Mohammed Khasim, Nizamabad vs State Of Telangana, Rep. By P.P., ...
2022 Latest Caselaw 4257 Tel

       HON'BLE SRI JUSTICE A.SANTHOSH REDDY

           CRIMINAL PETITION No. 11534 of 2014
ORDER:

This Criminal Petition is directed under Section 482 Cr.P.C

for quashing the proceedings against the petitioner/ A-1 in Crime

No.9 of 2014 of Bodhan Police Station, Nizamabad District

registered for the offences under Sections.199, 200, 416 and 419

IPC.

2. Heard learned counsel for the petitioner and heard learned

Assistant Public Prosecutor appearing on behalf of respondent-

State. None represented the second respondent. Perused the

material record.

3. The second respondent in his complaint alleged that he is the

president of Managing Committee of Nade-Ali Masjid situated at

Bodhan. He was appointed as a president of the Managing

committee of the said Masjid through proceedings bearing

F.No.7750/NZB/L/2008/suppl/Z-11, dated 23.07.2013, apart from

other work and functions, it is also the responsibility of the

president to look after and to manage the conditional service Inam 2 ASR,J crlp_11534_2014

land attached to the said Mosque. The lands admeasuring Ac.213

guntas, in survey No.693, Douthiya, Tarfa Bodhan,

Ac.1-02 guntas, Douthiya Tafa Bodhan in Sy.No.537, Ac.5-35

guntas in Sy.No.665/1, 2, 3 situated at Belal Tarfa Bodhan are

attached to the land of the said Mosque. It is alleged that one

Riyazuddin (A-2) and Smt.Safiya Begum (A-3) are related to each

other. Though, they are neither Inamdars nor mutawallies of the

said Mosque, they abetted A-1 without having any rights or interest

falsely representing themselves to be Inamdars that they made

application before the Revenue Divisional Officer (R.D.O.),

Bodhan to issue occupancy certificate in their name in respect of

above mentioned lands. It is also alleged that the said persons

colluded with A-1 and conspired and made a representation before

the R.D.O., Bodhan to the effect that A-1 is the standing counsel

for Andhra Pradesh Wakf Board, Nizamabad and obtained legal

opinion from the petitioner and on the false representation before

the R.D.O., Bodhan through letter dated 01.03.2010 sought advice

from A-1 in the capacity of Standing Counsel of A.P.Wakf Board,

Nizamabad. On knowing the same, the second respondent 3 ASR,J crlp_11534_2014

obtained information with regard to the fact of Standing Counsel of

the petitioner through an application dated 06.07.2013 from the

Chief Executive Officer of Wakf Board, Hyderabad. In response

to the same, the C.E.O. Wakf Board, Hyderabad furnished copy of

complaint dated 31.10.2013 addressed to the Inspector of Police,

Bodhan stating that the petitioner at no point of time is appointed

as Standing counsel of Wakf Board, Nizamabad. Though he was

not the standing counsel, he gave opinion basing on which, the

R.D.O. Bodhan issued O.R.C. on the said lands to the said persons.

It is alleged that the petitioner with malafide intention, colluded

with said persons illegally though he was not the Standing Counsel

created false document of legal opinion and cheated with

impersonation to the Wakf Board and Managing committee of

Nade Ali Masjid Bodhan. Basing on the said allegations, the S.I.

of Police, Bodhan registered a case in crime No.9 of 2014 for the

aforesaid offences against the petitioner/A-1. Being aggrieved, the

present petition is filed under Section 482 Cr.P.C. to quash the

proceedings.

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4. Learned counsel for the petitioner submits that the petitioner

was engaged as counsel by the Chief Executive Officer, A.P.State

Wakf Board on behalf of Wakf Board and he has filed vakalat in

most of the cases at Nizamabad. He further submits that the

petitioner has given said opinion as practicing Advocate and he

was under the bonafide impression that he is the Standing counsel

for the Wakf Board, Nizamabad District. The second respondent is

enemically disposed off against the petitioner and has falsely

implicated in this case. The allegations do not, prima facie,

constitute any offences, much less, the alleged offences.

Therefore, he prayed to allow the petition and quash the

proceedings. He relied on the judgments of Central Bureau of

Investigation v. K.Narayana Rao1 and Surendra Nath Pandey

v. State of Bihar.2

5. Learned Assistant Public Prosecutor submits that the

allegations of the complaint/F.I.R., prima facie, constitute the

alleged offences and therefore, prayed to dismiss the petition and

permit the Investigating Agency to proceed with the investigation.

1 (2012) 9 Supreme Court Cases 512 2 (2020) 13 Supreme Court Cases 730 5 ASR,J crlp_11534_2014

6. So far as rendering legal opinion by Advocates, in Central

Bureau of Investigation's case (1 supra), the Hon'ble Apex Court

at para Nos.30 and 31 held as under:

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 charged 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.

