An advocate's liability for negligence in providing legal opinions for granting loans arises only when actively participating in a plan to defraud the bank, and mere negligence or lack of greater professional care and competence does not establish criminal liability.

ORDER :

1. The short question that emanates for consideration is, whether an Advocate acting professionally and in discharge of his / her professional duty renders an opinion by giving non-encumbrance certificate to bank for granting loan to a borrower certifying that he has legal and marketable title over the land in question free from all encumbrances and subsequently, the same is found to be non-acceptable / untrue, can be prosecuted / criminally liable for offence punishable under Sections 420, 467, 468, 471 & 120B of the IPC for non-exhibiting greater professional care and competence?

2. The above-stated question arises on the following factual background :-

3. Ten borrowers namely, Santuram Netam, Mahaveer Nirmalkar, Pawan Kumar Patel, Toran Lal Netam, Hemkaran Patel, Nileshwar Patel, Chandrashekhar Nishad, Kanti Sahu, Keshoram Patel and Yashuram Patel made application to the Branch Manager, Dena Bank, Pulgaon Chowk Branch, Durg under the scheme of Kisan Credit Card for granting loan on which the concerned Bank requisitioned non-encumbrance certificate from the petitioner herein who was an empaneled Advocate of Dena Bank on that day and on 7-12-2015, the petitioner certified qua the lands held by the borrowers that they have clear, marketable title to the property free from all encumbrances against which they had applied for loan and accordingly, they were granted loan under the said scheme to the following extent :-

4. The borrowers failed to repay the loan amount. Upon enquiry from the Office of the Sub-Registrar, Dhamdha, it was revealed that the documents - B-I, B-II, Khasra Panchshala and Rin Pustika submitted by the borrowers were found to be false and fabricated. Upon receipt of the aforesaid report, Mr. Dilip Mahajan, Branch Manager, Dena Bank, Durg made first information report (FIR) on 19-10-2016 to Police Station Pulgaon, for registration of aforesaid offence against ten accused persons in which the petitioner was not named. On 18-3-2017, FIR was registered in which also, the petitioner was not named, but when final report was submitted on 14-6-2017, the petitioner was named stating that she is an Advocate and is also empaneled Advocate of Dena Bank at the relevant point of time and she has given non-encumbrance certificate of legal scrutiny and she has certified Rin Pustika & Khasra Panchshala submitted along with the application for grant of loan to be true and issued non-encumbrance certificate and thereby, she has also committed the offence. Questioning legality, validity and correctness of the charge-sheet filed against the petitioner herein, this instant petition under Section 482 of the CrPC has been preferred.

5. Mr. Ashish Shrivastava, learned counsel for the petitioner, would submit that taking the contents of the charge-sheet as it is, no offence punishable under Sections 420, 467, 468, 471 & 120B of the IPC is made out against the petitioner, as the ingredients and elements of the aforesaid offences are clearly missing in the charge-sheet. He would further submit that the ingredients of the offence of criminal conspiracy are also missing and there is no allegation that the petitioner conspired with the other co-accused persons to submit false report or derived any pecuniary advantage in to submit the non-encumbrance certificate which was found to be u