NEUTRAL CITATION
R/CR.MA/2690/2014 JUDGMENT DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 2690 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KIRITBHAI JAYENDRABHAI GOHEL
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR PRATIK Y JASANI(5325) for the Applicant(s) No. 1
MS ASMITA PATEL, APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 09/08/2023
ORAL JUDGMENT
1. Heard learned advocate Mr. Pratik Jasani for the petitioner, learned APP Ms. Asmita Patel for the respondent State. Though respondent No.2 is served, he has chosen not to Page 1 of 6 Downloaded on : Sun Sep 17 00:47:56 IST 2023 NEUTRAL CITATION R/CR.MA/2690/2014 JUDGMENT DATED: 09/08/2023 undefined remain present.
2. By way of this petition filed u/s 482 of the Code of Criminal Procedure, 1973, the petitioner prayed to quash and set aside the FIR being I - C.R. No. 384 of 2013 registered with Rajkot "A" Division Police Station for the offences punishable u/s 406, 420, 467, 471 and 120B of the IPC.
3. The facts, which can be stated briefly are that the first informant, he is authorized officer of Gruh Finance Limited. It is alleged in the impugned FIR that the accused in connivance with each other prepared forged documents and placed them as genuine to avail the loan from the Gruh Finance Limited. At the time of availing the loan, the documents, which are promised to be genuine, were given. It is also alleged that some material facts were suppressed for availing loan from some other financial institution. Insofar as the present petitioner is concerned, it is alleged that he being an advocate has prepared and tendered forged Title Clearance Certificate qua the property, which is sought to be mortgaged. In nutshell, stating such allegation, offence u/s 406, 420, 467, 471 and 120B of the IPC have been lodged by way of impugned FIR.
4. Learned advocate Mr. Pratik Jasani pressing reliance upon the judgment of the Hon'ble Apex Court in case of Surendra Nath Pande and another Vs. State of Bihar and another reported in (2020) 18 SCC 730 to submit that the issue is squarely covered up by the judgment. He would further submit that the role of the present petitioner alleged in the commission of offence is limited to prepare Title Clearance Certificate. He further Page 2 of 6 Downloaded on : Sun Sep 17 00:47:56 IST 2023 NEUTRAL CITATION R/CR.MA/2690/2014 JUDGMENT DATED: 09/08/2023 undefined submits that taking into account the contents of the FIR, except bald and omnibus statement, no other allegations are levelled so as it brings the petitioner under the clutch of offences u/s 406, 420, 467, 471 and 120B of the IPC i.e. criminal breach of trust. Lastly, it is submitted that since no contents of the offence is made out, allowing the prosecution may in all of likelihood to be abortive and futile. Upon such submissions, he prays to allow this petition.
5. On the other hand, learned APP Ms. Asmita Patel would submit that against some of the accused, Criminal Case No.4233 of 2014 has been tried unsuccessfully, whereby learned JMFC recorded clear acquittal in favour of the accused, more particularly, since the amount of loan is repaid to the Gruh Finance Limited, the fact which is surfaced. She has also placed on record statement of the first informant recorded by the police, which discloses that the amount of loan has been repaid by the accused and total amount is recovered. In statement, it has also been recorded that the Gruh Finance Limited has decided to withdraw the criminal case that arose from FIR being I - C.R. No. 384 of 2013 and in that statement, the officer of the Gruh Finance Limited assured to withdraw said criminal case. That speaks volume in favour of the petitioner. Both the copies of judgment and statement are taken on record. Upon such submission, learned APP prays to pass necessary orders.
6. Regard being held to the rival submissions of both the parties, let refer observations of the Hon'ble Apex Court made in Surendra Nath Pande (supra), more particuarly, para 4 to 6, which reads as under:-
Page 3 of 6 Downloaded on : Sun Sep 17 00:47:56 IST 2023NEUTRAL CITATION R/CR.MA/2690/2014 JUDGMENT DATED: 09/08/2023 undefined "4. Taking into account the contents of the FIR, we are left with the impression that the said allegations are bald and omnibus and do not make any specific reference to the role of the appellants in any alleged conspiracy. In Central Bureau of Investigation versus K. Narayana Rao [(2012) 9 SCC 512] to which one of us (Ranjan Gogoi, J.) was a party, it has been held by this Court that a criminal prosecution on the basis of such bald and omnibus statement/allegations against the panel advocates of the Bank ought not to be allowed to proceed as the same constitute an abuse of the process of the Court and such prosecution may in all likelihood be abortive and futile.
5. The following view expressed in Central Bureau of Investigation versus K. Narayana Rao (supra) will be appropriate to be quoted:
"30. 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.
31. 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 Page 4 of 6 Downloaded on : Sun Sep 17 00:47:56 IST 2023 NEUTRAL CITATION R/CR.MA/2690/2014 JUDGMENT DATED: 09/08/2023 undefined 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."
6. Taking into account the aforesaid facts and the ratio of the law laid down by this Court in Central Bureau of Investigation versus K. Narayana Rao (supra), we are of the view that the High Court was plainly wrong in refusing to interdict the proceedings against the appellants. We, therefore, set aside the order of the High Court and quash the proceedings in G.R. NO.710 of 206 arising out of Agiaon (G) P.S. Case No.20 of 2006 pending before the Chief Judicial Magistrate, Bhojpur, Ara insofar as the two appellants Surendra Nath Pandey and Suresh Prasad are concerned."
7. On reading the contents of the FIR as it is, what transpires is that according to the prosecution, the petitioner has prepared Title Clearance Certificate. Except said statement, no other allegations are levelled against the present petitioner, which can link the petitioner with the alleged offence. To be noted that learned JMFC during the trial recorded that the amount of loan is repaid and that has influenced the learned JMFC to acquit some of the co-accused. Comprehending the role of the present petitioner qua the offence in question as well as role of the other co-accused, which secured the clear acquittal and in view of the binding decision of the Hon'ble Apex Court, this is fit case, whereby criminal proceedings are required to be interdicted qua present petitioner.
8. For the foregoing reasons, present petition succeeds and it Page 5 of 6 Downloaded on : Sun Sep 17 00:47:56 IST 2023 NEUTRAL CITATION R/CR.MA/2690/2014 JUDGMENT DATED: 09/08/2023 undefined is hereby allowed. Impugned FIR being I - C.R. No. 384 of 2013 registered with Rajkot "A" Division Police Station and other consequential proceedings arising therefrom are hereby quashed and set aside. Rule is made absolute. Direct service is permitted.
(J. C. DOSHI,J) SHEKHAR P. BARVE Page 6 of 6 Downloaded on : Sun Sep 17 00:47:56 IST 2023