Justice Altamas Kabir takes oath as 39th CJI

 Justice Altamas Kabir took oath on Saturday as the 39th Chief Justice of India(CJI) signaling a change of guard that many expect to lower the barriers that hindered interaction among higher judiciary during the 16-month tenure of his predecessor Justice SH Kapadia. 

As CJI, Justice Kabir has less than a year as he retires on July 18, 2013. But many hope that he could utilize the brief tenure to making judiciary more litigant-friendly: perhaps not an unreasonable expectation, considering CJI's amiability. His experience as chairman of National Legal Aid Services Authority, which devises practices to make justice accessible to the poor, could help. 

His amiability helped Justice Kabir deal with situations where the litigants became unruly and went on to berate judiciary for corruption in its ranks. 

His ancestors came from an affluent Bengali Muslim family in Faridpur, now in Bangladesh. Although his father Jehangir Kabir was also influential in Bengal politics, the clan was made famous more by his uncle, Humanyun Kabir, a renowned academic. 

His branch of the clan chose to migrate to India after the partition in 1947. Justice Kabir, who was born on July 19, 1948, is known for his patience: a trait which helps him engage better with lawyers and litigant. 

As a lawyer, he practiced law, beginning 1973, in district courts and, then, in Calcutta High Court. He became a Judge of Calcutta HC on August 6, 1990. 

In March, 2005, Justice Kabir became Chief Justice of  Jharkhand HC. Six months later, he was appointed a Judge of the Supreme Court. Justice Kabir's wife Minna is a child right activist and their two children, too, have studied law. 

But, there are many challenges before the new CJI. Most of the problems are the ones which have accumulated over the years. If a huge pendency of around three crore cases stunts the justice delivery system's efficiency, there are large number of vacancies in the HCs allowing that pendency to grow steadily. The Allahabad HC needs urgent attention as it is functioning with only 50% of the sanctioned judge strength.

PONNUSAMY v. STATE OF T.NADU REP.BY INSP.OF POLICE [2012] EssenSC 539 (20 September 2012)

Judgement 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1593 OF 2007 

Ponnusamy ..........................Appellant 

Versus 

The State of Tamil Nadu Rep. by its Inspector of Police ...............Respondent

 

RANJAN GOGOI, J.

This appeal is directed against the judgment and order dated 27.10.2006 passed by the High Court of Madras whereby the conviction of the accused-appellant under sections 302, 304 (Part II) and 307 of the Indian Penal Code and the sentences imposed by the learned Trial Court have been affirmed.

The relevant facts

2. The case of the prosecution, in short, is that one Sekhar (deceased No.2) was running a Saw Mill, taken on lease, in which business he was assisted by his brothers Radhakrishnan (deceased No.1) and Rajendran (PW 2). The second accused, Munuswamy, who used to work in the Saw Mill was taken to task by Sekhar for unauthorized sale of some timber from the Saw Mill. The said incident happened on 3.10.2003. According to the prosecution, accused Munuswamy left the place threatening revenge and on 5.10.2003 he came to the house of Sekhar alongwith Ponnusamy (accused No.1) Mailraj (accused No.3) and Madavan (accused No.4).

3. On 5.10.2003 at about 10.00 A.M. the deceased Sekhar had come out of the Saw Mill to go to his house for coffee. His house was just opposite the saw mill. At that time accused Ponnuswamy assaulted Sekhar with his slippers and instigated the other accused to assault him. It is the prosecution case that, on such instigation, accused No. 3 assaulted Sekhar on his head with a stick; the accused No. 4 assaulted the deceased on his forehead with a brick whereas the first accused stabbed the deceased with a knife. The prosecution has further alleged that on seeing Sekhar being assaulted, Radhakrishnan (deceased No.2) came running whereafter, the second accused caught hold of him and the first accused Ponnusamy stabbed him on his back with the knife. Similar assault on PW 2 and PW 3, who had also come to the spot, was committed by the first accused Ponnusamy with the knife. According to the prosecution all the injured persons were profusely bleeding and the accused had fled away from the place.

Thereafter, the injured persons were brought to the Government Hospital at Thanjayur. On examination, Radhakrishnan was pronounced dead and Sekhar was admitted in the hospital with injuries alongwith PWs 2 and 3.

Prosecution had also claimed that at about 3 p.m. of the same day, i.e 05.10.2003 a telephonic information with regard to the incident was conveyed by the police outpost in the Government Hospital at Thanjayur which was received by PW 16 at the Needamangalam Police Station. The said information, according to the prosecution, was entered in the general diary of the police station and brought to the notice of PW 20, Sivagananavelu, Inspector of Police. Thereafter PW 20 reached the hospital at about 4-4.30 p.m. and recorded the statement of Sekhar (Exh.P.37) on the basis of which the FIR (Exh.P.38) was lodged. A requisition was sent to PW 15 (Judicial Magistrate) to record the statements of Sekhar and PW 2 Rajendran and PW 3 Nagaraj in the Government Hospital at Thanjayur. Accordingly, the aforesaid statements were recorded which were subsequently marked as Exh.P.22 and P.23 (dying declaration of deceased Sekhar), Exh.24 and Exh. 25 (statement of PW 3 Nagaraja) and Exh.26 and Exh. 27 (Statement of PW 2 Rajendran). The prosecution had also claimed that after registration of the FIR at about 6.30 p.m., PW 20 commenced his investigation by visiting the place of occurrence at about 7.45 pm in the course of which he prepared a sketch;

collected samples of blood stained earth and sample earth and had also recorded the statements of persons acquainted with the offence under the provisions of section 161 of Code of Criminal Procedure, 1973 including the statements of Sekhar (deceased No.1), PW 2 Rajendran and PW 3 Nagaraj.

4. According to the prosecution, on 05.10.2003 itself Sekhar (deceased) , PW 2 and PW 3 were examined by PW 11 Dr. Balasubramanian who was then working as a Casualty Medical Officer in the Government Hospital at Thanjayur. The injuries sustained by the aforesaid persons were recorded in the Accident Register maintained by the Hospital. On the same day Radhakrishnan was also brought before him but by that time he was already dead. Post-mortem of the deceased Radhakrishnan was performed by PW 14 Dr.

Vijayalakshmi on the next day, i.e, 06.10.2003. It is also the prosecution case that in the course of investigation the first accused Ponnusamy has made a statement on the basis of which certain recoveries were made including the recovery of a knife which was seized by Seizure List (Exh.P.8 and subsequently exhibited in the trial as material object No.3).

Thereafter, at the conclusion of the investigation charge sheet was filed against all the four accused persons under section 302, 304 and 307 of the IPC. The accused persons were tried in the Court of the Learned Sessions Judge, Nagapattinam and each one of them was found guilty of the offences alleged. Aggrieved, the accused persons had filed an appeal before the High Court of Madras. The High Court by its judgment and order dated 27.10.2006 while maintaining the conviction of the accused-appellant (first accused before the learned trial court) and the sentences imposed, has set aside the conviction and sentence imposed upon the other accused. Aggrieved, the present appeal has been filed by the first accused, Ponnuswamy (hereinafter referred to as ‘the accused – appellant’ ).

5. We have heard Shri V. Kanagaraj, learned senior counsel for the appellant and Shri B. Balaji, learned counsel appearing for the State.

