Smt S Dhanalakshmi vs State Of Karnataka By
2022 Latest Caselaw 3761 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 5TH DAY OF MARCH, 2022

                       BEFORE

     THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

         CRIMINAL PETITION No.9643 OF 2021

BETWEEN

SMT. S. DHANALAKSHMI
W/O. M. KRISHNAMURTHY
AGED ABOUT 60 YEARS
R/AT. NO.522, INDRANI NIVASAM
NEW BUS STAND ROAD
DODDABALLAPURA - 561 203              ... PETITIONER

[BY SRI. T.PRAKASH, ADV.]

AND

1.    STATE OF KARNATAKA BY
      DODDABALLAPURA TOWN POLICE
      DODDABALLAPURA DISTRICT
      REPRESENTED BY PUBLIC PROSECUTOR
      HIGH COURT BUILDING
      BENGALURU - 560 001

2.    SRI. MARUTHI KONDOJI
      MANAGER,
      STATE BANK OF INDIA
      D CROSS, DODDABALLAPURA TOWN
      DODDABALLAPURA - 561 203
                                 ... RESPONDENTS

[BY SMT. YASHODA K.P., HCGP FOR R1;
    R2 - SERVED]
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      THIS CRIMINAL PETITION IS FILED UNDER SECTION
482 OF CR.P.C., PRAYING TO QUASH THE FIR VIDE
ANNEXURE-A REGISTERED IN PURSUANCE OF THE
COMPLAINT VIDE ANNEXURE-B IN CR.NO.30/2020 OF
DODDABALLAPURA TOWN POLICE STATION, FOR THE
ALLEGED OFFENCE P/U/S 406, 420 AND 486 OF IPC
PENDING ON THE FILE OF ADDITIONAL CIVIL JUDGE AND
J.M.F.C., (JR.DN.) AND J.M.F.C., DODDABALLAPURA,
BENGALURU RURAL DISTRICT, SO FAR AS THIS PETITION
IS CONCERNED (A-2).

    THIS CRIMINAL PETITION COMING ON                   FOR
ADMISSION THIS DAY, THE COURT MADE                     THE
FOLLOWING:

                           ORDER

The petitioner is before this Court calling in

question the proceedings in Crime No.30/2020

registered for offences punishable under Sections 406,

420 and 468 of IPC.

2. Heard Sri. T.Prakash, learned counsel

appearing for the petitioner, Smt.Yashoda K.P., learned

HCGP for respondent No.1.

3. Brief facts leading to the filing of the present

petition, as borne out from the pleadings, are as follows:

Accused No.1/Nagaraju applies for a loan in the

complainant Bank/State Bank of India, Doddaballapura

Town Branch. The loan was sanctioned with a

collateral security being given by the said borrower.

Prior to sanctioning of the loan, papers of the property

had been forwarded to the petitioner, a counsel on the

panel of the State Bank of India. The petitioner had

scrutinized the documents that were furnished and had

tendered her opinion that it was a property that could

be taken as collateral security. Based on the said legal

opinion, inter alia, loan amount of Rs.78,40,000/-

appears to have been sanctioned to accused

No.1/Nagaraju. The said accused defaulted in payment

of loan. This led to registration of a crime by the

respondent/Bank in Crime No.30 of 2020 for offences

punishable under Sections 406, 420 and 468 of the IPC.

The petitioner, who had tendered her legal opinion,

based upon the documents that were furnished by the

Bank, was arrayed as accused No.2. The allegation

against the petitioner/accused No.2 was that she had

furnished her opinion on improper scrutiny of

documents which led to grant of loan to accused No.1.

On registration of the crime in Crime No.30 of 2020, the

petitioner has knocked the doors of this Court with the

subject petition.

4. The learned counsel appearing for the

petitioner submits that the petitioner has about

35 years of experience at the bar and in like cases

whatever documents that were furnished to her and

even a document which was pertaining to a day prior to

giving of the opinion, were all looked before tendering

the opinion. He would submit that the opinion tendered

by a legal counsel or a panel Advocate cannot become

subject matter of criminal case of cheating. The

respondent/Bank though served is unrepresented.

5. I have given my anxious consideration to the

submissions made by the respective learned counsel

and perused the material on record.

6. The afore-narrated facts are not in dispute.

The opinion tendered by the panel counsel was not the

only factor that led to grant of loan to accused No.1, but

one of the factors. Legal counsel or a panel advocate

tendering opinion is on the basis of documents that are

furnished to him/her. The opinion tendered by the

panel counsel cannot become a subject matter of crime

is what the Apex Court has held in the case of Central

Bureau of Investigation, Hyderabad vs. K. Narayana

Rao - (2012) 9 SCC 512, wherein the Apex Court holds

as follows:

"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 committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences 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.

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."

In the light of the judgment of the Apex Court, the

crime that is registered against the petitioner would not

hold water and cannot be permitted to continue. This is

not a case of conspiracy against the counsel or

conniving with the borrower which resulted in grant of

loan. Therefore further proceedings, if permitted to

continue would become an abuse of the process of law

and result in miscarriage of justice.

7. For the aforesaid reasons, the following:

ORDER

i. Criminal Petition is allowed.

ii. The FIR registered in pursuance of the complaint in Crime No.30/2020 of Doddaballapura Town Police Station, pending on the file of Additional Civil Judge (Jr.Dn.) and J.M.F.C., Doddaballapura, Bengaluru Rural District stands quashed.

Sd/-

JUDGE

KG