Kerala High Court
P.Venugopalan vs The Station House Officer on 15 November, 2024
Author: P.V. Kunhikrishnan
Bench: P.V.Kunhikrishnan
2024:KER:86025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
CRL.MC NO. 2552 OF 2019
CRIME NO.655/2012 OF KASARAGOD POLICE STATION, KASARGOD
AGAINST THE ORDER DATED IN CC NO.407 OF 2018 OF CHIEF
JUDICIAL MAGISTRATE ,KASARAGOD
PETITIONER/ACCUSED NO.3:
RAJAGOPAL.A
AGED 59 YEARS
ADVOCATE, S/O.A.V.SHANBHAUGH, ROHINI, NEAR SPORTS
PAVILION, THALIPADU, KASARAGOD- 671 121.
BY ADVS.
M.SASINDRAN
SRI.SATHEESHAN ALAKKADAN
RESPONDENTS/COMPLAINANT & STATE:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM- 682 031.
2 THE STATION HOUSE OFFICER,
(CRIME NO.655 OF 2012 OF KASARAGOD POLICE
STATION), KASARAGOD- 671 121.
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2
OTHER PRESENT:
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 15.11.2024, ALONG WITH Crl.MC.2362/2019, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
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CRL.MC Nos.2552 OF 2019 & 2362 OF 2019
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
FRIDAY, THE 15TH DAY OF NOVEMBER 2024 / 24TH KARTHIKA, 1946
CRL.MC NO. 2362 OF 2019
CRIME NO.655/2012 OF KASARAGOD POLICE STATION, KASARGOD
AGAINST THE ORDER DATED IN CC NO.407 OF 2018 OF CHIEF
JUDICIAL MAGISTRATE ,KASARAGOD
PETITIONER:
P.VENUGOPALAN
AGED 68 YEARS
S/O. KUNJIKRISHNAN NAIR, VARDHAN, MOOKAMBIKA
NAGAR, AMBIKA ROAD, PALLIKUNNU, KANNUR - 670 004
BY ADVS.
GEORGE CHERIAN (SR.)
SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
RESPONDENTS:
1 THE STATION HOUSE OFFICER
KASARGODE POLICE STATION, KASARGODE
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR
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CRL.MC Nos.2552 OF 2019 & 2362 OF 2019
4
BY ADV.
SRI.SANGEETHARAJ.N.R, PP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 15.11.2024, ALONG WITH Crl.MC.2552/2019, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
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CRL.MC Nos.2552 OF 2019 & 2362 OF 2019
5
P.V. KUNHIKRISHNAN, J.
-----------------------------------
Crl.M.C.Nos.2552 & 2362 of 2019
-----------------------------------
Dated this the 15th day of November, 2024
COMMON ORDER
These two cases are connected and therefore,
I am disposing of these two cases by a common order.
The petitioner in Crl.M.C No.2362/2019 is the 2 nd
accused in CC No.407/2018 on the files of Chief
Judicial Magistrate Court, Kasargod. The petitioner
in CC No.2552/2019 is the 3rd accused in the above
case. It is a prosecution initiated against the
petitioners and others alleging offences punishable
under Sections 468, 471 and 420 of the Indian Penal
Code.
2. The petitioner in Crl.M.C No.2552/2019
is a lawyer and the petitioner in Crl.M.C
No.2362/2019 is a retired Manager of Central Bank.
According to the petitioners even if the entire
allegations against the petitioners in the final
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report are accepted in toto, no offence is made out
against the petitioners.
3. Heard the learned counsel for the
petitioners and the Public Prosecutor.
4. The final report filed by the police
against petitioners and other accused was with
following allegations.
Charge u/s 468, 471, 420 IPC:- 22.12.05 തീയതി
കാസറഗോഡ് കസബ ഗ്രാമത്തിൽ സെൻട്രൽ ബാങ്ക് ഓഫ്
ഇന്ത്യ കാസർഗോഡ് ബ്രാഞ്ചിൽ നിന്ന് ഭവന വായ്പ
എടുക്കുന്നതിന് വേണ്ടി 1-כo പ്രതി രണ്ടാം സാക്ഷിയുടെ
ഉടമസ്ഥതയിലുള്ള കോയിപ്പാടി ഗ്രാമത്തിൽ RS No.457/1A
എന്ന സ്ഥലത്തിന്റെ രേഖയും ലോൺ ലഭിക്കാൻ വേണ്ട മറ്റു
അനുബന്ധരേഖയും വ്യാജമായി നിർമ്മിച്ച് അസ്സൽ
രേഖകൾ പോലെ ബാങ്കിൽ സമർപ്പിച്ച് 2-ഉം 3-ഉം
പ്രതികളുടെ ഒത്താശയോടെ 1-כo പ്രതി ബാങ്കിൽ നിന്ന് 4
ലക്ഷം രൂപ ഭവന വായ്പ്പയായി എടുത്ത് 1-כo പ്രതി
197354 രൂപയും പലിശയും തിരിച്ചടയ്ക്കാതെ ബാങ്കിനെ ചതി
ചെയ്തതായി വ്യക്തമായി വെളിവായിരിക്കയാൽ പ്രതികൾ
ഇ.ശി.നി 468, 471, 420 വകുപ്പുകൾ പ്രകാരം ഉള്ള
ശിക്ഷാർഹമായ കുറ്റം ചെയ്തിരിക്കുന്നു ."