6. The learned counsel appearing for the appellant has argued that though PW 1, who is the wife of the deceased Sekhar, was examined as an eye witness to the incident she was disbelieved, and rightly, by the High Court. According to the learned counsel the fact that the deceased Sekhar had not mentioned PW 1 as one of the persons present at the place of occurrence though he had clearly mentioned others who were allegedly present would raise a serious doubt with regard to presence of PW 1 at the place of the crime. In so far as PW 2 and PW 3 are concerned, learned counsel has submitted that though in their depositions the said witnesses had named the accused –appellant as the person who had stabbed both the deceased and also PWs 2 and 3, in the statements of the deceased Sekhar and injured PW 3 Nagaraju recorded by the Judicial Magistrate (PW 15) i.e. Exhs. 22-23 and 24-25, the description of the accused-appellant is either by his appearance (short and stout) or by his relationship with the second accused, Munuswamy and not by his name. The aforesaid lacuna, according to the learned counsel, would go to show that neither PW 2 nor PW 3 had identified the accused-appellant to be the person who has caused the stab injuries. It is submitted that PW 4 and 5 were declared hostile and that PW 6, once again, had not named the accused-appellant as the person responsible for the crime but had referred to a short and stout person who had caused the stab injuries. Learned counsel has, therefore, submitted that none of the eye witnesses who were examined by the prosecution are worthy of credence. It has been further contended that Exh.37, i.e. the statement of deceased Sekhar recorded by PW 20, which is the first version of the occurrence, suffers from a serious lacuna affecting its credibility.

Learned counsel has pointed out that PW 20 claims to have reached the Hospital at about 4-4.30 p.m. and to have recorded Exh.P.37 at about 4.30 p.m. On the other hand, according to PW 15, i.e. the Judicial Magistrate, he had gone to Ward No. 15 at about 4 p.m. to record the statements of deceased Sekhar and PW 2 and PW 3. He was informed by the staff that the patients had been taken to the operation theatre. Thereafter PW 15 proceeded to the operation theatre where he found PW 2 and PW 3 in the waiting room. Accordingly, the statements of PW 2 and PW 3 were recorded.

However, according to PW 15, as the deceased Sekhar was inside the operation theatre undergoing surgery his statement could not be recorded for which reason PW 15 had to come back to the hospital once again at about 9.30 p.m. and it was at that point of time that the statement of the deceased (Ex. P.22 and 23) was recorded. Learned counsel has pointed out that the two versions given by the prosecution witnesses with regard to the availability of the deceased Sekhar for recording of his statement throws considerable doubt as to whether PW 20 had actually recorded the statement of the deceased Sekhar at 4.30 p.m., particularly, when the said statement (Exh.P.37) was not recorded in the presence of any other person including the Doctor on duty. In the aforesaid circumstances, according to learned counsel, Exh.37 is not credit worthy so as to constitute a sound and safe basis to determine the culpability of the accused-appellant. Pointing out the statements of PW 2 and PW 3 (Exh. 24 & 25; 26 and 27) learned counsel has pointed out that the said statements do not implicate the accused- appellant herein, in any manner whatsoever. Even the dying declaration of the deceased Sekhar (Exh.22 & 23) does not refer to the accused-appellant by name but describes the culprit as the short and stocky co-brother of accused Munuswamy (acquitted accused No.2). In these circumstances, according to learned counsel, the involvement of the accused-appellant in the crime alleged has not been proved beyond all reasonable doubt so as to warrant his conviction under Section 302 of the Indian Penal Code.

7. In reply, Shri Balaji, learned counsel for the respondent, has contended that even if the evidence of PW 1 is to be discarded, there is no reason why the evidence tendered by PW 2 and PW 3 should not receive the due consideration of the Court. Learned counsel has submitted that the evidence tendered by PW 2 and PW 3 contains a vivid account of the events that had occurred including the role played by each of the accused in the crime. It is also pointed out that the identity of the accused, including the accused-appellant, had not been an issue at any stage of the trial. The omission of the name of the accused-appellant in the statement of PW 3 recorded by the learned Judicial Magistrate (Ex.26 and 27) and in the Dying Declaration of deceased Sekhar (Ex. P.22-23) is of no consequence. At no point of time the defence had asserted that the identity of the accused- appellant was in doubt. It is further pointed out by the learned counsel for the State that though PW 4 had been declared hostile, the said witness had admitted that all the four accused had assembled in front of the Saw Mill of the deceased Sekhar at the relevant time of the day of the occurrence. That apart, PW 6 had deposed that the accused-appellant who was was ‘short and stocky’, was seen by him stabbing PW 2 Rajendran, PW 3 Nagaraju and the deceased Radhakrishnan. The evidence of PW 6 with regard to the physical description of the accused-appellant corroborates the description of the accused as narrated in the dying declaration of deceased Sekhar, it is contended.

8. We have carefully considered the rival contentions advanced on behalf of the parties. We have also perused the evidence and other materials on record. The incident occurred at about 10 a.m. on 5.10.2003 in front of the Saw Mill of the deceased Sekhar. From the evidence on record it is clear that the house of the deceased was just across the Saw Mill and the incident occurred when the deceased was going for coffee to his house.

Having regard to the place where the occurrence took place, the presence of PW 1, who is the wife of the deceased Sekhar was, but, natural. Merely because her name was not mentioned by the deceased in his statement (Exh.P.37), though the names of the others who were present were so mentioned, according to us, cannot be a reasonable basis to conclude that PW 1 is not an eye witness to the occurrence. We are, therefore, inclined to take into account the evidence of PW 1 which, properly read, gives a graphic account of involvement of the accused-appellant in the crime in question and corroborates the evidence of PW 2 and PW 3, the other eye witnesses examined by the prosecution. In so far as the lacunae in the evidence of PW 2 and PW 3, as pointed out on behalf of the accused is concerned we are of the view that in a situation where the identity of the accused-appellant was not an issue raised by the defence the evidence of the said witnesses cannot be discarded merely because in their earlier statements, PW 2 and PW 3 had not specifically referred to the accused- appellant by his name. That apart, the part of the evidence of PW 4 which can acted upon by the Court lends a fair amount of support to the prosecution case, namely, that the accused-appellant along with the other acquitted accused had gathered at the place of occurrence at the relevant time of the day of occurrence. The testimony of PW 6 that he had seen the accused-appellant, who was short and stocky, stabbing PW 2 Rajendran, PW 3 Nagaraju and the deceased Radhakrishnan are additional pieces of evidence which gives credence to the prosecution case.

9. The alleged discrepancy in the prosecution evidence (PW 15 and PW 20) with regard to the availability of the deceased Sekar for recording of his statement at 4-4.30 p.m. of the day of occurrence, as pointed out by the learned counsel for the appellant, in our considered view, does not present any difficulty of resolution. The evidence on record shows that after the two deceased persons and PW 2 and PW 3 were brought to the Government hospital an information was sent from the police out post in the Hospital at Thanjayur to the Needamangalam police station which was received at about 3 p.m. Thereafter the said information was entered in the general diary of the police station and placed before PW 20 who came to the hospital and recorded the statement of deceased Sekhar at about 4.30 p.m.

On the other hand, PW 15, the Judicial Magistrate, who was already in the hospital recording the dying declaration of another person, was informed by the duty medical officer at about 3.30 p.m. to record the dying declaration of deceased Sekhar and PWs 2 and 3. Thereafter, according to PW 15, he went to the ward where the injured were admitted but he was told that the patients have been taken to the operation theatre. He, therefore, went to the operation theatre where he found PWs 2 and 3 in the waiting room. At that time the deceased Sekhar was inside the operation theatre undergoing surgery. The Judicial Magistrate recorded the statements of PWs 2 and 3 and came back later to record the statement (dying declaration) of deceased Sekhar at about 9.30 p.m. There is certainly some amount of overlapping in the time mentioned by the two prosecution witnesses, i.e. PWs 15 and 20.

However, reference to such time must be understood having regard to the normal course of human life, namely, that such reference is largely by approximation and not strictly by the hour of the clock. So viewed we do not find any inconsistency in the above part of the prosecution case. We would like to add, in this regard, that even if Exh.P.37 is to be discarded, the prosecution case would still stand established on the basis of the evidence of PWs 1, 2 and 3 read alongwith the evidence of PWs 4 and 6 and the dying declaration of deceased Sekhar recorded by PW 15 which was duly certified by the Doctor (PW 13) as having been made by the deceased in his presence in a fit mental condition.

