Kailash Kumar Agarwal vs State Of Jharkhand Through Cbi
2021 Latest Caselaw 4284 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr. Revision No. 406 of 2018
        Kailash Kumar Agarwal..........                      Petitioner
                                 Versus
        State of Jharkhand through CBI............                 Opp. Party
                                   ......

        Coram:    Hon'ble Mr. Justice Ananda Sen
                  Through:-Video Conferencing
                                   ......
        For the Petitioner               : Mr. Mahesh Tewari, Advocate
        For the CBI                      : Mr. Bhupal Krishna Prasad, Advocate
                                   ......
12/20.11.2021     The lawyers have no objection with regard to the proceeding,

which has been held through video conferencing today at 10.30 A.M. They have no complaint in respect to the audio and video clarity and quality.

2. Heard Mr. Mahesh Tewari, learned counsel appearing for the petitioner and Mr. B.K.Prasad, learned counsel appearing for the Central Bureau of Investigation.

3. This revision application is directed against the order dated 06.02.2018, passed in R.C. Case No. 06(S)/2014-EOW-R, registered for committing an offence under Sections419, 420, 467, 468, 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, pending before the Special Judge, CBI, Ranchi.

4. The petitioner, being a panel lawyer of Punjab National Bank, Sakchi Branch, Jamshedpur, has been made an accused on the ground that he has given a legal opinion without verifying the records and his legal opinion is false and his recommendation is based on the documents, which are forged.

5. The petitioner filed an application for discharge on the ground that there are no materials against him to suggest that he conspired and had taken active part in the conspiracy, thus, no case is made out against him and he needs to be discharged. It is submitted that all the documents were handed over to him by the Bank so he cannot be made an accused of forgery or cheating.

6. The trial court dismissed the discharge application vide order dated 06.02.2018, which gave rise to this revision application before this Court.

7. A First Information Report was instituted, which was numbered as R.C. Case No. 06(S)/2014-EOW-R, alleging therein that Punjab National Bank was cheated by the accused. It is alleged that one Narendra Kumar Srivastava, Proprietor of M/s Shiva Construction and Company and

Partner of M/s A.R.N. Infrastructure, Baridih, Jamshedpur and others applied for term loan and cash credit. It is alleged that Narendra Kumar Srivastava submitted sale deed, correction slips, rent receipts etc. of land as collateral sureties. It is alleged that such documents were sent to this petitioner, who happens to be a panel lawyer and on the basis of his opinion a huge term loan and cash credit facility was sanctioned in favour of the accused. It is further alleged that later on it was found that all those documents, which were produced as collateral sureties on whose basis an opinion was given by the lawyer, are forged and fabricated documents. It is alleged that the loss sustained by Punjab National Bank is to the tune of Rs.3.89 crores.

8. It is case of the prosecution that this petitioner, who happens to be an advocate, is also an accused because of the legal opinion, which he had given.

9. After registering the FIR, the police investigated and filed a charge sheet. It is the case of the petitioner that since in the charge sheet there is no material against the petitioner, the petitioner filed a discharge application before the court below.

10. Counsel for the petitioner submits that the trial court failed to take into consideration that there is no element of conspiracy. He submits that merely giving an opinion will not attract the offence under Sections 419, 420 of the Indian Penal Code. He submits that admittedly, it is not the case of the prosecution that this petitioner has ever manufactured or forged or fabricated any documents. He submits that Sections 467, 468 & 471 IPC is also not attracted so far as this petitioner is concerned. He further submits that since there is no element of conspiracy involving the petitioner, which surfaced during investigation so far as this petitioner is concerned, provisions of Prevention of Corruption Act, will also not be attracted.

11. Counsel appearing on behalf of the Central Bureau of Investigation, submits that the Bank had relied upon the opinion of the petitioner and thereafter, had sanctioned a huge loan. It is his submission that all the documents were handed over to the petitioner, but the petitioner did not verify the genuineness of the said documents, rather gave his opinion on the basis of the documents, which were forged and fabricated. He submits that if the petitioner would have been diligent and performed his duty with utmost caution, this loss could have been averted. He submits that since the petitioner did not perform his duty in proper manner nor made any inspection of the original records, it can be

presumed that he was also a part of the conspiracy.

