets, false verification report of sale deeds and inflated valuation reports and also by misrepresentation of facts and thus caused wrongful loss to the bank and wrongful gain to the abovesaid persons to the extent of `138.27 lacs during the year 2003-05.4. the charge-sheet filed by the investigating official would disclose that verification of the title deeds of the property was carried out by kulwant singh, advocate. he submitted his report dated 6.3.2003 stating therein that he had inspected the records of the office of sub registrar, amritsar relating to the subject property for the last 13 years and found no encumbrance or charge on the said property. the said property was registered by swaran singh in favour of mukhtar singh and others by way of sale deed dated 14.11.1996 which was duly recorded in the office of sub registrar. petitioner kulwant singh, advocate failed to inspect the records in the office of sub registrar, amritsar and submitted a false report. in the charge-sheet it has been further stated that the investigation revealed that verification of the title deeds of the subject properties was carried out by kulwant singh, advocate who submitted a report on 1.4.2003 stating gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -3- therein that montu had clear title over the properties. he also mentioned that he had inspected the records of the office of sub registrar, amritsar relating to the subject properties for the last 13 years and found no encumbrance or charge on the properties.5. the criminal prosecution initiated as against petitioner kulwant singh who is an advocate by profession is challenged on the ground that no case was made out as against the petitioner who had rendered professional advice after verifying the documents. it is further contended that no material was collected by the investigating agency to show that the petitioner in connivance with others defrauded the bank. therefore, it is submitted that the prosecution laid as against the petitioner who rendered legal advice may be relieved of the charges.6. learned counsel appearing for the cbi referring to the opinions given by petitioner kulwant singh would submit that kulwant singh had given an opinion without even verifying the index register and other relevant documents in the office of sub registrar, amritsar. whereas, he has categorically stated in the first information report that he did verify those registers and found that there was no encumbrance or charge on the said properties. in the opinion found appended as annexure p-5, the petitioner has given his opinion under the heading certificate of encumbrance as follows:- “iv. certificate of encrumbrance:- it is further clear from the certificate of encumbrance that the property fully mentioned in the certificate is free from gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -4- all types of encumbrance or charges. the said certificate has been issued by the sub registrar, amritsar after making the search from the index register and other relevant record maintained in his office for the period from 1.4.1985 to 2.3.2003. i have also inspected the index register and other relevant record for the last 13 years duly maintained in the office of sub registrar, amritsar and found no encumbrance or charge on the above said property.”. 7. in the certificate relating to yet another property, the petitioner kulwant singh has given his opinion found appended as annexure p-6 under the heading certificate of encumbrance as follows:- “iv. certificate of encrumbrance:- it is further clear from the certificate of encumbrance that the property fully mentioned in the certificate is free from all types of encumbrance or charges. the said certificate has been issued by the sub registrar, amritsar after making the search from the index register and other relevant record maintained in his office for the period from 1.4.1985 to 30.3.2003. i have also inspected the index register and other relevant record for the last 13 years duly maintained in the office of sub registrar, amritsar and found no encumbrance or charge on the above said property.”. 8. it is true that the petitioner has stated in his opinion that he verified the index register and other relevant records maintained in the gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -5- office of sub registrar, amritsar for 13 long years and found no encumbrance or charge on the aforesaid properties.9. the question that arises for consideration is whether an advocate who has rendered legal advice based on verification of certain documents produced before him and certain documents maintained by the sub registrar can be implicated in a criminal case despite the fact that a totally different scenario has emerged on reverification of the aforesaid documents by the investigating official.10. firstly, i find that there is no reference to the role of the petitioner in the first information report