10. For the aforesaid reasons, we do not consider the present to be a fit case for any interference. Accordingly, we dismiss the appeal and affirm the judgment of the High Court.

..................................J.

[P. SATHASIVAM] 

...................................J.

[RANJAN GOGOI] 

New Delhi, September 20, 2012. 

STATE OF RAJASTHAN & ORS. v. AANJANEY ORGANIC HERBAL PVT.LTD. [2012] EssenSC 540 (20 September 2012)

Judgement REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 6741-6742 OF 2012 [Arising out of SLP (Civil) Nos. 33006-33007 of 2010] 

State of Rajasthan & Others .. Appellants 

Versus 

Aanjaney Organic Herbal Pvt. Ltd. .. Respondents 

WITH CIVIL APPEAL NO. 6743 OF 2012 [Arising out of SLP (Civil) No. 14771 of 2011]

  K. S. RADHAKRISHNAN, J.

1. Leave granted.

2. We are, in this case, called upon to decide the question as to whether the transfer of land from a member of Scheduled Caste to a juristic person, other than Scheduled Caste, is void, in view of the provisions of Section 42(b) of the Rajasthan Tenancy Act, 1955 (for short "the Act:").

3. The High Court of Rajasthan has answered the above question in several cases holding that such a transfer would not be hit by the above mentioned provision, since the expression ‘person’ would not take in a ‘juristic person’ and that juristic person does not have a caste and, therefore, any transfer made by a Scheduled Caste person would not be hit by Section 42(b) of the Act.

4. In the impugned judgment, reliance has been placed on an earlier judgment of the High Court of Rajasthan in State of Rajasthan v. Indian Oil Corporation 2004 (5) WLC (Raj.) 703, which held as follows:

“6. It goes without saying that though the Indian Oil Corporation is a juristic person but it does not have a caste. Thus the sale in favour of Indian Oil Corporation by a member of Scheduled Caste is not covered by the provisions of section 42 of the Rajasthan Tenancy Act. Thus taking into totality of the facts and circumstances, we feel that it is not a fit case where the delay of 480 days should be condoned. The special leave is rejected.”

5. The judgment in IOC (supra) was challenged before this Court by the State of Rajasthan in C.C. No. 19386 of 2010 with an application for condonation of delay of 2798 days. This Court dismissed the petition with costs vide order dated 4.1.2011, since the delay was not properly explained.

6. We are informed that since the special leave petition, arising out of CC No. 19386 of 2010, was dismissed, the judgment in IOC (supra) is treated as law so far as the State of Rajasthan is concerned and being followed in various other similar cases. It is, therefore, necessary to examine the various legal issues raised before us so as to render an authoritative pronouncement on the question posed before us.

7. The respondent is a private limited company registered under the Indian Companies Act vide Registration Certificate of Incorporation dated 17.8.2005. The Company purchased 25 bighas of land in Khasra No. 840/651 situated in Village Jetasan Patwar area Jetasan Tehsil, Rajasthan, out of which 9.73 bighas belonged to the members of Scheduled Caste. That property was purchased on 26.9.2005 by a registered sale deed for a consideration of Rs.60,000/-. An application was preferred by the respondent before the Revenue Authorities for mutation of the property.

The same was refused placing reliance on a circular dated 19.11.2005, which stated that mutation could be effected only if the transfer was between the members of Scheduled Caste/ Scheduled Tribe, as the case may be. Since the application for mutation was refused, the respondent herein filed S.B.

Civil Writ Petition No. 169/2006, which was allowed by a learned single Judge. Aggrieved by the same, the State preferred an appeal before the Division Bench, being D.B. Civil Writ Special Appeal (Writ) No. DR (J) 1177/2008, which was also dismissed following the judgment in IOC (supra).

8. Heard learned counsel on either side. The Act is a beneficial legislation which takes special care to protect the interest of the members of Schedule Caste and Schedule Tribe. Section 42 provides some general restrictions on sale, gift and bequest of the interest of Scheduled Caste and Scheduled Tribe, in the whole or part of their holding. The reason for such general restrictions is not only to safeguard the interest of the members of Scheduled Caste and Scheduled Tribe, but also to see that they are not being exploited by the members of non-Scheduled Caste and Scheduled Tribe. The relevant provisions of Section 42(b) are extracted below for easy reference:

“42. General restrictions on sale, gift & bequest – The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void if a) xxxxxxx deleted b) Such sale, gift or bequest is by a member of a Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe.”

9. Shri P.P. Choudhary, learned senior counsel appearing for the respondent, submitted that the expression ‘person’, as such, is not defined in the Act and, therefore, we have to go by the definition of ‘person’ under the General Clauses Act, 1987. The General Clauses Act defines the expression ‘person’ as follows:

“3(42). ‘Person’ shall include any company or association of body or individuals, whether incorporated or not.”

10. Learned senior counsel, therefore, submitted that, if it is so read along with Section 3(42) of the General Clauses Act, the expression ‘person’ used in clause (b) of Section 42 of the Act takes in a juristic person as well and, therefore, if a member of Scheduled Caste sells his property to a juristic person, the sale cannot be declared as void, since a juristic person has no caste.

11. Dr. Manish Singhvi, learned Additional Advocate General appearing for the State of Rajasthan, on the other hand, contended that we cannot read Section 3(42) of the General Clauses Act into Section 42(b) of the Act, out of context. Learned counsel submitted that the expression ‘person’ used in Section 42(b) of the Act is a natural person and not a juristic person and if the transfer is by a member of Scheduled Caste or Scheduled Tribe to a person who is not a member of Scheduled Caste or Scheduled Tribe, then such a transfer is void under Section 42 of the Act.

12. Article 341 of the Constitution empowers the President by public notification to specify the castes, races or tribes which shall, for the purpose of the Constitution, be deemed to be Scheduled Castes in relation to that State or Union Territory etc. Article 341 of the Constitution reads as follows:

“341. Scheduled Castes.- (1) The President may with respect to any State or Union Territory, and where it is a State after consultation with the Governor thereof, by public notification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

13. Article 342 of the Constitution deals with ‘Scheduled Tribes’ and reads as follows:

“342. Scheduled Tribes. – (1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State or Union Territory, as the case may be.

(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.”

14. The expressions ‘Scheduled Castes’ and “Scheduled Tribes’, we find in Section 42(b) of the Act have to be read along with the constitutional provisions and, if so read, the expression ‘who is not a member of the Scheduled Caste or Scheduled Tribe’ would mean a person other than those who has been included in the public notification as per Articles 341 and 342 of the Constitution. The expression ‘person’ used in Section 42(b) of the Act therefore can only be a natural person and not a juristic person, otherwise, the entire purpose of that section will be defeated. If the contention of the company is accepted, it can purchase land from Scheduled Caste / Scheduled Tribe and then sell it to a non-Scheduled Caste and Schedule Tribe, a situation the legislature wanted to avoid. A thing which cannot be done directly can be not done indirectly over-reaching the statutory restriction.

15. We are, therefore, of the view that the reasoning of the High Court that the respondent being a juristic person, the sale effected by a member of Scheduled Caste to a juristic person, which does not have a caste, is not hit by Section 42 of the Act, is untenable and gives a wrong interpretation to the above mentioned provision.

16. We are also of the view that the Revenue Authorities rightly refused the mutation as per circular dated 9.11.2005. Condition No. 7(2) of the circular was rightly invoked by the Revenue Authorities in denying mutation, which condition is extracted below for easy reference:

“7(2). If the khatedar of Scheduled Caste / Scheduled Tribe executes sale to such a person of Scheduled Caste / Scheduled Tribe who is office-bearer of any firm/society/company/legal institution, then the mutation on the basis of registration shall be made only in the name of that particular person/vendee who is a member of Scheduled Caste/Scheduled Tribe and not in the name of that firm/society/company/legal institution wherein he is office-bearer or member.”

