Telangana High Court
V. Narsinga Rao vs The State Of Telangana on 16 March, 2023
Bench: K.Surender
HIGH COURT FOR THE STATE OF TELANGANA
AT HYDERABAD
*****
Criminal Petition No.586 OF 2021
Between:
V.Narsinga Rao. ... Petitioner
And
The State of Telangana,
Rep. through Public Prosecutor,
High Court for the State of Telangana,
Hyderabad and another ... Respondents
DATE OF JUDGMENT PRONOUNCED: 16.03.2023
Submitted for approval.
THE HON'BLE SRI JUSTICE K.SURENDER
1 Whether Reporters of Local
newspapers may be allowed to see Yes/No
the Judgments?
2 Whether the copies of judgment
may be marked to Law Yes/No
Reporters/Journals
3 Whether Their Ladyship/Lordship
wish to see the fair copy of the Yes/No
Judgment?
__________________
K.SURENDER, J
2
* THE HON'BLE SRI JUSTICE K. SURENDER
+ CRL.P. No. 586 of 2021
% Dated 16.03.2023
# V.Narsinga Rao ... Petitioner
And
$ The State of Telangana,
Rep. through Public Prosecutor,
High Court for the State of Telangana,
Hyderabad and another ... Respondents
! Counsel for the Petitioners: Sri M.V.Hanumantha Rao
^ Counsel for the Respondents: Sri S.Sudershan
Additional Public Prosecutor for R1
>HEAD NOTE:
? Cases referred
1
2012 (Suppl.) ACC 308
3
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.586 OF 2021
ORDER:
1. This Criminal Petition is filed to quash the proceedings
against the petitioner/Accused No.9 in C.C.No.10380 of 2020
on the file of XII Additional Chief Metropolitan Magistrate,
Hyderabad for the offence under Section 109 of IPC.
2. The 2nd respondent is the Chief Manager of Bank of
Maharashtra. He filed a complaint stating that loan
application was made by Gali Niranjan/A2 on behalf of A1 i.e.,
M/s.REX Contractors & Traders Private Limited for cash credit
of Rs.180.00 lakhs which was sanctioned on 02.11.2012 from
Khairatabad branch. An open plot admeasuring 1700 sq.yds
in Sy.No.110, Maktha, Mehaboobpet village, Serilingampally
which was owned by A2 was given as security. Loan was given
to A1 and A2. However, the amounts were not being paid. The
account was declared as NPA on 29.10.2013 and the Bank
also initiated proceedings under SARFAESI Act.
3. It is further stated that on enquiry, the Bank came to
know that the sale deed which was deposited is non existent
property and same was done with an intention to cheat the
Bank. The documents from the Bank were collected during the
course of investigation. During the course of investigation it
was found that there are disputes regarding the property and
also certain documents were fabricated by the accused A1 to
A7 who created will deeds and A5 to A7 executed agreement of
sale-cum-GPA in favour of A4. A4 to A7 planned and divided
the property into two plots and sold one of the said plots for
sale consideration of Rs.1.87 lakhs to A2. The said document
was submitted before the Bank of Maharashtra. On the basis
of the complaint filed by the bank, the police investigated the
case and filed charge sheet. This petitioner who is an advocate
was found complicit of colluding with A2 and furnishing false
certification of the plot given as security by A2.
4. Learned counsel for the petitioner submits that an
Advocate giving a legal opinion cannot be prosecuted
criminally in view of the judgment of the Hon'ble Supreme
Court in the case of Central Bureau of Investigation,
Hyderabad v. K.Narayana Rao1. On the basis of the
documents produced by the Bank, the petitioner, who is
appointed as a counsel for the Bank has certified that the
property which was registered and in Sy.No.110 of Maktha,
Mehaboobpet village was searched in the sub- registrar's office
and that there is a clear marketable title. Since the opinion is
based on the documents provided, it cannot be said that this
petitioner in any manner entered into criminal conspiracy with
the other accused to cause loss to the Bank. Accordingly,
petition has to be allowed.
5. On the other hand, it was argued on behalf of the
respondents that the role of this petitioner is clearly
mentioned in the charge sheet that A2 approached A8 and this
petitioner/A9 and submitted loan application and offered to
give good percentage. For the said reason, A8 and this
petitioner colluded with A2 and knowing that the property was
not genuine certified that the property to be clear and
marketable. On the basis of said opinion, A8 sanctioned loan
2012 (Suppl.) ACC 308
for an amount of Rs.180.00 lakhs. After disbursal of the loan,
A2 diverted the amount to his personal account and
misappropriated. The bank has suffered loss on account of the
acts of this petitioner also along with other accused as such
the proceedings have to continue before the trial Court.