lodged by complainant. the role of the petitioner had not even distantly attributed in the first information report. for giving opinion based on verification of certain documents produced before him an advocate cannot at all be implicated in a criminal case. but in the instant case, the petitioner has stated in his opinion that he verified the index register and other relevant records maintained by sub registrar office, amritsar for 13 years and found that there was no encumbrance or charge on the properties concerned. even assuming for the sake of argument that there had been some negligence on the part of the advocate in physical verification of the index register and other relevant documents maintained by the sub registrar, such negligence cannot be visited with criminal prosecution.11. in the instant case, the petitioner has demonstrated by producing the certificate of encumbrance submitted by the sub registrar himself to the bank at the time of extending loan facility that the sub gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -6- registrar, amritsar was also of the view that there was no encumbrance during the relevant period on the said properties. those certificates of encumbrance appended as annexures p-7 and p-8 produced by the sub registrar, amritsar to the bank officials before ever the loan was disbursed were completely suppressed both by the bank officials and also by the respondent-cbi while filing the charge-sheet as against the petitioner. those documents produced by the sub registrar would fortify the opinion given by the petitioner that there was no encumbrance on the properties in question at the time when the petitioner-advocate made an inspection of the index register and other documents maintained by the sub registrar, amritsar. it is not out of place to refer to the fact that the sub registrar who issued those two certificates was not at all implicated in the present case. no material has been collected by the investigating agency that the petitioner-advocate hatched a criminal conspiracy with other accused to defraud the bank.12. the hon'ble supreme court in central bureau of investigation, hyderabad vs. k.narayana rao, 2012(4) rcr (criminal) 601 has held as follows:-“21. in the earlier part of our order, first we have noted that the respondent was not named in the fir and then we extracted the relevant portions from the charge-sheet about his alleged role. though statements of several witnesses have been enclosed along with the charge-sheet, they speak volumes about others. however, there is no specific reference to the gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -7- role of the present respondent along with the main conspirators.22. xxxxxxxxxxxxxxx 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 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 practicing 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.24. xxxxxxxxxxxxxx 25. xxxxxxxxxxxxxx 26. therefore, the liability against an opining advocate arises only when he lawyer was an active participant in a plan gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -8- to defraud the bank. in the given case, there is no evidence to prove that a-6 was abetting or aiding the original conspirators.27. 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.”. 13. for the professional service rendered by the advocate, he cannot be mulcted with criminal liability. if an advocate traversed beyond the brief entrusted to him and conspired with the other accused in a given case to commit some offence, the advocate cannot take shelter under the legal profession he has embraced. mere professional negligence on the part of the advocate does not at all expose him to criminal liability. when there is no iota of evidence to show that the advocate who had rendered legal advice conspired with the other accused to commit an offence, the question of initiating criminal proceedings as against him does not at all arise. gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document crm-m no.32804 of 2012 (o&m) -9- 14. in the instant case, the petitioner has demonstrated that there was not even negligence on his part in the matter of verification of the index register and other relevant documents available with the sub registrar, amrtisar inasmuch as the latter had also filed encumbrance certificate to the bank to the effect that there was no encumbrance on the said properties for the relevant period.15. in view of the above, the entire criminal proceedings in fir no.rc no.1(e)/2008 dated 17.5.2008, under sections 120-b, 420, 467, 468, 471 ipc and section 13(2) read with section 13(1)(d) of the prevention of corruption act, 1988 police station cbi, eow-1, new delhi and consequential proceedings emanated therefrom stand quashed.16. petition is allowed. may 1, 2014 (m. jeyapaul) gulati judge gulati sumit 2014.05.05 16:30 i attest to the accuracy and integrity of this document
Judgment:

CRM-M No.32804 of 2012 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M No.32804 of 2012 (O&M) DATE OF DECISION: May 1, 2014 KULWANT SINGH ...PETITIONER VERSUS CBI, NEW DELHI & ANR. ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.

1. Whether the judgement should be reported in the digest?. Yes 2. Refer to the Reporters. Yes ---- PRESENT: MR. P.S.HUNDAL, SR.ADVOCATE WITH MR. K.S.REKHI, ADVOCAE FOR THE PETITIONER. MR. SUMEET GOEL, ADVOCATE FOR RESPONDENT NO.1-CBI. MR. RAJESH MAHAJAN, ADVOCATE FOR RESPONDENT NO.2. M. JEYAPAUL, J.

CRM-M-11243-2014 1. The application is allowed permitting the petitioner to place on record the certified copies of the Encumbrance Certificates attached as Annexure P-7 and P-8 in the interest of justice. CRM-M-32804-2012 2. The petition is filed invoking the provision under Section 482 Cr.P.C. for quashing FIR No.RC No.1(E)/2008 dated 17.5.2008, under Sections 120-B, 420, 467, 468, 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 Police Station CBI, Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -2- EOW-1, New Delhi and all subsequent proceedings arising therefrom.

3. The allegation is that accused Raja Singh, Amit Singh, Amarjit Singh Rataul, Montu, Inderbir Singh Walia, Kulwant Singh, Advocate (the petitioner herein) having hatched a criminal conspiracy with accused P.R.Bhatkar (retired public servant) and B.Ranjan (public servant) cheated and defrauded Canara Bank, D.S.Market Branch, Amritsar by availing cash limit on the basis of false affidavits, false balance sheets, false verification report of sale deeds and inflated valuation reports and also by misrepresentation of facts and thus caused wrongful loss to the Bank and wrongful gain to the abovesaid persons to the extent of `138.27 lacs during the year 2003-05.

4. The charge-sheet filed by the investigating official would disclose that verification of the title deeds of the property was carried out by Kulwant Singh, Advocate. He submitted his report dated 6.3.2003 stating therein that he had inspected the records of the office of Sub Registrar, Amritsar relating to the subject property for the last 13 years and found no encumbrance or charge on the said property. The said property was registered by Swaran Singh in favour of Mukhtar Singh and others by way of sale deed dated 14.11.1996 which was duly recorded in the office of Sub Registrar. Petitioner Kulwant Singh, Advocate failed to inspect the records in the office of Sub Registrar, Amritsar and submitted a false report. In the charge-sheet it has been further stated that the investigation revealed that verification of the title deeds of the subject properties was carried out by Kulwant Singh, Advocate who submitted a report on 1.4.2003 stating Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -3- therein that Montu had clear title over the properties. He also mentioned that he had inspected the records of the office of Sub Registrar, Amritsar relating to the subject properties for the last 13 years and found no encumbrance or charge on the properties.

5. The criminal prosecution initiated as against petitioner Kulwant Singh who is an Advocate by profession is challenged on the ground that no case was made out as against the petitioner who had rendered professional advice after verifying the documents. It is further contended that no material was collected by the investigating agency to show that the petitioner in connivance with others defrauded the Bank. Therefore, it is submitted that the prosecution laid as against the petitioner who rendered legal advice may be relieved of the charges.

6. Learned counsel appearing for the CBI referring to the opinions given by petitioner Kulwant Singh would submit that Kulwant Singh had given an opinion without even verifying the Index register and other relevant documents in the office of Sub Registrar, Amritsar. Whereas, he has categorically stated in the first information report that he did verify those registers and found that there was no encumbrance or charge on the said properties. In the opinion found appended as Annexure P-5, the petitioner has given his opinion under the heading Certificate of Encumbrance as follows:- “IV. CERTIFICATE OF ENCRUMBRANCE:- It is further clear from the Certificate of Encumbrance that the property fully mentioned in the certificate is free from Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -4- all types of encumbrance or charges. The said certificate has been issued by the Sub Registrar, Amritsar after making the search from the index register and other relevant record maintained in his office for the period from 1.4.1985 to 2.3.2003. I have also inspected the index register and other relevant record for the last 13 years duly maintained in the office of Sub Registrar, Amritsar and found no encumbrance or charge on the above said property.”. 7. In the certificate relating to yet another property, the petitioner Kulwant Singh has given his opinion found appended as Annexure P-6 under the heading Certificate of Encumbrance as follows:- “IV. CERTIFICATE OF ENCRUMBRANCE:- It is further clear from the Certificate of Encumbrance that the property fully mentioned in the certificate is free from all types of encumbrance or charges. The said certificate has been issued by the Sub Registrar, Amritsar after making the search from the index register and other relevant record maintained in his office for the period from 1.4.1985 to 30.3.2003. I have also inspected the index register and other relevant record for the last 13 years duly maintained in the office of Sub Registrar, Amritsar and found no encumbrance or charge on the above said property.”. 8. It is true that the petitioner has stated in his opinion that he verified the Index Register and other relevant records maintained in the Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -5- office of Sub Registrar, Amritsar for 13 long years and found no encumbrance or charge on the aforesaid properties.