17. The above mentioned condition makes it amply clear that the mutation on the basis of registration shall be made only in the name of that particular person/vendee who is a member of Scheduled Caste/Scheduled Tribe and not in the name of any firm/society/company/legal institution wherein a person is office-bearer or member. When we apply the above principles to the transfer of land in question, we have no hesitation to hold that the sale deed effected on 26.9.2005 was void and therefore rightly denied mutation in Revenue records. Property, therefore purchased by the respondent from the members of Scheduled Caste vide sale deed dated 26.9.2005 and other sale deeds, therefore are void since hit by Section 42(b) of the Act and it is so declared. The State can, therefore, re- possess the lands and return the lands to the original owners who are members of Scheduled Caste.

18. We may hasten to add, at times, Section 42(b) may go against the interest of the members of Scheduled Caste / Scheduled Tribe as well.

There may be several situations where they intend to sell the property for purposes like marriage of son/daughter or to purchase a better property and so on, but in that event sometimes they may not get a better competitive price, if the sale is made only among the members of Scheduled Caste / Scheduled Tribe. We have come across legislations where provisions are made enabling them to sell their lands to the members of non-Scheduled Caste / Scheduled Tribe, on getting permission from the prescribed authority. Such a provision may be sometimes helpful to the members of Scheduled Caste / Scheduled Tribe to get a better price for their land but it is for the legislature to incorporate appropriate provision in the Rajasthan Act.

19. Consequently, the appeals are allowed and the judgments of the learned single Judge and the Division Bench of the High Court are set aside. However, there will be no order as to costs.

......................................................J.

(K.S. Radhakrishnan) 

................................J. 

BENARSI KRISHNA COMMIT.& ORS. v. KARMYOGI SHELTERS P.LTD. [2012] EssenSC 541 (21 September 2012)

Judgement REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL)No.23860 of 2010

BENARSI KRISHNA COMMIT.& ORS. 
v. 
KARMYOGI SHELTERS P.LTD.

ALTAMAS KABIR, J.

1. In this Special Leave Petition, a question has been raised as to whether the service of an Arbitral Award on the agent of a party amounts to service on the party itself, having regard to the provisions of Section 31(5) and Section 34(3) of the Arbitration and Conciliation Act, 1996, hereinafter referred to as “the 1996 Act.

2. The Petitioner is a Committee of Managing Landlords, who are co- owners of the Benarsi Krishna Estate at the Moti Cinema compound, Chandni Chowk, Delhi. The property apparently belongs to the Khanna family and the Seth family. The Respondent No.1 is a Private Limited Company incorporated under the Companies Act, 1956, and is an estate developer and builder of both residential and commercial properties. The Petitioner Committee entered into a Collaboration Agreement dated 16th November, 1990, by which the Respondent agreed to convert the Moti Cinema compound into a commercial complex. Subsequently, the agreement was amended on 2nd May, 1991, by which certain changes were introduced with regard to the scheme of payment. Inasmuch as disputes arose between the parties over the working of the agreement, the Respondent filed an application under Section 11 of the 1996 Act for appointment of an Arbitrator and by an order dated 14th May, 2001, the Delhi High Court appointed Justice K. Ramamoorthy, a retired Judge of the said Court, as the Sole Arbitrator. After considering the materials brought on record, the learned Arbitrator passed his Award upon holding that the Respondent had committed breach of the terms of the Collaboration Agreement and directed the Petitioner to refund the sum of Rs.41 lakhs which had been received from the Respondent, within three months from the date of the Award and in default of payment within the said period, the amount would carry interest @ 12% per annum from the date of the Award till the date of payment.

3. As will appear from the records, copies of the Award, duly signed by the learned Arbitrator, were received by the counsel for the respective parties. As far as the Respondent is concerned, the endorsement shows that the copy of the Award was received by its counsel on 13th May, 2004.

However, no application for setting aside the Award was filed by the Respondent within the period of three months from the date of receipt of the Award, as provided under Section 34(3) of the 1996 Act.

4. On 3rd February, 2005, the Respondent filed a Petition, being O.M.P.

No.51 of 2005, under Section 34 of the 1996 Act, to set aside the Award of the learned Arbitrator. According to the Petitioner, the said petition was filed after a delay of more than 9 months from the date of the receipt of the Award. The said objection of the Petitioner was considered by the learned Single Judge of the High Court who by his order dated 28th August, 2009, dismissed the Respondent’s petition on the ground that the same was time barred. The learned Single Judge accepted the contention of the Petitioner that the expression “party” used in Section 31(5) of the 1996 Act, would also include the agent of the party.

5. The matter was carried to the Division Bench of the High Court by the Respondent on 5th October, 2009, by way of F.A.O. (OS) No.578 of 2009.

Accepting the case of the Respondent that service of the Award had not been properly effected, the Division Bench remanded the matter to the Single Judge to decide the objections on the Award on merits, upon holding that for compliance with the provisions of Section 31(5) of the 1996 Act, a copy of the Award had to be delivered to the party itself and service on its counsel did not amount to service within the meaning of Section 31(5) of the aforesaid Act. The Special Leave Petition has been filed against the said judgment and order of the Division Bench of the Delhi High Court.

6. In arriving at its decision which has been impugned in these proceedings, the Division Bench of the Delhi High Court referred to its own Bandhu Constgructions Company [AIR 2007 Delhi 202] and a decision of this SCC 239], which had considered the decision of the Delhi High Court in Bundela Bandhu’s case (supra). The Division Bench also referred to the King Emperor [(AIR 1936 PC 253], wherein it was categorically laid down that if an action is required to be taken in a particular manner, it had to be taken in that manner only or not at all. While observing that all the aforesaid controversies could have been avoided if the Award had been served on the party directly, the Division Bench also observed that in view of Section 2(h) of the 1996 Act, there was no justifiable reason to depart from the precise definition of the expression “party” which means a party to the arbitration agreement.

7. Appearing in support of the Special Leave Petition, Mr. Ranjit Kumar, learned Senior Advocate, reiterated the submissions which had been made before the High Court. Learned senior counsel reiterated that after the Award had been passed on 12th May, 2004, a copy of the same, duly signed by the Arbitrator, was received by counsel for the Respondent on 13th May, 2004, while the Petition under Section 34 was filed only on 3rd February, 2005, well beyond the period of 3 months prescribed in Section 34(3) of the 1996 Act and also beyond the further period of 3 months as indicated in the proviso thereto. Since the question for decision in the Special Leave Petition largely depends on the interpretation of Sub-section (3) of Section 34 and the proviso thereto, the same is extracted hereinbelow for purposes of reference :- “34. Application for setting aside arbitral award. - (1) …………………………………………………………………… (2) ……………………………………………………………………… (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal:

Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. “

8. Mr. Ranjit Kumar urged that service of the Award on the Advocate for the party was sufficient compliance of the provisions of Section 34(3) of the 1996 Act, as had been held by a Four-Judge Bench of this Court in Nilakantha Sidramappa Ningshetti vs. Kashinath Somanna Ningashetti [1962 Development Authority [(2001) 4 SCC 175]. Mr. Ranjit Kumar submitted that in Nilakantha Sidramappa Ningshetti’s case (supra) this Court held that intimation to the pleaders of the parties amounted to service of the notice on the parties about the filing of the Award.

9. Mr. Ranjit Kumar also referred to the decision of this Court in State Court, following its earlier decision in Tecco Trechy Engineers’s case (supra), held that Section 31(5) of the 1996 Act contemplates not merely the delivery of any kind of copy of the Award, but a copy of the Award which had been duly signed by the Members of the Arbitral Tribunal.

