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RAJASTHAN HIGH COURT
Pushpendra Singh Bhati, J.
Rajendra Singh —Petitioner
versus
State of Rajasthan Through P.P.
and Anr. —Respondents
S.B. Criminal Misc. (Pet.) No.2786 of 2017
Decided on 29.8.2017
Counsel for the Parties:
For the Petitioner:Mr. Amit Gaur, Advocate
For the Respondents: Mr. VS Rajpurohit, PP
IMPORTANT POINT
Liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.
Headnote:Indian Penal Code, 1860—Sections 420, 476, 486, 471 and 120B—Bank sanctioned loan on basis of forged documents as the land mortgaged by accused-loanee was already mortgaged—Petitioner, seeking quashing of FIR, was panel advocate for bank and on request of bank had submitted search reports to the bank on basis of documents submitted—Case was covered by judgment in Madhu Gupta case and FIR was liable to be quashed against petitioner.
Result: Petition allowed.
ORDER
Pushpendra Singh Bhati, J.—Petitioner has preferred this misc. petition under Section 482 of Cr.P.C. for quashing the FIR No.164/03.08.16 P.S. Bajju, District Bikaner offence under Section 420, 467, 468, 471 and 120- B of IPC.
2. Learned counsel for the petitioner has stated that petitioner is practicing lawyer at Bikaner and the petitioner was panel advocate of the various bank and on the request of the banks, petitioner submitted the search reports to the bank on the basis of documents submitted. Counsel for the petitioner has also stated that there is role of the petitioner in creating the documents for providing the loan to the persons who brought the documents. Since, it is a choice and prerogative of the bank either to grant or refuse the loan and as such the allegation on the lawyer for filing report i.e. virtually advice cannot be impleaded as a party accused in impugned FIR.
3. On 03.08.2016 the respondent No.2 lodged the FIR and alleged that one Mohd. Rafiq S/o Sh. Alla Bux took an advance loan of Rs.8.18 lacs by playing cheating with bank and on the basis of forged documents under the Kishan Sambal Yojna. It is also stated by counsel for the petitioner that the land in question was mortgaged by the accused Mohd Rafiq situated at 16 SMD, Murabba No.183/58, 183/50 and 203/02 totaling 48 bighas of land which was already mortgaged. Counsel for the petitioner has also stated that petitioner prepared forged report in favour of the Mohd. Rafiq and supported him by giving it to the bank and FIR was lodged against the accused including the present petitioner.
4. Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by a coordinate Bench of this Court in Madhu Gupta Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Petition No.2984/2016) decided on 23.03.2017.
5. This Court on 23.03.2017 has passed the following order in Madhu Gupta Vs. State (Supra):-
“1. Both the criminal misc. petitions under Section 482 Cr.P.C. arise out of the same FIR No.54/2009 registered at Police Station, Shastri Nagar, Jodhpur for offences under Sections 420, 467, 468 and 471 IPC, and therefore, the same are being decided by this common order.
2. The petitioners have preferred these misc.petitions for quashing of the aforesaid common FIR.
3. Non-petitioner No.2, who is Chief Manager of the Bank of Baroda, University Campus Branch, Jodhpur lodged FIR No.54/2009 at Police Station, Shastri Nagar, Jodhpur on 09.02.2009, in which he alleged that the loans were given to certain persons for business purposes. It was also alleged in the FIR that the loanee-Proprietor of M/s.Krishna Enterprises Shri Kumar Khanna s/o Shri Hardayal Khanna had moved an application before the Bank for grant of loan of Rs.25,00,000/-.
4. For proceeding with the grant of loan, the procedure was initiated for verification of the documents. The panel lawyers/Advocates were asked to verify the documents on Plot No.3 situated near Hari Nagar Khasra No.176/74, Village Chopasni, Jodhpur, so as to ascertain whether the documents submitted were correct or were having proper legal validity. The lawyer Shri J.K.Chanda prepared a nonencumbrance certificate and lawyer Ms.Madhu Gupta prepared the investigation report regarding the property in question. However subsequently, it came to the knowledge of the Bank officers that the report submitted by both the lawyers was not correct and the proposition of title was also not correct.
5. It is not in doubt that the loanee prima facie did not deposit the instalments, and furnished false and fabricated documents for mortgage, which has resulted into the loss to the Bank. The FIR was registered against the loanee and his guarantor and other persons, who were conspirators in cheating with the Bank in connivance with the loanee.
6. Learned Senior Counsel for the petitioner, Mr.Mahesh Bora has referred to the judgment of the Hon’ble Supreme Court in Central Bureau of Investigation, Hyderabad