9. The question that arises for consideration is whether an Advocate who has rendered legal advice based on verification of certain documents produced before him and certain documents maintained by the Sub Registrar can be implicated in a criminal case despite the fact that a totally different scenario has emerged on reverification of the aforesaid documents by the investigating official.

10. Firstly, I find that there is no reference to the role of the petitioner in the first information report lodged by complainant. The role of the petitioner had not even distantly attributed in the first information report. For giving opinion based on verification of certain documents produced before him an Advocate cannot at all be implicated in a criminal case. But in the instant case, the petitioner has stated in his opinion that he verified the Index Register and other relevant records maintained by Sub Registrar office, Amritsar for 13 years and found that there was no encumbrance or charge on the properties concerned. Even assuming for the sake of argument that there had been some negligence on the part of the Advocate in physical verification of the Index Register and other relevant documents maintained by the Sub Registrar, such negligence cannot be visited with criminal prosecution.

11. In the instant case, the petitioner has demonstrated by producing the Certificate of Encumbrance submitted by the Sub Registrar himself to the Bank at the time of extending loan facility that the Sub Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -6- Registrar, Amritsar was also of the view that there was no encumbrance during the relevant period on the said properties. Those Certificates of Encumbrance appended as Annexures P-7 and P-8 produced by the Sub Registrar, Amritsar to the bank officials before ever the loan was disbursed were completely suppressed both by the Bank officials and also by the respondent-CBI while filing the charge-sheet as against the petitioner. Those documents produced by the Sub Registrar would fortify the opinion given by the petitioner that there was no encumbrance on the properties in question at the time when the petitioner-Advocate made an inspection of the Index Register and other documents maintained by the Sub Registrar, Amritsar. It is not out of place to refer to the fact that the Sub Registrar who issued those two certificates was not at all implicated in the present case. No material has been collected by the investigating agency that the petitioner-Advocate hatched a criminal conspiracy with other accused to defraud the Bank.

12. The Hon'ble Supreme Court in Central Bureau of Investigation, Hyderabad vs. K.Narayana Rao, 2012(4) RCR (Criminal) 601 has held as follows:-

“21. In the earlier part of our order, first we have noted that the respondent was not named in the FIR and then we extracted the relevant portions from the charge-sheet about his alleged role. Though statements of several witnesses have been enclosed along with the charge-sheet, they speak volumes about others. However, there is no specific reference to the Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -7- role of the present respondent along with the main conspirators.

22. xxxxxxxxxxxxxxx 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 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 practicing 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.

24. xxxxxxxxxxxxxx 25. xxxxxxxxxxxxxx 26. Therefore, the liability against an opining advocate arises only when he lawyer was an active participant in a plan Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -8- to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.

27. 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.”. 13. For the professional service rendered by the Advocate, he cannot be mulcted with criminal liability. If an Advocate traversed beyond the brief entrusted to him and conspired with the other accused in a given case to commit some offence, the Advocate cannot take shelter under the legal profession he has embraced. Mere professional negligence on the part of the Advocate does not at all expose him to criminal liability. When there is no iota of evidence to show that the Advocate who had rendered legal advice conspired with the other accused to commit an offence, the question of initiating criminal proceedings as against him does not at all arise. Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document CRM-M No.32804 of 2012 (O&M) -9- 14. In the instant case, the petitioner has demonstrated that there was not even negligence on his part in the matter of verification of the Index Register and other relevant documents available with the Sub Registrar, Amrtisar inasmuch as the latter had also filed Encumbrance Certificate to the Bank to the effect that there was no encumbrance on the said properties for the relevant period.

15. In view of the above, the entire criminal proceedings in FIR No.RC No.1(E)/2008 dated 17.5.2008, under Sections 120-B, 420, 467, 468, 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 Police Station CBI, EOW-1, New Delhi and consequential proceedings emanated therefrom stand quashed.

16. Petition is allowed. May 1, 2014 (M. JEYAPAUL) Gulati JUDGE Gulati Sumit 2014.05.05 16:30 I attest to the accuracy and integrity of this document