Learned counsel pointed out that in the said decision, the Hon’ble Judges had taken note of the fact that an attempt was being made to derive undue advantage of an omission on the part of the learned Arbitrator to supply them with a signed copy of the Award, but ultimately held that the same would not change the legal position and it would be wrong to tailor the law according to the facts of a particular case.

10. As an additional ground, Mr. Ranjit Kumar referred to the use of the words “signed by parties” under Order 23 Rule 3 read with Order 3 Rule 1 of the Code of Civil Procedure, which provide that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. Mr. Ranjit Kumar contended that on the strength of the Vakalatnama executed by the party in favour of his Advocate/agent, service of notice effected on the Advocate holding such Vakalatnama amounted to service of the notice on the party himself, as was SCC 566].

11. A similar view had been expressed by this Court in Byram Pestonji Court held that the expression “signed by parties” would include “signed by his pleader”. Mr. Ranjit Kumar submitted that once a Vakalatnama had been executed by a party in favour of his Advocate, the said Advocate was competent to do such acts as could be done by the party himself.

Accordingly, the Division Bench of the Delhi High Court had in the teeth of the aforesaid decisions erred in holding that service of the signed copy of the Award by the learned Arbitrator on the Respondent’s counsel, did not amount to compliance of the provisions of Section 31(5) of the 1996 Act, which specifically enjoined that the copy was to be delivered to each party.

12. Countering the submissions made by Mr. Ranjit Kumar, Mr. K.V.

Viswanathan, learned Senior Advocate, firstly urged that once hearing before the learned Arbitrator had been concluded and an Award had been passed by him, the power given to an Advocate by the Vakalatnama executed in his favour, came to an end and the learned Advocate was no longer entitled to act on the strength thereof. Accordingly, service on the said Advocate would not amount to service even on an agent of the party, even if Mr. Ranjit Kumar’s submissions were to be accepted. Mr. Viswanathan, however, contended that service on the learned Advocate of the party cannot be treated as service of the Award on the party itself, as had been very clearly held in the very same decision referred to by Mr. Ranjit Kumar in Pushpa Devi Bhagat’s case (supra).

13. Referring to the decision of the Three-Judge Bench of this Court in Tecco Trechy Engineers’s case (supra), Mr. Viswanathan submitted that the decision rendered therein completely covered the issue raised in this Special Leave Petition. Learned counsel submitted that on a construction of Sub-Section (3) of Section 34 of the 1996 Act, the learned Judges had held that “service on a party” as defined in Section 2(h) read with Section 34(3) of the 1996 Act, had to be construed to be a person directly connected with and involved in the proceedings and who is in control of the proceedings before the Arbitrator, as he would be the best person to understand and appreciate the Arbitral Award and to take a decision as to whether an application under Section 34 was required to be moved.

14. As to the decision in Pushpa Devi Bhagat’s case (supra), Mr.

Viswanathan submitted that the same was rendered on a completely different set of facts which could have no application to the facts of this case.

Mr. Viswanathan submitted that no interference was called for with the decision of the Division Bench of the High Court impugned in the Special Leave Petition, which was liable to be dismissed.

15. Having taken note of the submissions advanced on behalf of the respective parties and having particular regard to the expression “party” as defined in Section 2(h) of the 1996 Act read with the provisions of Sections 31(5) and 34(3) of the 1996 Act, we are not inclined to interfere with the decision of the Division Bench of the Delhi High Court impugned in these proceedings. The expression “party” has been amply dealt with in Tecco Trechy Engineers’s case (supra) and also in ARK Builders Pvt.

Ltd.’s case (supra), referred to hereinabove. It is one thing for an Advocate to act and plead on behalf of a party in a proceeding and it is another for an Advocate to act as the party himself. The expression “party”, as defined in Section 2(h) of the 1996 Act, clearly indicates a person who is a party to an arbitration agreement. The said definition is not qualified in any way so as to include the agent of the party to such agreement. Any reference, therefore, made in Section 31(5) and Section 34(2) of the 1996 Act can only mean the party himself and not his or her agent, or Advocate empowered to act on the basis of a Vakalatnama. In such circumstances, proper compliance with Section 31(5) would mean delivery of a signed copy of the Arbitral Award on the party himself and not on his Advocate, which gives the party concerned the right to proceed under Section 34(3) of the aforesaid Act.

16. The view taken in Pushpa Devi Bhagat's case (supra) is in relation to the authority given to an Advocate to act on behalf of a party to a proceeding in the proceedings itself, which cannot stand satisfied where a provision such as Section 31(5) of the 1996 Act is concerned. The said provision clearly indicates that a signed copy of the Award has to be delivered to the party. Accordingly, when a copy of the signed Award is not delivered to the party himself, it would not amount to compliance with the provisions of Section 31(5) of the Act. The other decision cited by Mr. Ranjit Kumar in Nilakantha Sidramappa Ningshetti's case (supra) was rendered under the provisions of the Arbitration Act, 1940, which did not have a provision similar to the provisions of Section 31(5) of the 1996 Act. The said decision would, therefore, not be applicable to the facts of this case also.

17. In the instant case, since a signed copy of the Award had not been delivered to the party itself and the party obtained the same on 15th December, 2004, and the Petition under Section 34 of the Act was filed on 3rd February, 2005, it has to be held that the said petition was filed within the stipulated period of three months as contemplated under Section 34(3) of the aforesaid Act. Consequently, the objection taken on behalf of the Petitioner herein cannot be sustained and, in our view, was rightly rejected by the Division Bench of the Delhi High Court.

18. Consequently, the Special Leave Petition must fail and is dismissed.

19. There will, however, be no order as to costs.

.....................................J.

(ALTAMAS KABIR)

........................................J.

(J. CHELAMESWAR) 

New Delhi Dated: 21.09.2012. 

Widow should get insurance compensation: HC

Granting respite to a woman whose husband was killed in a mishap, the Nagpur bench of the Bombay High Court has ruled that even if she got employment on compassionate grounds, she is entitled to receive full compensation from the insurance company.

The High Court, yesterday, dismissed an appeal filed by New India Assurance Company Ltd, challenging the Motor Accidents Claim Tribunal’s (MACT) order of August 23, 2008, awarding Rs 11.48 lakh compensation to Chandrapur resident Vandana Ramteke, whose husband Pradeep was killed in a road accident on August 7, 2001.

Pradeep, who was working with Western Coalfields Ltd (WCL) on a monthly salary of Rs 10,195, was going to his office when a truck, insured with the petitioner company, knocked him dead.

The tribunal, after considering the income of the deceased, worked out the loss of dependency at Rs 73,200 per annum and by applying a multiplier of 16, having regard to age of the deceased, awarded Rs 11.81 lakh compensation.

Taking into consideration various deductions, the MACT stated that the carry-home salary of the deceased was Rs 9,475. After deducting one-third amount towards his personal and living expenses, the loss of dependency per month came to Rs 6,100.

The company raised objection to the quantum of compensation, contending that the deceased’s wife was offered compassionate employment by the employer (WCL) and in view of that, the loss of dependency worked out by the MACT was on a much higher side.

The counsel for the respondent relied upon various decisions to support his contention that factors like widow of the deceased getting employment on compassionate ground had nothing to do with compensation to be awarded on account of death.

CBI, HYDERABAD v. K. NARAYANA RAO [2012] EssenSC 542 (21 September 2012)

Judgement REPORTABLE 

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION 1 CRIMINAL APPEAL NO. 1460 OF 2012 (Arising out of S.L.P. (Crl.) No. 6975 of 2011) 

Central Bureau of Investigation, Hyderabad .... Appellant(s) 

Versus 

K. Narayana Rao .... Respondent(s) 

P.Sathasivam,J.