6. The role attributed to this petitioner, who is an Advocate
is that he had given an opinion on the basis of the documents
provided by the Bank. The certification by the counsel in his
legal opinion is as follows:
"I have examined the original title deed Doct.No.12306 of 2012
dt.05-11-2012 relating to land admeasuring 2051 sq.yds in
Sy.No.110 of Makta Mahaboobpet village, Serilingampally
Mandal, R.R.District and I have also taken search with the
District Registrar, R.R.District for the last 29 years (Original
fee receipt enclosed). I certify that Sri Gali Niranjan has an
absolute, clear and marketable title over the property shown
above in Para-5 and that by deposit of afore said title deed by
mortgagor/borrower a valid mortgage would be created on
behalf of borrower in the manner required by law, it will
satisfy the requirements of creation of Equitable Mortgage."
7. The Bank while lodging the complaint mentioned that on
enquiry, they came to know that the borrowers and guarantors
defrauded the Bank by depositing a sale deed of non existent
property for the purpose of cheating the Bank. However, no
role was attributed to this petitioner in the complaint made
nor did the preliminary enquiry by the Bank before lodging the
complaint reveal the role of this petitioner.
8. The police, having filed charge sheet mentioned that an
offence under Section 109 of IPC is made out against this
petitioner. However, against A1 and A2, the charges are under
Sections 406, 409, 420 r/w 34 of IPC, charges against A5 and
A6 are Sections 406, 420, 465, 468, 471 r/w 34 of IPC and
against bank official A8, offence under Section 406, 409,
420r/w 109 of IPC.
9. The borrowers and guarantors approached the Bank for
the purpose of taking loan and provided the documents for the
purpose of security. The role of this petitioner is after the other
accused had approached the Bank, the Bank had provided the
documents for the purpose of certification and verification.
Having verified the said documents in the District Registrar,
R.R.District for a period of 29 years certified that Gali Niranjan
has absolute clear and marketable title over the property
which is 1700 sq.yds out of 3751 sq.yds in Sy.No.110,
Mahaboobpet Village, Serilingampally Mandal.
10. It is not in dispute that the document is registered
document and original fee receipt which the petitioner had
searched in the District Registrar was also enclosed along with
the legal opinion. It is not the case of the police that this
petitioner had verified the physical boundaries of the land by
visiting the said property. No where it is mentioned in the legal
opinion that this petitioner had verified the land physically
and later certified. The only documents which were provided
by the Bank were verified with the Sub-Registrar office.
11. To attract an offence under Section 109 of IPC, it has to
be shown that the accused has instigated the other accused or
engaged with them in pursuance of criminal conspiracy for
doing an illegal act. Admittedly the role attributed to this
petitioner is only after the bank provided relevant documents
for the purpose of verification. There is no allegation of any
transfer of amounts to this petitioner. In the said
circumstances, on the basis of an assumption that this
petitioner had intentionally aided or abetted the other accused
to obtain loan, the prosecution against the petitioner cannot
be continued.
12. The Hon'ble Supreme Court in Central Bureau of
Investigation, Hyderabad v. K.Narayana Rao (surpa) held
that merely because opinion of a counsel or lawyer is not
acceptable, he cannot be mulcted with criminal liability
particularly in the absence of any tangible evidence that he is
associated with the other conspirators. There are no witnesses
to speak about this petitioner being in any manner involved
with the other accused. Though the evidence is circumstantial
in nature, merely on the basis of opinion given by this
petitioner, on the basis of verification in the Sub-Registrar
Office, this Court is of the opinion that criminal proceedings
cannot be allowed to continue against this petitioner.
13. In the result, the proceedings against the petitioner/A9
in C.C.No.10380 of 2020 on the file of XII Additional Chief
Metropolitan Magistrate, Hyderabad, are hereby quashed.
14. Accordingly, the Criminal Petition is allowed.
Consequently, miscellaneous petitions, if any, shall stand
disposed.
__________________
K.SURENDER, J
Date: 16.03.2023
Note: LR copy to be marked.
B/o.kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.586 OF 2021
Date: 16.03.2023
kvs
