The liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the bank.

JUDGMENT :

1. Rule. Learned advocates appearing for the respective respondents waive service of rule for the respective respondents.

2. As common issue raised in present applications and facts are also common, as a result, both the applications were heard together and disposed of by this common order.

3. This Court has heard learned Senior Counsel Mr. Anshin Desai assisted by Mr. Nandish Thackar, Mr. C.B. Upadhyay, learned counsel appearing for the applicants, Mr. R.C. Kodekar, learned Special Public Prosecutor for the respondent no. 2–CBI and Ms. Maithili Mehta, learned Additional Public Prosecutor for the respondent No.1-State.

4. Both the applicants are practicing lawyers, doing their practice at Surat, Gujarat State and panel advocates for State Bank of India. In the year 2014, M/s. Gauri International Pvt. Ltd and its directors namely D.K. Nakrani & V.V. Balal had applied for cash credit facilities with the SBI Bank, branch at Surat. The cash credit facilities to the tune of Rs.150 crores were sanctioned after scrutinizing the financial data and other documents submitted by the borrower company. The then Branch Manager Mr. Omprakash Verma had undertaken the entire exercise for sanctioning the loan. The said cash credit limit was encashed and released in favour of borrower company. The borrower company is engaged in textile business and they were irregular in making the payments of cash credit and failed to pay the outstanding with interest. The bank inquired into the entire loan transaction and found that the company and its directors and others committed a fraud by submitting fabricated/fake documents, inflating value of immovable properties and the properties given as a collateral security is not identifiable and the funds have been diverted and was not having been utilized for the purpose for which they were sanctioned. In such circumstances, the authorized officer of the Bank had submitted private complaint to the respondent CBI, inter-alia, alleging that, the accused and officials of the bank in connivance with each other, committed the offence of criminal conspiracy, cheating, forgery of valuable security, forgery for the purpose of cheating, using a forged documents as genuine and criminal misconduct by public servant, abusing their official position. The FIR being RC0292018A0010 dated 29.06.2018 came to be registered with CBI/ACB Gandhinagar Police Station for the offences punishable under Section 120B, read with Sections 420, 467, 468 and 471 of the Indian Penal Code and Section 13(2) read with Section 13(1D) of the Prevention of Corruption Act, 1988, against 8 persons and other unknown persons.

Pursuant to the said FIR, the investigation concluded and chargesheet came to be filed against 23 accused including present applicants. In the said chargesheet, the applicants have been arraigned as accused nos. 21 and 22. The allegations made in the chargesheet against the applicants read as under:

“(c) The petitioners respectfully submits that the respondent no.2 has made too general and vague allegation in the chargesheet that no prudent man would believe it to be true. The petitioner craves leave to reproduce the allegations/averments made in the charge-sheet with a view to implicate the petitioner in the entire offence, as under;

"Investigation revealed that branch had obtained two Title Investigation Reports each of the aforementioned two immovable properties from Panel Advocate Shri Ajay R Mehta and Shri Chandrakant K. Soni. Investigation has revealed that the search was conducted by Panel Advocate Shri Ajay R. Mehta in Sub-Registrar Office, Mahuva on 14.03.2014 and Sub- Registrar Office, Palsana on 27.03.2014, Title Investigation Reports were submitted on 2503.2014 and 28.03.2014 respectively for both the properties.

…. Investigation has revealed that as per the Government records the property bearing Plot No. 04, R.S. 122/2 Mouje Bagumara & Plot No. 04, Block No. 223, Mouje Tarsadi is records as a whole bearing Plot No.