1) Leave granted.

2) This appeal is directed against the final judgment and order dated 09.07.2010 passed by the High Court of Judicature, Andhra Pradesh at Hyderabad in Criminal Petition No. 2347 of 2008 whereby the High Court allowed the petition filed by the respondent herein under Section 482 of the Code of Criminal Procedure, 1973 (in short “the Code”) and quashed the criminal proceedings pending against him in CC No. 44 of 2007 (Crime No. 36 of 2005) on the file of the Special Judge for CBI cases, Hyderabad.

3) Brief facts:

(a) According to the prosecution, basing on an information, on 30.11.2005, the CBI, Hyderabad registered an FIR being RC 32(A)/2005 against Shri P. Radha Gopal Reddy (A-1) and Shri Udaya Sankar (A-2), the then Branch Manager and the Assistant Manager, respectively of the Vijaya Bank, Narayanaguda Branch, Hyderabad, for the commission of offence punishable under Sections 120-B, 419, 420, 467, 468 471 read with Section 109 of the Indian Penal Code, 1860 (in short ‘the IPC’) and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 for abusing their official position as public servants and for having conspired with private individuals, viz., Shri P.Y. Kondala Rao – the builder (A-3) and Shri N.S. Sanjeeva Rao (A-4) and other unknown persons for defrauding the bank by sanctioning and disbursement of housing loans to 22 borrowers in violation of the Bank’s rules and guidelines and thereby caused wrongful loss of Rs. 1.27 crores to the Bank and corresponding gain for themselves.

In furtherance of the said conspiracy, A-2 conducted the pre-sanction inspection in respect of 22 housing loans and A-1 sanctioned the same.

(b) After completion of the investigation, the CBI filed charge sheet along with the list of witnesses and the list of documents against all the accused persons. In the said charge sheet, Shri K. Narayana Rao, the respondent herein, who is a legal practitioner and a panel advocate for the Vijaya Bank, was also arrayed as A-6. The duty of the respondent herein as a panel advocate was to verify the documents and to give legal opinion.

The allegation against him is that he gave false legal opinion in respect of 10 housing loans. It has been specifically alleged in the charge sheet that the respondent herein (A-6) and Mr. K.C. Ramdas (A-7)-the valuer have failed to point out the actual ownership of the properties and to bring out the ownership details and name of the apartments in their reports and also the falsity in the permissions for construction issued by the Municipal Authorities.

(c) Being aggrieved, the respondent herein (A-6) filed a petition being Criminal Petition No. 2347 of 2008 under Section 482 of the Code before the High Court of Andhra Pradesh at Hyderabad for quashing of the criminal proceedings in CC No. 44 of 2007 on the file of the Special Judge for CBI Cases, Hyderabad. By impugned judgment and order dated 09.07.2010, the High Court quashed the proceedings insofar as the respondent herein (A-6) is concerned.

(d) Being aggrieved, the CBI, Hyderabad filed this appeal by way of special leave.

4) Heard Mr. H.P. Raval, learned Additional Solicitor General for the appellant-CBI and Mr. R. Venkataramani, learned senior counsel for the respondent (A-6).

5) After taking us through the allegations in the charge sheet presented before the special Court and all other relevant materials, the learned ASG has raised the following contentions:

(i) The High Court while entertaining the petition under Section 482 of the Code has exceeded its jurisdiction. The powers under Section 482 are inherent which are to be exercised in exceptional and extraordinary circumstances. The power being extraordinary has to be exercised sparingly, cautiously and in exceptional circumstances;

(ii) The High Court has committed an error in holding that no material had been gathered by the investigating agency against the respondent herein (A- 6) that he had conspired with the remaining accused for committing the offence; and (iii) There is no material on record to show that the respondent herein (A- 6) did not verify the originals pertaining to housing loans before giving legal opinion and intentionally changed the proforma and violated the Bank’s circulars.

6) On the other hand, Mr. Venkataramani, learned senior counsel for the respondent (A-6), after taking us through the charge sheet and the materials placed before the respondent seeking legal opinion, submitted that he has not committed any offence much less an offence punishable under Section 120-B read with Sections 419, 420, 467, 468, 471 and 109 of IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. He further submitted that based on the documents placed, the respondent herein after perusing and on satisfying himself, furnished his legal opinion for which he cannot be implicated as one of the conspirators for the offence punishable under Section 420 read with Section 109 IPC.

7) We have carefully perused all the relevant materials and considered the rival submissions.

8) In order to appreciate the stand of the CBI and the defence of the respondent, it is necessary to refer the specific allegations in the charge sheet. The respondent herein has been arrayed as accused No. 6 in the charge sheet and the allegations against him are as under:

“Para 20: Investigation revealed that legal opinions in respect of all these 10 loans have been given by Panel Advocate – Sri K. Narayana Rao (A-6) and valuation reports were given by Approved Valuer – Sri V.C.

Ramdas(A-7). Both, the advocate and the valuer, have failed to point out the actual ownership of the property and failed to bring out the ownership details and name of the apartments in their reports. They have also failed to point out the falsehood in the construction permission issued by the municipal authorities.

Para 28: Investigation revealed that the municipal permissions submitted to the bank were also fake.

Para 29: Expert of Finger Print Bureau confirmed that the thumb impressions available on the questioned 22 title deeds pertain to A-3, A-4 and A-5.

Para 30: The above facts disclose that Sri P. Radha Gopal Reddy (A-1) and Sri M. Udaya Sankar (A-2) entered into criminal conspirary with A- 3 and abused their official position as public servants by violating the bank norms and in the process caused wrongful gain to A-3 to the extent of Rs.1,00,68,050/- and corresponding wrongful loss to the bank in sanctioning 22 housing loans. Sri P.Y. Kondal Rao(A-3) registered false sale deeds in favour of borrowers using impostors as site owners, produced false municipal permissions and cheated the bank in getting the housing loans. He is liable for conspiracy, cheating, forgery for the purpose of cheating and for using forged documents as genuine. Sri B. Ramanaji Rao(A-4) and Sri R. Sai Sita Rama Rao(A-5) impersonated as site owners, executed the false sale deeds. They are liable for impersonation, conspiracy, cheating, forging a valuable security and forgery for the purpose of cheating. Sri K. Narayana Rao (A-6) submitted false legal opinions and Sri K.C. Ramdas(A-7) submitted false valuation reports about the genuineness of the properties in collusion with A-3 for sanction of the loans by Vijaya Bank, Narayanaguda branch, Hyderabad and abetted the crime. Sri A.V.

Subba Rao(A-8) managed verification of salary slips of the borrowers of 12 housing loans in collusion with A-3 and abetted the crime.

Para 33: In view of the above, the accused A-1, A-2, A-3, A-4, A-5, A- 6, A-7 & A-8 are liable for offences punishable under Section 120-B read with Sections 419, 420, 467, 468, 471 and 109 read with Section 420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and substantive offences thereof.” With the above details, let us consider whether there is prima facie allegation(s) and material(s) in order to pursue the trial against the respondent herein. In the same way, we have to see whether the reasoning and the ultimate conclusion of the High Court in quashing the charge sheet against the respondent herein (A-6) is sustainable. We are conscious of the power and jurisdiction of the High Court under Section 482 of the Code for interfering with the criminal prosecution at the threshold.

9) Mr. Raval, learned ASG in support of his contentions relied on the following decisions:

i) State of Bihar vs. Ramesh Singh[1977] INSC 156; , (1977) 4 SCC 39;

ii) P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398; and iii) Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368.

10) The first decision Ramesh Singh (supra) relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. Para 4 of the said judgment is pressed into service which reads as under:

“4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. Thereafter comes at the initial stage the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either under Section 227 or Section 228 of the Code. If “the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, as enjoined by Section 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which— … (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused”, as provided in Section 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial.