7. The petitioner is a practicing Advocate in civil and criminal

Courts of Nizamabad District. The R.D.O.Bodhan has sought legal

opinion from the petitioner vide letter dated 01.03.2010 stating that

inter alia whether the request of the applicant Smt.Safiya Begum

for issuance of O.R.C. stating that it is the Mafi Inam and furnish

all the documents and requested to give legal opinion as to whether 6 ASR,J crlp_11534_2014

the O.R.C.can be issued to the applicant or not. The petitioner gave

legal opinion dated 15.03.2010.

8. The main allegation against the petitioner is that though he

was not appointed as Standing Counsel of Wakf Board,

Nizamabad, in collusion with one Riyazuddin (A-2) and

Smt.Saifya Begum (A-3) and at their instance, the R.D.O. called

for legal opinion from him stating that he is the Standing Counsel,

A.P.Wakf Board Standing Counsel, Nizamabad in order to knock

away the services of Inam lands attached to the Nade Ali Masjid

situated at Bodhan. The second respondent alleged that the

petitioner was at no point of time appointed as Standing Counsel of

Nizamabad Wakf Board, but he has given legal opinion to the

R.D.O.Bodhan and basing on the same, the R.D.O. issued O.R.C.

for the lands aforementioned in favour of the said persons. It is also

alleged that the petitioner with malafide intention colluded with

said persons created false document of legal opinion and cheated

with impersonation to the wakf board and managing committee of

Nade Ali Masjid.

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9. The petitioner has filed copies of vakalats signed by the

Chief Executive Officer, A.P.Wakf Board engaging his services to

appear in various Courts in Nizamabad District to appear on behalf

of Wakf Board in the litigations pending between the private

parties and Wakf Board. Undisputedly, rendering legal opinion is a

important component for Advocates. In the instant case,

prima facie, there is no material to show that the petitioner himself

approached the R.D.O. by impersonating himself or making false

representation that he is the standing counsel of Wakf Board.

However, under the bonafide impression that he has been

authorized by the A.P.Wakf Board to appear in cases pending

before the Courts at Nizamabad and the C.E.O. signing vakalats

authorizing the petitioner to appear before Courts and keeping the

circumstances in view, under the bonafide impression even the

R.D.O. might have asked the opinion of the petitioner, which

cannot be ruled out.

10. The offences alleged against the petitioner are mainly under

Sections 416 and 419 IPC, which are extracted as under:

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      Section 416 IPC: Cheating by personation:

A person is said to "cheat by personation" if he cheats by pretending to be some other person, or by knowingly substituting one person for or another, or representing that he or any other person is a person other than he or such other person really is.

The proceeding Section 415 Cheating defines a particular specie of cheating which is an aggravated form of ordinary or simple cheating. The offence under this section is committed if the accused pretended to be some other person; or knowingly substituted one person for another; or represented that he or any other person is a person other than he, or such other person, really is.

Section 419 IPC: Punishment for cheating personation:

Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

11. In the instant case, there is no specific allegation made

against that the petitioner himself approached the R.D.O. and

impersonated as the Standing Counsel of the Wakf Board of

Nizamabad. As per the documents filed by the petitioner, it is

emerged that since the petitioner has appeared on behalf of the

A.P.Wakf Board in most of the cases, it might have lead the

R.D.O. to presume and under the impression that he is the Standing

Counsel of Wakf Board, Nizamabad, had sought for his advice.

Except that there is no allegation to show that the petitioner

impersonated some other person and made any false representation

intentionally substituted any other person or represented any 9 ASR,J crlp_11534_2014

person with dishonest intention and committed any fraudulent act.

Since the averments of Section 416 IPC are missing in the

allegations of the complaint, they do not prima facie attract any of

the ingredients of said offence under Section 416 IPC. Therefore,

the allegations of the complaint are not specific to show that the

petitioner personated himself to be some other person or

intentionally substituted or represented any other person

fraudulently or dishonestly induce the person so deceived and

caused wrongful loss. Since the essential ingredients of the offence

are missing in the complaint, prima facie, no offence is made out

under Section 419 IPC. Apart from that, there are also no

allegations against the petitioner attracting the ingredients of the

other offences under Sections. 199 and 200 IPC.

12. For the foregoing reasons, since the petitioner is an

Advocate and the allegations of the complaint, prima facie, do not

constitute any of the alleged offences, the continuation of further

proceedings and subjecting the petitioner to undergo rigmarole of

the trial would be an abuse of process of law. Therefore, it is a fit 10 ASR,J crlp_11534_2014

case to invoke the powers under Section 482 Cr.P.C. and quash the

proceedings against the petitioner.

13. In the result, the Criminal Petition is allowed. The

proceedings against the petitioner/A-1 in Crime No.9 of 2014 of

Bodhan Police Station, Nizamabad District, are hereby quashed.

Miscellaneous petitions pending, if any, shall stand closed.

                                         ______________________
                                         A.SANTHOSH REDDY, J

24.08.2022
Nvl
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