No Active Connivance Between Him & Other Accused Persons Who Defrauded Bank: Chhattisgarh HC Quashes Cheating Case Against Empaneled Advocate of SBI

The petitioner had approached the High Court with a petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing a case registered under sections 420, 467, 468, 471 of Indian Penal Code, 1860 against him.

The Division Bench comprising Chief Justice Ramesh Sinha and Justice Amitendra Kishore Prasad held, “The petitioner would be 74 years of age as on date. Even it cannot be said that the petitioner has performed his duties in a negligent manner so as to cause financial loss to the respondent Bank.

Advocate Anshul Tiwari represented the Petitioner while Deputy Advocate General Shashank Thakur represented the Respondent.

The petitioner, a Senior Advocate practicing at District & Session Court, Bemetara for last more then 38 years, had been falsely implicated only on the ground that, being empaneled Advocate of the State Bank of India, he issued the requisite non-encumbrances certificate and certified qua the lands had by the borrower that they have clear, marketable title to the property free from all encumbrances against which the borrower was granted loan under the scheme of Kisan Credit Card.

An FIR of the incident was lodged in the year 2018 on the allegations that the main accused Hariram Chandrakar had borrowed the loan from the Bank under the Kisan Credit Card by playing fraud. It was alleged that Chandrakar applied for grant of loan under the Kisan Credit Card and mortgaged his agriculture land for the security of loan. Under the scheme of Kisan Credit Card for grant of loan the certificate, it was mandatory to show that the land which was sought to be mortgaged was free from all encumbrances and title of the said land was free.

It was alleged that the main accused was granted loan to the tune of Rs. 3 lakhs and the petitioner who was an empanelled Advocate of SBI had issued the non-encumbrance certificate and certified qua the lands held by the borrower that he had clear and marketable title to the property free from all encumbrances. It was further alleged that the borrower failed to repay the loan amount and upon the enquiry it was found that the borrower had no land at village Giddhawa and forged documents were filed by the borrower.

For the petitioner, Tiwari submitted that the charge sheet had been filed against the borrower as well as against the Branch Manager and subsequently the supplementary charge sheet was filed against the petitioner. Reliance was also placed upon the judgment of the Apex Court in CBI, Hyderabad 4 v. K. Narayana Rao, reported in (2012) 9 SCC 512 wherein it has been held that liability against an opining Advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.

After a perusal of the materials available on record, the Bench found 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 respondent-Bank.

“Furthermore, even till date, the petitioner has been retained by the respondent-Bank as their panel Advocate. Had he been negligent or untrustworthy, the respondent-Bank would certainly had removed him from their panel”, it said.

Reliance was also placed upon K. Narayana Rao Case (Supra) where it has been observed that merely because a lawyer's opinion may not be acceptable, he cannot be mulled with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators.

It was further noted by the Bench that the name of the petitioner had surfaced in the supplementary charge sheet as he was not named in the FIR. “As the prosecution has failed to establish its case that there was any active participation of the petitioner in causing loss to the respondent-Bank, this Court is of the opinion that the orders passed by the learned trial Court framing charge against the petitioner as well as rejection of the revision petition vide order dated 20.01.2021 deserves to be set aside qua the petitioner especially in light of the order of the Apex Court in K. Narayana Rao (supra)”, the Bench held.

Thus, allowing the petition, the Bench quashed the proceedings relating to the petitioner.

Cause Title: Ramkinkar Singh v. State Of Chhattisgarh [Neutral Citation- 2024:CGHC:44444-DB]

Appearance:

Petitioner: Advocate Anshul Tiwari

Respondents: Deputy Advocate General Shashank Thakur & Advocate P.R.Patankar

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