But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.” 11) Discharge of accused under Section 227 of the Code was extensively considered by this Court in P. Vijayan (supra) wherein it was held as under:

“10. ……. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words “not sufficient ground for proceeding against the accused” clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

11. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 12) While considering the very same provisions i.e., framing of charges and discharge of accused, again in Sajjan Kumar (supra), this Court held thus:

“19. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

20. A Magistrate enquiring into a case under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case.

It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

Exercise of jurisdiction under Sections 227 and 228 CrPC

21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.

(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.” From the above decisions, it is clear that at the initial stage, if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, in that event, it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. A judicial magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post office and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

This provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. While analyzing the role of the respondent herein (A-6) from the charge sheet and the materials supplied along with it, the above principles have to be kept in mind.

13) In Rupan Deol Bajaj (Mrs.) and Another vs. Kanwar Pal Singh Gill and Another, (1995) 6 SCC 194, this Court has considered the scope of quashing an FIR and held that it is settled principle of law that at the stage of quashing an FIR or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. By noting the principles laid down in State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held that an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

14) In Mahavir Prashad Gupta and Another vs. State of National Capital Territory of Delhi and Others, (2000) 8 SCC 115, this Court considered the jurisdiction of the High Court under Section 482 of the Code and held as under:

“5. The law on the subject is very clear. In the case of State of Bihar v. Murad Ali Khan (1988) 4 SCC 655 it has been held that jurisdiction under Section 482 of the Code of Criminal Procedure has to be exercised sparingly and with circumspection. It has been held that at an initial stage a court should not embark upon an inquiry as to whether the allegations in the complaint are likely to be established by evidence or not. Again in the case of State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335 this Court has held that the power of quashing criminal proceedings must be exercised very sparingly and with circumspection and that too in the rarest of rare cases. It has been held that the court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that the extraordinary or inherent powers did not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.

15) Regarding conspiracy, Mr. Raval, learned ASG after taking us through the averments in the charge sheet based reliance on a decision of this Court in Shivnarayan Laxminarayan Joshi and Others vs. State of Maharashtra, (1980) 2 SCC 465 wherein it was held that once the conspiracy to commit an illegal act is proved, act of one conspirator becomes the act of the other. By pointing out the same, learned ASG submitted that the respondent herein (A-6), along with the other conspirators defrauded the Bank’s money by sanctioning loans to various fictitious persons.

16) We have already extracted the relevant allegations and the role of the respondent herein (A-6). The only allegation against the respondent is that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties. As rightly pointed out by Mr. Venkataramani, learned senior counsel for the respondent, the respondent was not named in the FIR. The allegations in the FIR are that A-1 to A-4 conspired together and cheated Vijaya Bank, Narayanaguda, Hyderabad to the tune of Rs. 1.27 crores. It is further seen that the offences alleged against A-1 to A-4 are the offences punishable under Sections 120B, 419, 420, 467, 468 and 471 of IPC and Section 13(2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988. It is not in dispute that the respondent is a practicing advocate and according to Mr. Venkataramani, he has experience in giving legal opinion and has conducted several cases for the banks including Vijaya Bank. As stated earlier, the only allegation against him is that he submitted false legal opinion about the genuineness of the properties in question. It is the definite stand of the respondent herein that he has rendered Legal Scrutiny Reports in all the cases after perusing the documents submitted by the Bank. It is also his claim that rendition of legal opinion cannot be construed as an offence. He further pointed out that it is not possible for the panel advocate to investigate the genuineness of the documents and in the present case, he only perused the contents and concluded whether the title was conveyed through a document or not. It is also brought to our notice that LW-5 (Listed Witness), who is the Law Officer of Vijaya Bank, has given a statement regarding flaw in respect of title of several properties. It is the claim of the respondent that in his statement, LW-5 has not even made a single comment as to the veracity of the legal opinion rendered by the respondent herein. In other words, it is the claim of the respondent that none of the witnesses have spoken to any overt act on his part or his involvement in the alleged conspiracy. Learned senior counsel for the respondent has also pointed out that out of 78 witnesses no one has made any relevant comment or statement about the alleged involvement of the respondent herein in the matter in question.

17) In order to appreciate the claim and the stand of the respondent herein as a panel advocate, we have perused the legal opinion rendered by the respondent herein in the form of Legal Scrutiny Report dated 10.09.2003 as to the title relating to Sri B.A.V.K. Mohan Rao, S/o late Shri Someshwar Rao which is as under.

“Legal Scrutiny Report Dated 10.09.2003.

To The Branch Manager, Vijaya Bank, Narayanaguda Hyderabad Sir, Sub:- Title Opinion Shri BAVK Mohan Rao S/o Late Shri Someswar Rao.

With reference to your letter dated NIL. I submit my Scrutiny Report as hereunder:-

1. Name and address of the Mortgagor Shri. BAVK Mohan Rao S/o Late Shri Someswar Rao R/o 1-1 290/3, Vidyanager, Hyderabad.

2. Details/Description of documents scrutinized:

|Sl.No. |Date |Name of the documents |Whether | | | | |Original/ | | | | |Certified | | | | |True Copy | |1. |12.05.2003 |C.C. Pahais for the year |Xerox Copy | | | |1972-73 and 1978-79 | | |2. |08.02.1980 |Death Certificate of Shri PV |Xerox Copy | | | |Narahari Rao | | |3. |07.03.1980 |Legal Heir Certificate of Shri|Xerox Copy | | | |PV Narahari Rao | | |4. |24.04.1980 |C.C. of Regd. GPA No. 58/80 |Xerox Copy | |5. |19.09.1980 |Regd. Sale Deed No. 1243/80 |Xerox Copy | | | |with Plan | | |6. |07.12.1998 |Sanctioned Plan vide |Xerox Copy | | | |proceeding No. 2155/98 | | |7. |02.01.2003 |Development Agreement |Xerox Copy | |8. |25.04.2003 |EC No. 6654/2003 for the |Xerox Copy | | | |period from 28.06.1980 to | | | | |31.03.1982 | | |9. |25.04.2003 |EC No. 4136/2003 for the |Xerox Copy | | | |period from 01.04.1982 to | | | | |23.03.1984 | | |10. |21.04.2003 |EC No. 3918/2003 for the |Xerox Copy | | | |period from 24.03.1994 to | | | | |20.04.2003 | | |11 |28.07.2003 |Agreement for Sale |Original |

3. Details/Description of Property:- Sl.No. Sy. No./H.No. Extent of land Location Boundaries Building Dist.Village All that Flat bearing No. F-5 on First Floor, admeasuring 900 sq. Ft, along with undivided share of land 28 sq yds, out of total admeasuring 870 sq. yds constructed on Plot Nos. 3, 4 and 5 in Sy. Nos. 84 and 85 in the premises of “Guru Datta Nivas”, situated at Nerdmet, Malkajagiri Municipality, and Mandal, Ranga Reddy Dist. Hyderabad and bounded by:

FLAT BOUNDARIES: LAND BOUNDARIES NORTH: Flat No. F-6 20-0” SOUTH: Open to sky Wide Road, Sy No. 86 EAST : Corridor & Stair Case Sy. Nos. 76 and 78 open to sky.

WEST : Open to sky

4. Brief History of the Property and How the owner/Mortgagor has derived title:

The Pahains for the years 1972-73 and 1978-79 under document No. 1 reveals that Sri. Venkat Naraari Rao is the pattadar and possessor of the land admeasuring Ac. 1-31 guntas in Sy No. 84 and Ac. 1-22 guntas in Sy No. 85 of Malkajgiri, Hyderabad.

The document No. 2 shows that Sri. PV Narahari Rao was expired on 23.01.1980 as per the Death Certificate issued by MCH.

