Tarun Aggarwal vs Union Of India And 2 Others
2023 Latest Caselaw 2505 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 87
 

 
Case :- APPLICATION U/S 482 No. - 40869 of 2022
 

 
Applicant :- Tarun Aggarwal
 
Opposite Party :- Union Of India And 2 Others
 
Counsel for Applicant :- Vimlendu Tripathi,Satyanand Tripathi
 
Counsel for Opposite Party :- A.S.G.I.,Sanjay Kumar Yadav
 

 
Hon'ble Dinesh Kumar Singh,J.

1. The present petition under Section 482 Cr.P.C. has been filed seeking quashing of the summoning and cognizance order dated 2.2.2022 as well as charge sheet dated 23.12.2021 and the entire proceedings of Criminal Misc. Case No.30 of 2021 (presently pending as Special Case No.3 of 2022), arising out of Case Crime No.RC1202017A0013, under Sections 120-B read with 420, 467, 468, 471 IPC and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, Police Station CBI/ACB, District Ghaziabad (CBI Vs. Gian Chand and others), pending in the court of learned Special Judge (Prevention of Corruption Act), CBI. Court No.1, Ghaziabad.

2. Large number of loans were sanctioned by Sri Gian Chand Verma, the then Senior Manager of the Syndicate Bank, Vaishali Branch, Ghaziabad on the basis of Search Report Cum Legal Opinions submitted by the petitioner, who was a panel lawyer of the bank in respect of the properties offered as collateral security for granting the loans. The Branch Manager in criminal conspiracy with Ramesh Chand Gupta, his wife and other co-accused had manufactured the documents and sanctioned the loans, which were not paid, as a result of thereof, the bank had suffered losses to the tune of Rs.14 Crores. Ramesh Chand Gupta was acting as middle man and architect of the whole financial bungling of the bank by distributing the loans to ineligible persons for considerations.

3. Allegation against the petitioner is that he in criminal conspiracy with Ramesh Chand Gupta and other accused, had deliberately submitted the false Search Report Cum Legal Opinions regarding the properties being unencumbered or having no valid title in favour of the borrowers.

4. Charge sheet submitted by the CBI after investigation would suggest that the petitioner had submitted a Search Report Cum Legal Opinion of one of the mortgaged property of Smt. Babita Rani, wife of Ramesh Chand Gupta to theeffect that ?Smt. Babita Rani may mortgage Lower Ground Floor and Second Floor in favour of the bank as security through equitable mortgage by depositing the original title deeds of the plot. The chain of law is established and there is continuity in flow till the present owner.? However, investigation has established that Smt. Babita Rani purchased the plot no.J-79, Sector-12, Pratap Vihar, Ghaziabad from Shri Anil Walia vide registered deed dated 22.1.22010 and after construction, sold the second floor to Sri Abhinav Chauhan vide registered sale deed dated 27.4.2012, the ground floor to Sri Ram Autar Mittal along with lower ground floor vide registered deed dated 4.5.2012, and the first floor to Sri Ajay Veer Singh vide registered sale deed dated 26.7.2012. Smt. Baita Rani was not in possession of the said property or any of its floor. Similar four false Search Report Cum Legal Opinion have been submitted by the petitioner in favour of Smt. Babita Rani and her husband and on the basis of these reports, these accused were sanctioned loans of huge amount, which was not paid.

5. Sri Vimlendu Tripathi, learned counsel for the petitioner submits that the petitioner was performing the legal function being the panel lawyer. There may have been a professional deficiency in rendering the service, but the petitioner was not involved in any manner in criminal conspiracy with other accused. He further submits that except for five reports out of 13, other reports were fund to be correct and the CBI did not find any deficiency in those reports. He also submits that merely on the basis of submission of five reports out of thirteen, which have been found to be incorrect/false, the petitioner has been arrayed as accused and, therefore, the prosecution of the petitioner is unsustainable.

6. In support of his submission, learned counsel for the petitioner has placed reliance on the following judgments:-

?Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, (2012) 9SCC 512;

Surendra Nath Pandey and another Vs State of Bihar and another; (2020) 18 SCC 730;

Gyan Chandra Mehrotra Vs. State through CBI/ACB, District Lucknow, 2019 (108) ACC 81; and

Application U/s 482 Cr.P.C. No.3350 of 2014, Rakesh Chandra Goyal Vs. The State of U.P. through SP, CBI/ACB, Lucknow, decided on 11.4.2019.?

7. On the other hand, Sri Gyan Prakash, learned Senior Advocate and Deputy Solicitor General of India, assisted by Sri Sanjay Kumar Yadav, for the CBI has submitted that the CBI during the course of investigation has found not only the reports forged and fabricated, but also the involvement of the petitioner in commission of offence along with Ramesh Chand Gupta and his wife. It could not have been a co-incident that all the five reports, which were found to be false, were in favour of accused Ramesh Chand Gupta and his wife. He has further submitted that there are two different aspects; one is submitting the report maliciously and the second is submitting incorrect report because of some over-site or inadvertently. If a lawyer has submitted wrong report inadvertently, then he would be entitled to the judgements cited by the learned counsel for the petitioner, but if he has submitted maliciously false report to the bank to favour the accused, he is not entitled to the benefit of the judgments, which he has cited.

8. I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record.

9. The Supreme Court in the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao (supra) in paragraph 27 has held that in the banking sector, rendering of legal opinion for granting of loans is an important component of an advocate?s work. If the Lawyer has been negligent of unprofessional in submitting the report, then criminal proceedings can not be drawn against him. However, if it is found that the Advocate, who submitted the report, was an active participation to defraud the bank, then he is liable to be prosecuted. Paragraphs 27 to 30 of the said judgement are extracted hereunder:-

?27. In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate's work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills. A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings viz. either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.

28.InJacob Mathewv.State of Punjab[(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] this Court laid down the standard to be applied for judging. To determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

29.InPandurang Dattatraya Khandekarv.Bar Council of Maharashtra[(1984) 2 SCC 556 : 1984 SCC (Cri) 335] this Court held that: (SCC p. 562, para 8)

?8. There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.?

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.?

10. This Court also in the cases of Gyan Chandra Mehrotra and Rakesh Chandra Goyal (supra) has taken the same view.

11. Looking at the investigation report, I am of the view that the reports submitted by the petitioner were not inadvertent mistakes, but were of part of criminal conspiracy to defraud the bank as it could not have been a mere co-incident that five reports submitted by the petitioner were in favour of the accused Ramesh Chand Gupta and his wife.

12. In view thereof, I do not find any merit and substance in this petition, which is hereby dismissed.

Order Date :- 24.1.2023

Rao/-