5. The prosecution case is that, a loan
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is availed by one of the accused by producing fake
and fabricated documents. The Branch Manager of
Central Bank of India, submitted a complaint to the
Sub Inspector of Police, Kasaba Police Station on
25.05.2012. It is alleged in the complaint that one
Mr.Surendra Kumar availed a housing loan for
construction of a house from the bank mortgaging
fake and fabricated document of title purported to
be owned by him in Koyipady Village in the year
2005. In the complaint, it is stated that the fraud
has come to the light on verification of the
property reported to be owned by the borrower
following the loan account became Non-Performing
Asset(NPA). On verification, it was found that there
is no such property in Survey No.457/1A with the
boundaries shown in the schedule and that no house
could be located, which was reported to have
constructed with the finance of the bank. The bank
contacted the village officer concerned who
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reportedly issued the possession certificate, land
tax receipt, location map etc and was confirmed
about the non issuance of any such certificates
produced. The bank also contacted the Tahsildar,
Kasaragod, to verify the genuineness of the patta
through which the borrower reported to have derived
the title issued by the land assignment Tahsildar by
issuing a copy thereon, who in turn confirmed that
no records are available with them or having issued
the said patta mortgaged to the bank with an extent
of 30 cents in Survey No.457/1A in Koyipady Village.
Hence, it is alleged that the miscreants had
committed the misdeed with a clear and malicious
intention of defrauding the bank. Hence, the bank
submitted the complaint for taking action against
the person who availed the loan. The final report is
filed in which the petitioner in Crl.M.C
No.2362/2019, who is the then Manager and the
petitioner in Crl.M.C No.2552/2019, who is the
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lawyer who gave legal opinion are arraigned as
accused.
6. I will consider Crl.M.C No.2552/2019
first. Admittedly, the petitioner in this case is a
lawyer. The allegation against the petitioner is
that he gave legal opinion based on the documents
produced before him. He is only discharging his duty
as a lawyer while perusing the documents produced
before him. In effect, he gave legal opinion
regarding the documents produced before. In such
circumstances, I am of the considered opinion that a
lawyer who gave legal opinion is not liable to be
prosecuted. In Vazhuthacaud R.Narendran Nair V State
of Kerala [2024 (2) KHC 313], this Court observed
like this:
" 54. I have discussed above that the
legal scrutiny report contains reference
to documents prepared in June 2005, long
after the date of sanction of the loan.
This is sufficient to come to the
conclusion that the legal scrutiny
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report, which is the document relied on
by the prosecution to rope in the
petitioner with the conspiracy, was
prepared after the commission of the
crime. The prosecution has no case that
the petitioner prepared a wrong legal
scrutiny report. He opined on the
encumbrance or liability over the
property based on the encumbrance
certificate (Serial No.9 in the
documents) placed before him. He made it
clear that his opinion is subject to the
verification of the documents in
original. He advised the company to
collect and accept the original deeds and
other documents for creating equitable
mortgage.
55. The learned Special Government
Pleader submitted that the petitioner had
the knowledge regarding the design for
the commission of the offence by the
other accused. It is further submitted
that the circumstances made available
would point to the involvement of the
petitioner in the crime.
56. The prosecution failed to establish
the association of the petitioner with
the other accused in any of the acts
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which led to the commission of the
offences. The prosecution also failed to
establish the knowledge of the petitioner
regarding any of the design made by the
other accused in the commission of the
offences. There is no meeting of minds
with the petitioner. There is no iota of
evidence to infer that at a single point
of time the petitioner entered into an
agreement with the other accused in the
commission of the offences. The
prosecution has not produced any material
to establish that the petitioner had the
knowledge that the other accused had a
design for the commission of the alleged
offences. In all probability, this Court
has to conclude that the legal scrutiny
report was prepared after June 2005, that
is two months after the completion of the
offences. The circumstances relied on by
the prosecution to persuade this Court to
infer that the petitioner had a link with
the other accused, should be prior in
point of time than the actual commission
of the offence in furtherance of the
alleged conspiracy."