The document No 3 shows that Smt. Saraswathi Bai is only the legal heir of Late Shri PV Narahari Rao.

The document No. 4 shows that Smt. Saraswathi Bai executed a GPA in favour of Sri. CV Prasad Rao, empowering him to deal and sell the above said property. The GPA was registered in the office of sub- Registrar of Hyderabad-East vide document No. 58/80 dated 24.04.1980.

The document No. 5 shows that Smt. Saraswathi Bai sold the Plot Nos.

3, 4 and 5 admeasuring 870 sq yds. situated at Malkajgiri, Hyderabad to Smt. N. Samson Sanjeeva Rao and executed a sale deed in his favour by virtue of document No. 1243/80 dated 19.09.1980 registered in the office of sub-registrar of Uppat, Ranga Reddy.

The document No. 6 shows that Shri N. Samson Sanjeeva Rao obtained permission from Malkajgiri Municipality for construction of Residential building consisting of Ground + 4 floors vide permit No.

G1/2155/98 dated 07.12.1998.

The document No. 7 shows that Shri N. Samson Sanjeeva Rao entered into development agreement with Shri PY Kondal Rao for construction of residential flats in the above said plots.

The document Nos. 8, 9 and 10 are the Encumbrance Certificates for the period from 28.06.1998 to 20.04.2003 (23 years) which disclose only the transactions mentioned in document No. 5.

The document No. 11 shows that Shri N. Samson Sanjeeva Rao (owner) along with Shri PY Kondal Rao (builder) agreed to sell the Schedule Property (referred under Item No. III of this opinion) to Shri BAVK Mohan Rao (applicant) for a total sale consideration of Rs. 5,50,000/- and Shri. BAVK Mohan Rao (applicant) also agreed to purchase the said property for the same consideration.

5. Search and Investigation.

|5.1 |The person who is the |Shri NS Sanjeeva Rao | | |present owner of the |(present owner/vendor) and | | |property |Shri BAVK Mohan Rao | | | |(purchaser/Vendee) | |5.2 to 5.5 |xxx |xxx | |5.6 |Whether there the latest|The document No. 5 is | | |title deed and |available in Xerox | | |immediately previous |(original verified) | | |title deed(s) are | | | |available in original | | |5.7 to 5.13|xxx |xxx | |5.14 |Whether the proposed |Yes, Equitable mortgage is | | |equitable mortgage by |possible. The original | | |deosit of title deed is |registered Sale Deed | | |possible? If so, what |executed in favour of Shri | | |are the documents to be |BAVK Mohan Rao (applicant) | | |deposited? If deposit is|by the Vendors along with | | |not possible, can there |all the documents as | | |be simple mortgage or a |mentioned in the list in | | |registered memorandum or|Item No. 2 of this opinion | | |by any other mode of |should be deposited. | | |mortgage? | | |5.15to 5.20|xxx |xxx | 6-8 xxx xxx xxx

9. CERTIFICATE I am of the opinion that Shri NS Sanjeeva Rao is having clear marketable title by virtue of Regd. Sale Deed No. 1243/1980 dated 19.09.1980 referred document No. 5 of this opinion. He can convey a valid clear marketable title in favour of Shri BAVK Mohan Rao (applicant) in respect of the schedule property (referred under Item No. 3 of this opinion) by duly executing a Regd. Sale Deed in his favour.

Shri BAVK Mohan Rao (applicant) can create a valid equitable mortgage with the Bank by depositing the original Regd. Sale deed executed in his by the vendors and also depositing all the documents as mentioned in the list in Item No. 2 of this opinion. I further certify that:- |1. |There are no prior mortgage/charge | | | |whatsoever as could be seen from the | | | |encumbrance certificate for the period | | | |from 28.06.1980 to 20.04.2003 pertaining to|Yes | | |the immovable property covered by the above| | | |title deed(s). | | |2. |There are prior mortgages/charges to the | | | |extent, which are liable to be cleared or | | | |satisfied by complying with the following. |NA | |3. |There are claims from minors and | | | |his/her/their interest in the property to | | | |the extent of (specify) the share of |NA | | |minor(s) with name | | |4. |The undivided share of minor of (specify | | | |the liability that is fastended or could be|NA | | |fastened on the property). | | |5. |The property is subject to the payment of | | | |Rupees (specify the liability that is | | | |fastened or could be fastened on the |NA | | |property) | | |6. |Provisions of Urban Land (Ceiling and | | | |Regulation) Act are not applicable. |NA | | |Permission obtained. | | |7. |Holding/Acquisitions in accordance with the| | | |provisions of the land: |NA | |8. |The mortgage if created will be perfect and| | | |available to the bank for the liability of | | | |the intending borrower: Shri BAVK Mohan Rao| | | |(Applicant) | | The Bank is advised to obtain the encumbrance certificate for the period from 21.04.2003 till the date after obtaining a registered sale deed in favour of Shri BAVK Mohan Rao (applicant) SEARCH REPORT:

I have verified the title deed of Shri N.S. Sanjeeva Rao in the office of sub-Registrar of Uppal, Hyderabad on 18.07.2003 and found that the sale transaction between parties, schedule property stamp papers, regd. Sale Deed No. 1243/1980 are genuine. The verification receipt is enclosed herewith.

(K. NARAYANA RAO) ADVOCATE” The above particulars show that the respondent herein, as a panel advocate, verified the documents supplied by the Bank and rendered his opinion. It also shows that he was furnished with Xerox copies of the documents and very few original documents as well as Xerox copies of Death Certificate, Legal heir-ship Certificate, Encumbrance Certificate for his perusal and opinion. It is his definite claim that he perused those documents and only after that he rendered his opinion. He also advised the bank to obtain Encumbrance Certificate for the period from 21.04.2003 till date. It is pointed out that in the same way, he furnished Legal Scrutiny Reports in respect of other cases also.

18) We have already mentioned that it is an admitted case of the prosecution that his name was not mentioned in the FIR. Only in the charge- sheet, the respondent has been shown as Accused No. 6 stating that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties in question.

19) Mr. Venkataramani, learned senior counsel for the respondent submitted that in support of charge under Section 120B, there is no factual foundation and no evidence at all. Section 120A defines criminal conspiracy which reads thus:

“120A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,- 1) an illegal act, or 2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:

Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.

Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” Section 120B speaks about punishment of criminal conspiracy. While considering the definition of criminal conspiracy, it is relevant to refer Sections 34 and 35 of IPC which are as under:

“34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” “35. When such an act is criminal by reason of its being done with a criminal knowledge or intention. - Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.” 20) The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence.

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 role of the present respondent along with the main conspirators.

22) The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge sheet and the materials placed for his scrutiny and arrived at a conclusion that the same does not disclose any criminal offence committed by him. It also concluded that there is no material to show that the respondent herein joined hands with A-1 to A-3 for giving false opinion. In the absence of direct material, he cannot be implicated as one of the conspirators of the offence punishable under Section 420 read with Section 109 of IPC. The High Court has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him.

Though as pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether any prima facie material available against the person who has charged with an offence under Section 420 read with Section 109 of IPC. 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 law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills.

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 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.

24) 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.

25) In Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra &

Ors. [1983] INSC 153; (1984) 2 SCC 556, this Court held that “…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.

26) 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.

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. 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.

28) In the light of the above discussion and after analysing all the materials, we are satisfied that there is no prima facie case for proceeding in respect of the charges alleged insofar as respondent herein is concerned. We agree with the conclusion of the High Court in quashing the criminal proceedings and reject the stand taken by the CBI.

29) In the light of what is stated above, the appeal fails and the same is dismissed.

..................................J.

(P. SATHASIVAM) 

..........................J.

(RANJAN GOGOI) NEW DELHI;

SEPTEMBER 21, 2012.