Karnataka High Court

Shri.Ravindra R. Mane vs The State Of Karnataka on 13 January, 2022

Bench: M.Nagaprasannapresided Bymnpj

              IN THE HIGH COURT OF KARNATAKA
                      DHARWAD BENCH


           DATED THIS THE 13TH DAY OF JANUARY 2022


                            BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA


            WRIT PETITION NO.111740/2019 (GM-RES)

BETWEEN:

SHRI RAVINDRA R. MANE
AGE: 59 YEARS, OCC: ADVOCATE,
R/O: RASIKA APARTMENTS,
TILAKWADI, BELAGAVI-590006.

                                               ...PETITIONER.

(BY SHRI SHREEVATSA HEGDE, ADVOCATE.)


AND:

1. THE STATE OF KARNATAKA
   R/BY THE ADDITIONAL
   GOVERNMENT PLEADER,
   HIGH CURT OF KARNATAKA,
   DHARWAD.

2. THE MANAGER
   BANK OF INDIA,
   BRANCH-HALAGA,
   TQ AND DIST: BELAGAVI.

                                             ...RESPONDENTS.

(BY SHRI PRAVEEN K. UPPAR, HCGP, FOR R.1;
SHRI S.K.KAYAKAMATH, ADVOCATE, FOR R.2.)
                                 2




     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA, 1950, READ WITH SECTION 482 OF THE
CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO:

      A)   QUASH THE CHARGE SHEET AND ALL PROCEEDINGS
AGAINST THE PETITIONER ARISING OUT OF THE FINAL
REPORT/CHARGE SHEET FILED BY THE HIREBAGEWADI POLICE IN
FIR NO.104/2012, IN CC (NEW) NO.262/2017(OLD NO.) (ERSTWHILE
CC NO.1369/2016) PENDING ON THE FILE OF V ADDL.CIVIL JUDGE &
JMFC, BELAGAVI, VIDE ANNEXURE-D;

     B)   DIRECT THE RESPONDENBTS TO PAY SUITABLE
COMPENSATION TO THE PETITIONER FOR THE FALSE CHARGES
BROUGHT AGAINST HIM, ETC.,.

    THIS PETITION COMING ON FOR PRELIMINARY HEARING B-
GROUP THIS DAY, THE COURT PASSED THE FOLLOWING:


                              ORDER

The petitioner - accused No.8 is before this Court calling

in question the charge sheet in FIR No.104/2012 and the

proceedings in C.C.No.262/2017 (new)/ C.C.No.1369/2016(old),

pending on the file of V Addl. Civil Judge and JMFC, Belagavi.

2. Heard Shri Shreevatsa Hegde, learned counsel for

the petitioner, Shri Praveen K. Uppar, learned High Court

Government Pleader for respondent No.1 - State and

Shri S.K.Kayakamath, learned counsel for respondent No.2.

3. The facts that lead to the dragging of the accused

into these proceedings are that, a loan was advanced by Bank of

India, Belagavi branch in favour of one Kareppa Satteppa

Bairannavar on 09.12.2006 for an amount of Rs.3,50,000/-

against mortgage of a particular property. The said borrower

defaulted in repayment, which lead to a complaint being

registered by the then Manager of the Bank on 14.06.2012.

The complaint reads as follows:

"From, Shri. P. Ravi Nagaprasad Branch Manager, Bank of India Branch Halagar, Tq: Dist: Belgaum.

To, The Police Sub Inspector, Hirebagewadi, Police Station.

Sir, I am working as a Manager in Bank of India, Branch Halaga since 15-06-2011. I hereby inform you that one Kareppa Satteppa Bhairannavar who was serving in Revenue Department at Belgaum has approached our Bank on 09-12-2006 by seeking the home loan facility of Rs.3,50,000/- and for incidental expenses. The said Kareppa Bairannavar informed our branch that he wanted to purchase a house property in Bharat Nagar, Belgaum and for which he needs the financial assistance from our Bank.