12. I have heard counsel for the parties and have gone through the entire records. The prosecution case has already been stated above. The police, after investigation, filed charge sheet. The role of each of the accused has been specifically mentioned in the said charge sheet. Counsel for the CBI also relies on the said document, which is at page 39 of the brief. Serial No. 4 at page-40 relates to the petitioner, who is a panel lawyer of the Bank. Material surfaced against him during investigation and his role is mentioned there. It is necessary to quote Sl. No. 4 at page-40 of the brief to show as to what has surfaced against him during investigation, which has been reflected in the charge sheet against this petitioner, which is as follows:-

"4. Kailash Kumar Agarwal, empanelled Advocate:-

Kailash Kumar Agarwal, empanelled Advocate of the Bank, in criminal conspiracy with others, submitted false legal opinion report in respect of Sale Deed No. 3416 dated 14.05.1986 and Sale Deed No. 1117 dated 23.02.1988. He dishonestly and fraudulently recommended in his report that the sale deeds alongwith mutation correction slips and rent receipts are genuine and valid mortgage can be created whereas the said sale deeds including mutation correction slips have been found forged ruing investigation".

13. The aforesaid is the only material, which surfaced against this petitioner during investigation.

14. The petitioner, who happens to be the empanelled Advocate, is sought to be implicated in this case on the basis of legal opinion given by him, which is alleged to be based on false documents, i.e. the false ownership papers etc. On this basis, it is said that he was a part of the conspiracy. There is nothing on record to suggest what are the elements which establishes conspiracy. Merely mentioning of the work "conspiracy" is not enough. What are the factual materials to attract conspiracy should be reflected in the charge sheet. In this case the same is missing. The Hon'ble Supreme Court in the case of "Central Bureau of Investigation- versus- K. Narayana Rao, reported in (2012) 9 SCC 512", has held that the criminal liability against an advocate, who gives an opinion, arises only when the lawyer was an active participant in a plan to defraud the Bank. Criminal offence has to be committed by the lawyer himself. It is necessary to quote Para-30 & 31 of the aforesaid judgment of Hon'ble Supreme Court, which is quoted herein below:-

"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 charge 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 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".

15. The Hon'ble Supreme Court in the aforesaid judgment, in Para-24 has also in details discussed as to what are the ingredients of the offence of criminal conspiracy and what type of act would attract criminal conspiracy. It is also necessary to quote Para-24 of the aforesaid judgment, which is quoted herein below:-

"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have committed, it must be clear that they were so omitted in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inference from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and

acceptable evidence".

16. Keeping in view the aforesaid judgment and observation of the said judgment, if the role of the petitioner is scrutinized (the role has already been indicated above as mentioned in charge sheet), I find that there is no evidence of abetting or aiding the conspiracy to defraud the Bank. At best, it can be said that this petitioner has not performed his duties diligently or he was negligent in his work. The recording in the charge sheet about the involvement of the petitioner also suggests that there is no evidence to conclude that he had taken active part and there was meeting of minds between this petitioner and other co-accused. This factual aspect is missing in the charge sheet.

17. Considering the aforesaid judgment and the facts, which surfaced from the charge sheet and the arguments, I find that this criminal revision petition deserves to be allowed. Accordingly, this application stands allowed. The impugned order dated 06.02.2018, passed in R.C. Case No. 06(S)/2014-EOW-R, registered for committing an offence under Sections 419, 420, 467, 468, 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, pending before the Special Judge, CBI, Ranchi, is hereby quashed and set aside. The petitioner is discharged of the offences.

I.A. No. 8057 of 2019 Since the revision application of the petitioner has been allowed by this Court, this interlocutory application also stands disposed of in terms of the order passed aforesaid.

(Ananda Sen, J) Mukund/-cp.3