The Chhattisgarh High Court has reiterated that negligence in performing professional services cannot attract criminal liability.

The Court based on the observation made, thus quashed the criminal proceedings against one advocate.

It held,

"It is true that the petitioner could have exhibited more and greater professional care and competence, yet in failure to exercise the same, she could not have been held criminally liable."

CASE BACKGROUND

The Petitioner-Advocate herein, Subha Jakkanwar, was charged under Sections 420, 467, 468, 471 & 120B of IPC for allegedly wrongly providing a non-encumbrance certificate on properties of 10 borrowers who had applied for a loan with Dena Bank. On their failure to repay the loan, it was found that the documents submitted by the borrowers were false and fabricated.

Therefore, as a result, an FIR was registered against them. Subsequently, however, the Petitioner was also roped in as an accused for alleging that she had given a non-encumbrance certificate of legal scrutiny and she had certified documents concerned and, thereby, she had also committed the offense.

The Court quashed the said FIR against the Petitioner, stating that merely because her opinion was not acceptable, she couldn't be mulcted with criminal prosecution, particularly, in the absence of tangible evidence that she associated with other conspirators. At the most, she may be liable for gross negligence or professional misconduct if it is established by acceptable evidence, the court said.

The Court placed reliance on Central Bureau of Investigation, Hyderabad v. K. Narayana Rao, (2012) 9 SCC 512, and held,

"It is well-settled law that extending of a legal opinion for granting loans has become an integral component of an advocate's work in the banking sector. A lawyer, on his part, has a responsibility to act to the best of his knowledge and skills and to exhibit an unending loyalty to the interest of his clients. He has to exercise his knowledge in a manner that would advance the interest of his clients. However, while acting so the advocate does not assure to his client that the opinion so rendered by him is flawless and must in all possibility act to his gains. Just like in any other profession, the only assurance which can be given and may even be implied from an advocate so acting in his professional capacity is that he possesses the requisite skills in his field of practice and while undertaking the performance of the task entrusted to him, he would exercise his skills with reasonable competence. The only liability that may be imputed on an advocate while so acting in his professional capacity is that of negligence in the application of legal skills or due exercise of such skills."

The court also brought up Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, 1984 SCR (1) 414, in which the Supreme Court had held,

"There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct."

Placing reliance on the above observations, it was held that the liability against an opening advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.

But since in the present case no evidence is there that can prove that the petitioner/advocate conspired with the other co-­accused persons to submit the false report or derived any pecuniary advantage to submit the non-­encumbrance certificate.

Thus the Court dissolved of all the charges against her and the proceedings was quashed.

The judgement was delivered by Justice Sanjay K. Agrawal ON 26-11-2019:

Read Judgement Here:

 

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