Accordingly, the said Kareppa Bairannavar submitted documents for the purpose of said loan. The said Kareppa has placed before us a document said to be an agreement of sale dated: 21-10-

2004. On going through the same, it is revealed

that the three persons by name 1) Prahalad Narayan Melage, 2) Mohan Narayan Melage, and 3) Smt. Geeta M. Shinde, agreed to sell their property bearing Municipal house No.55 (Ground Floor - 12' x 27'5" and First floor - 12'x27'5") out of CTS No.2292 situated in Bharat Nagar, Ilnd Cross, Shahapur Belgaum to the said Kareppa Bairannavar. After compliance of necessary procedures, we decided to give him the loan.

Further, the Kareppa Bairannavar has placed a sale deed bearing No.6928/04-05 dated: 13-12- 2004 before our bank on 13-12-2004. The said sale deed shows that the aforesaid three persons by name, Melage and others have executed a sale deed in favour of Kareppa in respect of the above property. It is said to be executed on 09-12-2004 and registered on 13-12-2004 in the office of Sub Register, Belgaum. Our Bank dispersed the loan amount through DD dated: 09-12-2004 from the loan account of Kareppa bearing No.TLN-286. Thereafter, the Kareppa Bairannavar has mortgaged the above property in favour of our Bank by way of equitable mortgage towards the security of for the said loan. One Kathalsab Mohammedhasham Mirajkar stood as guarantor of Kareppa for the said loan.

Further, the said Kareppa has not made the repayment of his loan to our bank and his account is treated as NPA (Non Productive Asset). Necessary action is initiated against his property that mortgaged to our bank.

These being the facts, our bank official went to Bharat Nagar, Ilnd Cross, of Belgaum on 11-08- 2010 for inspection of the mortgaged property. Our bank Official Mr.P.S.R. Subramanyam found that the house property as described in the sale deed is locked. On inquiry with the neighbourers, he was informed that the said house is owned by one

Aplpasaheb Hanumant Kadam and his son - Gopi is residing therein. Our official further found that the said house is a house with tile roof, but the sale deed shows same is of two storied. Our official further enquired with the neighbourers regarding whereabouts of the vendors - Melage and others by showing their photographs in the sale deed.

The neighbourers told him that the said photographs are not that of the actual Mohan and Prahalad Melage and the said Geeta M. Shindhe. By securing the residential addresses of those persons, our said official met them. The said persons have told our official that they never sold there property bearing H.No.555 out of CTS No.2292 of Bharat Nagar to anybody. They have also given their identity proofs such as, election identity cards, pan cards and ration cards to our official. After comparing the said documents with the sale deed, our official came to know that the persons whose photographs appeared in the sale deed are not the actual persons by name, 1) Mohan Narayan Melage, 2) Prahalad Narayan Melage, and 3) Geeta M. Shindhe. Through this, the bank came to know about the illegal act committed by Kareppa Bairannavar and came to know about the illegal act committed by Kareppa Bairannavar and aforesaid three-proxy persons personating themselves as Melage and others.

Our bank officials tried to meet Kareppa Bairannavar, but he always attempted to escape from us. We further came to know that the said Kareppa Bairannavar died on 20-02-2011 when he was last serving in the office of SLAO, Hidakal Dam.

The aforesaid three persons falsely called themselves as 1) Mohan Narayan Melage, 2) Prahalad Narayan Melage, and 3) Geeta M. Shindhe colluding with Kareppa Satteppa Bairannavar and guarantor Kathalsab Mirajkar have cheated our

bank by personating themselves as the real owners of the property. All of them colluded with each other and with an intention to cause wrongful loss to our bank in order to make unlawful gain, have illegally induced our bank to grant them loan on the basis of forged documents. They have forged the sale deed bearing No.6928/04-05 dated: 13-12- 2004 and used it as genuine for securing the loan from our bank. The said document is produced in our branch at Halaga by showing it as genuine and thereby committed an offence in our branch at Halaga. Our bank is put to heavy loss because of the illegal acts committed by the aforesaid persons with an intention to dupe our bank.