7. Similarly, in Santhosh.A v State of
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Kerala [2017(2) KHC 95], this Court observed like
this:
" 5. A lawyer who is acting on behalf of
the accused in a criminal case is based
on a fiduciary relationship. The trust
and faith constitute such relationship.
The advocate cannot be termed as an agent
of an accused. The relationship is
therefore, professional relationship
between a lawyer and a client. It does
not constitute any legal relationship
except for engagement as a lawyer for
acting on behalf of the accused.
Therefore, without there being a
relationship as such to constitute to
make it an involvement as part of
transaction, lawyer cannot normally be
implicated in a criminal offence, unless
there is an overt act alleging commission
of an act which would constitute an
offence. The commission of an act or
action on the part of an accused is
distinct from a lawyer who appearing for
him in a different capacity. Nothing has
been stated about overt act on the part
of the petitioner in creating a false or
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fabricated address. In that view of the
matter, the lawyer being not part of the
transaction, he cannot be implicated in a
criminal offence for an act done by his
client. The act on the part of the lawyer
must be part of the same transaction of
which accused alleged to have been
committed an offence. Since act of lawyer
is not the part of the transaction of
which alleged to have been committed,
this Court is of the view that
implicating him as an accused in the
crime is sheer abuse of process of Court.
Accordingly, proceedings as against the
petitioner is quashed. No costs."
8. Again, in Secretary to Advocate
General and Another v State Information Commissioner
and Another [2022(6)KHC 321], this Court observed
like this:
17. V. C. Rangadurai's case (supra) was
followed by the Apex Court in Jaipur
Vikas Pradhikaran v. Sri. Ashok Kumar
Choudhary and Others, 2011 KHC 4851. In
Santhosh A. (Adv.) v. State of Kerala,
2017 (2) KHC 95, this Court observed that
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a lawyer who is acting on behalf of the
accused in a criminal case is based on a
fiduciary relationship. The trust and
faith constitute such relationship. In
Himalayan Co - op. Group Housing Society
v. Balwan Singh and Others, 2015 (7) SCC
373, the Apex Court observed that one of
the most basic principles of the lawyer -
client relationship is that lawyers owe
fiduciary duties to their clients.
18. From the above discussions, it is
clear that the lawyer-client relationship
is a fiduciary relationship. There may be
delicate and confidential communications
between a lawyer and his client. All
communications between the lawyer and his
client are to be protected because these
communications are confidential. The same
is protected as per S.8(1)(e) of the Act
2005. The Advocate General is the advisor
of the Government. As I mentioned
earlier, there may be delicate and
sensitive issues, in which the Government
wants the opinion of the Advocate
General. Those are confidential
communications between the Government and
the Advocate General. The legal opinions
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given by the Advocate General to the
Government should always be confidential.
That is protected under S.8(1)(e) of the
Act 2005. If it is protected under S.8(1)
(e) of the Act 2005, the overriding
effect of S.22 of the Act to the Evidence
Act will also not be available. In such
circumstances, S.126 of the Indian
Evidence Act is also applicable as far as
a legal opinion given by the Advocate
General to the Government is concerned.
Therefore, I am not in a position to
agree with the orders passed by the State
Information Commission in these two writ
petitions to disclose the legal opinions
given by the Advocate General to the
Government. Therefore, these writ
petitions are to be allowed quashing the
orders passed by the State Information
Commission.
9. Again, in Thomas.A.V v State of Kerala
and Others [2013 KHC 672], this Court observed like
this:
" 16. This Court cannot ignore the
realities and the recent developments in
the legal profession. As an after effect
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of adopting the new policy based upon
globalization and liberalization, we can
see a new trend in the trade, commerce,
industries even in the agricultural
field and as part of the same, there are
several new enactments and arrival of
corporate personalities like company,
partnership firm etc. With this, not
only civil disputes, but also criminal
disputes and litigations have also
increased. Among the criminal cases, as
per the recent trend, white collar
offences are shooting up. Under the
above new scenario, the legal profession
also has got consequential growth from
its traditional limited sphere, of
course subject to exception. Thus,
besides appearing for the parties in the
Court for the conduct of cases, the
professional canvas got new
ramification. Inevitably, the Advocates
have got new contextual duties and
responsibilities based upon their
professional engagements. Therefore,
merely for the reason that an Advocate
has been legally engaged in a matter
based upon his professional capacity, he
shall not be dragged into criminal
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proceedings overlooking his professional
privilege and protection. In this
juncture, it is not out of context to
refer to Section 197 of the CrPC by
which protection is given to public
servant against unnecessary criminal
litigation and liability with respect to
an offence alleged if the same occurred
during the discharge of his official
duty. Such a protection is not available
for an Advocate, if the alleged offence
occurred, while discharging his duty or
responsibility on the basis of his
professional engagement. An Advocate,
who is keeping the dignity of the
profession, is an inevitable and
integral part of the judiciary. In such
circumstances, in order to invoke
criminal proceedings against an
Advocate, connected with an allegation
of committing any offence, which
allegedly occurred, while discharging
his professional duties, there must be
specific allegations and averments
supported by necessary factual inputs,
that such person exceeded his
professional engagement and committed
any overt act deliberately towards the
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commission of the alleged offence,
otherwise any Advocate, keeping the
dignity of the legal profession, can be
dragged into criminal proceedings,
overlooking the professional privilege
and protection of an Advocate. It goes
without saying that this privilege and
protection is not available to an
Advocate, who is involved in a crime,
independent of his professional status,
who had gone beyond his professional
engagement and committed the offences."
