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ORISSA HIGH COURT
S.K. Mishra, J.
Nimai Charan Mohanty —Petitioner
versus
Union of India —Respondent
Cri Revision No. 181 of 2013
Decided on 10.11.2014
Counsel for the Parties:
For the Petitioner:M/s Soumya Mishra, A.K. Dash and S.Nanda, Advocate.
For the Opp. Party: M/s S.K. Padhi SSC for CBI.
IMPORTANT POINT
A report or opinion rendered by an Advocate to his client, if found to be incorrect, cannot constitute an offence when nothing is shown that such report or opinion is purposefully given to commit any offence.
Headnote:Indian Penal Code, 1860—Sections 420, 467, 468, 472 and 201 r/w 120B—Petitioner charge-sheeted for offence of criminal conspiracy for offences with other accused persons—Co-accused got a loan sanctioned from bank by pledging National Saving Certificate purported to have been issued by Post Office, Patna—Those NSCs turned out as stolen in transit—Branch Manager of bank was further found to have not initiated any punitive action against defaulter despite audit report in that regard—Petitioner as Government Pleader when asked for opined that original NSCs could be returned to loanee after retaining copies duly certified by Executive Magistrate—NSCs were released to co-accused loanee on his application—Whether prosecution of petitioner for criminal conspiracy for offences in absence of any other evidence to suggest such criminal conspiracy was sustainable? No. Paras 4 to 7, 9 to 11 and 12
Result: Petition allowed.
JUDGMENT
S. K. Mishra, J.— In this Criminal Revision, the accused namely Nimai Charan Mohanty assails the order dated 7.2.2014 passed in T.R.No.2 of 2010 of the Court of the Special Judge, C.B.I.-I, Bhubaneswar, rejecting his application under Section 239 of the Cr.P.C. to discharge him.
2. The investigation of the case was taken over by the C.B.I. as per the direction of this Court in W. P. Crl. No. 55 of 2003 vide order dated 24.4.2006. Specific direction was given by this Court to investigate the circumstance under which the original N.S.Cs. were permitted to be returned to the main accused. It was alleged in the F.I.R. that one Jagdish Prasad Saha, resident of Ward No.9, Baripada, Mayurbhanj and Puspa Devi entered into conspiracy with others and in pursuance thereof had taken loans from the Evening and Baripada branches of the Mayurbhanj Central Cooperative Bank Ltd. hereinafter referred to as the “MCCB Ltd.” to the tune of Rs. 9,49,500 by pledging N.S.Cs. purportedly issued from G.P.O., Patna, Bihar though the same were purportedly stolen in transit. The outstanding balance against the loan was Rs. 13,17,349 as on 31.3.2001. It was further alleged that the N.S.Cs. shown issued from Patna G.P.O. favouring Jagadish Prasad Saha and Puspa Devi were pledged for obtaining those loans from the MCCB Ltd. It is further alleged by the prosecution that even after receiving the memos and Interim Special Audit reports in this regard, the Secretary of the Bank and the Branch Managers of the said Bank preferred not to initiate any punitive action against the defaulter.
3. In course of investigation it transpires that the duties of the officers of the MCCB Ltd. in the matter of processing, sanction and recovery of loans against pledging of N.S.Cs. are envisaged in the “Mayurbhanj Central Co-op. Bank Loan against pledge of National Savings Certificate and Kisan Vikas Patra Rules. As per those Rules any officer of the Head Officer” duly authorized by the Secretary and the Branch Managers were competent to sanction loan against pledge of the certificate. But the Branch Managers were allowed to sanction such loan upto a limit Rs. 1 lakh only. However, they have exceeded their sanction limit and sanctioned the loan in favour of the aforesaid accused violating the rules of guiding the same.
4. As far as the present petitioner is concerned, it transpires during investigation that on receipt of the specific and detailed report of the Audit Officers pointing out that the N.S.Cs. purportedly pledged for this loan were actually stolen in transit and figured in the negative list, accused. Secretary B.K. Dash and Passing Officers Sk. Jallauddin did not take any action against the loanee. Later on receipt of the letter from the I.I.C., Baripada Police Station not to release the said N.S.Cs. even after repayment, accused Secretary B.K. Dash, brought the matter into the notice of the Collector and Management-in-charge of the MCCB Ltd. for obtaining an order. The Collector and Management-in-charge of the MCCB Ltd. formed a committee comprising of the Secretary of the Bank, Law Officer of the Bank, DRCS & ARCS of Baripada. He also allowed that the opinion of the Govt. Pleader may be taken, if need be. Secretary B. K. Dash instead of taking the opinion of the committee members, referred the file to the Government Pleader depicting an encouraging picture about repayment of loan. The Government Pleader N.C. Mohanty opined that the original N.S.Cs. may be returned to the loanee after retaining copies duly certified by one Executive Magistrate. Then a meeting of the Committee constituted by the Collector, attended by accused Secretary B. K. Dash, Makarfa Singh, DRCS and S.K. Jena, ACRS was held on 1.12.2010, in which the illegal opinion of said N.C. Mohanty, Government Pleader was ratified. The minutes of the said meeting were communicated to the then Branch Manager of Evening Branch. The application submitted by accused loanee J.P. Saha for return of impugned