We have made our efforts to search the guarantor -- Kathalsab and three others and also informed this fact to our higher bank official and sought their instructions. Hence, there is a delay in lodging this complaint.

Therefore, I request you to initiate the necessary criminal action against aforesaid three proxy persons and the guarantor - Kathalsab Mohmedhasem Mirajkar and kindly investigate into the matter.

Thanking You Sir,

Place: Belgaum Date: 16/06/2012

4. The narration in the complaint makes it clear that

the aforesaid borrower, serving in the Revenue Department of

Belagavi district had approached the Bank on 09.12.2006,

seeking home loan facility of Rs.3,50,000/- and other incidental

expenses. The property papers were pledged by the said

borrower before the Bank. A sale deed was brought to the

notice of the Bank, which was dated 21.10.2004. The said sale

deed was indicative of the fact that three persons were ready to

sell the property to the borrower and on perusal of those

documents that were placed by the borrower were sent for an

opinion to the petitioner. The petitioner on the basis of eight

enclosures tendered his opinion on 27.11.2004. The loan was

advanced on 09.12.2006, two years after the petitioner had

furnished his opinion. The opinion of the petitioner after scrutiny

of the documents placed before him is as follows:

"In view of the above observations, I have to opine as under:

(A) The title of the vendors to the property bearing CTS No.2292, measuring 12' x 27.5' = 330 sq.ft., out of Municipal House No.55, situate at Bharat Nagar, Shahapur, Belgaum, is clear and marketable. When purchased by the applicant, the applicant will get a clear and marketable title thereto.

(B) On purchasing the said property, the applicant will be competent to create and equitable mortgage of the said property by depositing with the Bank, the original sale deed executed by the vendors and their sister in his favour, as a security for the repayment of the loan that might be sanctioned to him.

(C) No minor's interests are involved in the said property.

Hence the opinion as above.

Thanking you,"

5. In terms of the afore-extracted opinion, the

petitioner only indicated that the property had a marketable

title. If and when the borrower would purchase the property

and on purchase of the said property, the same shall be taken

as mortgage. The afore-extracted opinion was rendered at the

time when the borrower had not even purchased the property

and there was no sale deed executed for the petitioner to tender

an opinion.

6. The sale deed itself is executed on 09.12.2004.

Therefore, the petitioner had no occasion to comment on the

sale deed said to have been executed after tendering of the

opinion. The complainant no where narrates that the loan was

advanced to the borrower only on the basis of opinion tendered

by the petitioner. As a matter of fact, the name of the petitioner

or the opinion tendered is not even mentioned in the complaint.

7. The Bank - complainant is alleging that the

borrower along with 3 others had hoodwinked the Bank by

placing the documents belonging to a different property.

Therefore, it is a matter between the Bank and the borrower.

Petitioner who has tendered his opinion on the strength of the

documents also took support of the official valuer, who claimed

to have visited the site. Therefore, no fault can be laid at the

hands of the petitioner, much less, an offence punishable under

Section 420 of the IPC.

8. It is also germane to notice the judgment of the

Apex Court in the case of CBI, HYDERABAD VS. NARAYAN

RAO reported in (2012) 9 SCC 512, wherein the Apex Court

holds as follows:

"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."

9. Therefore, in the light of the afore-narrated facts

and circumstances and the law laid down by the Apex Court in

the afore-extracted judgment, further proceedings against the

petitioner, if permitted, would be an abuse of the process of law

and result in miscarriage of justice. In my considered view, it is

a fit case where the jurisdiction under Section 482 of Cr.P.C.

should be invoked and further proceedings against the petitioner

should be obliterated.

10. For the aforesaid reasons, the following:

ORDER

(i) The Criminal Petition is allowed.

(ii) The charge sheet in Crime No.104/2012 of