- (1.) In this criminal revisional application the petitioner is challenging the proceeding being RC - 1/E/2010/ Kolkata dated 28th January 2010 under Sections 120B/ 419/410/467/468/471 of the IPC read with Section 13(2) 13(1) (d) of the Prevention of Corruption Act ( for short PC Act) pending before the learned 3rd Special Court, Kolkata. The petitioner also challenges the order dated 17 December 2013 passed by the said learned Special Court.
(2.) The matter appears at the stage of New Motion today.
(3.) The short facts of the case are as follows: a) That on an information furnished by Sri H.P. Satpati, Zonal Manager, UCO Bank to the Superintendent of Police, CBI, Economic Offences Wing, Kolkata a case was registered under the aforementioned sections of the IPC and PC Act against the petitioner and 6 other persons. b) It is alleged that the petitioner, who was an empanelled lawyer of UCO Bank, entered into a criminal conspiracy with 6 other persons to cheat the bank operating from its main branch at 10 Brabourne Road, Kolkata -1 by availing cash credit limit against collateral security of forged and fabricated title deed of a property. c) The specific case against the petitioner is that on receipt of the application from the some of the other accused persons for an enhanced quantum of loan, one of the accused persons namely, Sri Swapan Kumar Roy, the then Assistant Manager of the Bank, did not examine such proposal with the enclosed copy of the title deed of the property and thereby the fact was suppressed that the title deed was apparently tampered / fabricated to show the quantum of land as 3 acres 21 sataks ( decimal) instead of only 21 satak. The petitioner, being part of the conspiracy prepared a favorable report in respect of such property along with non - encumbrance certificate dated 22 March 2004 and thereby the Bank was defrauded by showing the valuation of the property to be worth Rs. 85.29 lakhs and such valuation being not commensurate to the actual physical measurement of the property. d) Upon investigation charge sheet was submitted against the accused persons including the petitioner. In the said charge sheet it has been alleged against the petitioner as follows: - " it may be mentioned that, prior to the disbursement of loan amount, the Bank's empanelled lawyer Sri Subasish Ghosh ( A -7) has submitted two false reports of " non -encumbrance certificate and reports on title deed (i). dated 22nd March 20104 And (ii) 23 June 2004. In both these reports Sri Ghosh falsely mention the area of the land as 3 acres and 21 decimals and dag numbers 1383, 1396 and 1390". e) It is further alleged in the said charge sheet as follows: - " thereafter, a fresh legal search was carried out by an empanelled advocate, namely Smt. Mousumi Chakraborty ( Chatterje) who gave her finding vide " report on title dated 19th June, 2009. The said report mentioned apart from others" the original title deed was tampered to enhance the quantum of land from 21 sataks to 3.21 sataks and the execution and registration of the title deed is genuine in respect of land measuring 21 sataks." f) The CBI also sought sanction for prosecution against the said Swapan Kumar Roy, the then Assistant Manager, UCO Bank Kolkata Main Branch. A total of 71 documents were relied upon by the CBI in support of the charge sheet along with a total of 37 witnesses. g) The petitioner filed an application for discharge in the said case before the learned Magistrate being Special Case No. 21/2011. The petitioner took the point in his discharge application that rendition of a legal opinion cannot be construed as an offence. He also took the point that it is not possible for a panel advocate to investigate the genuineness of a document. In the present case the petitioner claims to have only perused the contents of the document submitted to him and concluded on the validity of the title conveyed through the said document. h) The petitioner further contended in his application for discharge that the rendering of a legal opinion prior to grant of loans in the Banking Sector has become an important part of the work of an Advocate. While doing so the lawyer is only required to render his service with reasonable skill. The test of negligence qua the lawyer would only lie with regard to the lack of reasonable exercise of skill possessed by him. According to the petitioner, no criminal liability can be fastened upon him for rendering such opinion. By the order impugned number 37 dated 17 December 2013 the learned Magistrate was pleased to hear out and decide the application for discharge filed by the present petitioner under Section 239 Cr.P.C. After recording the factual background of the case, as also recorded hereinabove in this judgment, the learned Magistrate was pleased to, inter alia, hold as follows: - "17.12.2013 Heard the Ld. Advocates, perused the materials on record along with the charge sheet and all other connected papers. I have also gone through the reports filed by A -7 and Ld. Advocate Moushumi Chakraborty (Chatterjee). It appears to me that the whole crux of this case is based upon the non -encumbrance certificate issued by A -7. It further appears to me that A -7 is the only person who first of all gave the false certificate regarding the ownership and the area of the mortgaged property. If the area of the mortgaged property is only 21 satak, then the alleged loan would not be sanctioned. The Prosecution harped upon A -7 for the alleged offence of conspiracy over the other accused persons.;