10. In the light of the above dictum, I am
of the considered opinion that the prosecution
against the lawyer for giving a legal opinion is
unsustainable. Therefore, Crl.M.C No.2552/2019 can
be allowed.
11. Crl.M.C No.2362/2019 is filed by the
Manager who was in charge of the bank at that
relevant time. It is submitted by him that the loan
was sanctioned and the accused was repaying the
amount regularly. It is also submitted that all
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documents in original was produced at the time of
availing the loan. He submitted that he has not
committed any offence and he processed the loan
application and sanctioned the loan. He was not
aware that the documents produced are fake and
fabricated, which cannot be detected at that point
of time. It is also submitted that there was no
occasion to doubt the honesty and dignity of the
borrower. This Court anxiously considered the
allegation in the final report and also the
complaint filed by the bank. There is nothing to
show that there is any collusion between the
petitioner along with the other accused to defraud
the bank, except the bald statement in the final
report that the petitioner is also involved. The
counsel for the petitioner relied the judgment of
Apex Court in Munna Prasad Verma v State of U.P and
Another [2022 KHC Online 6888]. The relevant portion
of the judgment is extracted hereunder:
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" 8. After we have heard learned counsel
for the parties and having gone through
the material on record with their
assistance, we are of the view that
there is no prima facie evidence on
record which implicate the present
appellants directly/indirectly connected
to the commission of crime. It is not
the case of the respondents that the
present appellants, in any manner, have
facilitated Brijendra Nath Mishra either
in creating or in fabricating the
alleged forged degree of B.Ed for
seeking compassionate appointment.
9. The present appellants are
implicated, being the members of the
Selection Committee, who relied on the
documents placed on record without any
verification on the assumption that the
documents being genuine, recommended his
case for appointment and because they
are the members of the Selection
Committee, that in itself would not, in
any manner, implicate them in the
commission of crime, in reference to
which the learned Magistrate has taken
cognizance and issued summons against
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them by an Order dated 4th August, 2009
in the instant proceedings, which, in
our view, would be nothing but a clear
abuse of the process of law."
12. As stated above, in this case also,
the prosecution has no case that the petitioner had
facilitated the main accused for creating or
fabricating the alleged whole document. In the light
of the above dictum and also in the facts and
circumstances of this case, I think the continuation
of prosecution against the petitioner in Crl.M.C
No.2362/2019 is also not necessary.
Therefore, these Criminal Miscellaneous Cases
are allowed in the following manner:
1. Crl.M.C No.2552/2019 is allowed. All
further proceedings against the petitioner in CC
No.407/2108 on the files of Chief Judicial
Magistrate Court, Kasaragod, arising from Crime
No.655/2012 of Kasaragod Police Station are quashed.
2. Crl.M.C No.2362/2019 is allowed. All
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further proceedings against the petitioner in CC
No.407/2108 on the files of Chief Judicial
Magistrate's Court, Kasaragod, arising from Crime
No.655/2012 of Kasargod Police Station are quashed.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SSG
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PETITIONER'S ANNEXURES
ANNEXURE 1 CERTIFIED COPY OF THE FIR IN CRIME NO.
FIR NO. 655/12 DATED 25/05/2012
ANNEXURE 2 CERTIFIED COPY OF THE FINAL REPORT
NO.918/17, DATED 29/10/2017
ANNEXURE 3 TRUE COPY OF THE A NOTICE UNDER SECTION
41(A) OF CR.P.C. DATED 09/08/2018
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PETITIONER'S ANNEXURES
ANNEXURE AI TRUE COPY OF THE FIR IN CRIME NO.655/2012
OF KASARAGOD POLICE STATION.
ANNEXURE AII TRUE COPY OF THE FINAL REPORT IN CRIME
NO.655/2012 OF KASARAGOD POLICE STATION.
