Quashed

Tankadhar Mishra v. State

Orissa HC4 Apr 2018WPCRL/881/2009

Case brief

AI extract

What is this about?

This judgment quashes criminal proceedings initiated against a legal practitioner who provided a verification report on property encumbrances to a bank. The High Court held that without evidence of criminal intent or fraud, a lawyer cannot be criminally liable for an opinion based on document verification.

What did the court decide?

The criminal proceeding against the petitioner is quashed as it amounts to an abuse of process of court and violates fundamental rights.

Tankadhar Mishra Vs State — Bail and Remand | Orissa HC (2018)

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THE HIGH COURT OF ORISSA, CUTTACK

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W.P.(CRL.) NO. 881 OF 2009

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In the matter of an application under Articles 226 and 227 of the Constitution of India.

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----------------Tankadhar Mishra ..…..… Petitioner -VersusState of Orissa and others .……… Opposite parties For Petitioner - M/s. Milan Kanungo, P.K. Rath, P.K. Satapathy and A.K. Mishra For opposite parties - Mr. J. Katkia, Additional Government Advocate (For O.Ps. 1 to 6) Mr. S.K. Padhi, Senior Advocate (For O.P.7) M/s. G. Kar, A.K. Mohanty and J. Behera (For O.P. 8) ------------- P R E S E N T:

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THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY

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----------------------------------------------------------------------------------------------- Date of hearing- 26.03.2018 : Date of judgment- 04.04.2018 -----------------------------------------------------------------------------------------------

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DR. D.P. CHOUDHURY, J . The petitioner assails the initiation of the criminal

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proceeding initiated against him who is a legal practitioner vide C.I.D. P.S. Case Nos. 34 and 36 of 2008 pursuant to the report of the Senior Branch Manager, Bank of Baroda, Manisahu Chhak dated 14.8.2008.

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2. The conspectus of the case of the prosecution is that the Bank of Baroda has engaged the petitioner as an Advocate. According to the F.I.R., one Smruti Ranjan Samantray being the proprietor of the firm M/s. The Heritage has availed cash credit facility of Rs.9,50,000/- from

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the branch of Bank of Baroda on 25.4.2006 against creation of equitable mortgage of landed property standing in the name of guarantor Saumya Ranjan Samantray. After necessary documents were submitted, the Bank in question engaged one S.K. Parida, Advocate to make investigation. Mr. Parida submitted the report on 7.2.2008 stating that the mortgager is not having any right, title and interest over the mortgaged property created in favour of the Bank of Baroda as the same stands in the name of Didbyasingha Das, but not in favour of guarantor Saumya Ranjan Samantray. Since the Bank got smell of fraud, they lodged F.I.R. before the Superintendent of Police of C.I.D., Crime Branch. While the investigation was running implicating the petitioner, he challenged the initiation of the criminal proceeding on the ground that the petitioner being a lawyer and having only rendered opinion, does not have any sort of criminal intention than only to supply professional opinion. Hence, the case is filed to quash the criminal proceeding and to pay damage of Rs.50,00,000/- after initiating Contempt proceeding against the Police Officers.

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SUBMISSIONS:

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3. Mr. Milan Kanungo, learned Senior Advocate for the petitioner submitted that the petitioner being the Advocate for the Bank of Baroda was only entrusted to give opinion basing on the record and accordingly he gave opinion to the best of his ability. The Banking official has also rendered the opinion after visiting the field. The petitioner being

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Advocate has given his opinion as to whether the land can be free from

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encumbrances to mortgage and avail loan. Mr. Kanungo further submitted that petitioner cannot be said to have committed any offence when he has given his legal opinion basing on records, but without any request from Bank to visit field. He further submitted that the action taken

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by Bank and the Officers of the Crime Branch without verifying the records has cast allegation against the present petitioner falsely and as such his fundamental right accrued under Article 14 read with Article 19 of the Constitution are clearly violated. Thus, he prayed to quash the entire criminal proceeding.

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4. Mr. Kanungo, learned Senior Advocate for the petitioner has contended that the petitioner had not visited the field as he was not required to visit the field and only on verifying the documents of the land in question he gave the opinion, rather Bank Officer visited the spot. In such case the petitioner should not be made an accused. He relied on the decision in the case of Central Bureau of Investigation, Hyderabad

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v. K. Narayan Rao, (2012) 9 SCC 512 .

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5. Mr. Katkia, learned Addl. Government Advocate submitted that even if the petitioner is an advocate, but he has committed professional misconduct by giving false report as to the property in question being free from encumbrances and put the Bank into loss. During further hearing of the case, learned Addl. Government Advocate submitted that investigation of Crime Branch was directed against field visit, but not for verification of the documents. The I.O. who was present

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in Court also submitted that the land available on record has been

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physically merged with the river.

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6. Mr. G. Kar, learned counsel for the Bank (opp. Party no.8) clearly submitted that the Bank has not lodged F.I.R. against the petitioner, but had lodged F.I.R. alleging the facts. At the same time during hearing he fairly admitted that the petitioner was engaged by the Bank to give opinion legally about the right, title and interest over the land sought for, for mortgaging same with the Bank.

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DISCUSSION:

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7. It is the admitted fact that the petitioner is a legal practitioner and his service was hired by the Bank of Baroda. It is also not in dispute that the petitioner has opinion as Advocate after going through the records in a format vide Annexure-A.

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8 . In terms of the submissions during course of hearing it is made by the parties it is amply disclosed that the petitioner has only given opinion as Advocate for the Bank basing on document and he has not visited the spot. When the petitioner gave his opinion as lawyer for the Bank by verifying document for any departure in the field the opinion of the petitioner cannot be faulted with. If the opinion of the lawyer is scrutinized like in this case, I am afraid, no legal person can vouch to give his opinion on the matter referred to. It is reported in the case of Central Bureau of Investigation, Hyderabad v. K. Narayan Rao (supra), where Their Lordships observed at paragraphs 27, 30 and 31 as

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follows:-

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“27. …….. 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.

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xx xx xx

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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.

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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.”

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9. With due regard to the aforesaid decision it appears that a

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lawyer cannot be made responsible for the opinion given by him far less

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from criminal prosecution if the same is found to be honest and fair. The noble job of the lawyer is always in high esteem. If any lawyer violates the ethics, certainly he is liable not only for professional misconduct, but also for professional negligence. But criminal case cannot be thought of

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unless he is found to have criminal intention to commit any crime.

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10. Now adverting to the present case, the petitioner has only rendered the job for preparing verification report of the land in question. Without visiting the field, he cannot be made liable for having any offence committed. Before parting with the case, it must be remembered that the dignity of the noble profession of a lawyer should be maintained at high pedestal by all in the society. If the opinion of the lawyer is misconstrued, no lawyer will come forward to give any legal advice to his client. But a lawyer is supposed to maintain high standard while giving legal opinion to any Bank or any other institution as his opinion carries a lot of meaning for the society.

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11. Be that as it may, in the instant case since there is no fraud committed by the petitioner, who has fairly given his opinion and it is informed by Mr. Kar, learned counsel for the Bank that the loan amount has already been recovered and account being closed, any criminal proceeding will be sheer abuse of process of Court and violation of fundamental right of petitioner. Hence, the criminal proceeding against the petitioner is quashed.

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The writ application is disposed of accordingly.

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……………………………. Dr. D.P. Choudhury, J

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Orissa High Court, Cuttack

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The 4^th day of April, 2018/ DNP

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Tankadhar Mishra v. State

Case brief

What is this about?

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Tankadhar Mishra v. State

Case brief

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What did the court decide?

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