IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 5.2.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.O.P.No.21298 of 2007 and M.P.No.1 of 2007 S.Udayakumar Petitioner vs. State rep. By Inspector of Police, CCIW CID/Chengai East Unit, Admiralty House, Government Estate, Chennai. (Cr.No.CCIW CID Cr.No.2 of 2003) Respondent Criminal Original Petition filed under section 482 Cr.P.C. to call for the records in C.C.No.16729 of 2006 on the file of the learned XVI Metropolitan Magistrate, George Town, Chennai and quash the same insofar as the petitioner herein. For petitioner : Mr.Sriramulu, Senior Counsel for Mr.R.Karthikeyan For respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side) ORDER
The petition is filed seeking to quash the criminal proceedings in C.C.No.16729 of 2006 on the file of the learned XVI Metropolitan Magistrate, George Town, Chennai.
2. The petitioner, ranked as fourth accused, stands charged with offences punishable under sections 467, 468, 471, 477A and 420 read with 109 of the Indian Penal Code.
3. The petitioner would contend that he was the Legal Advisor for Tamil Nadu State Co-operative Bank from 1986 to 2004. He had given about 1000 opinions to Housing Loan aspirants. One S.M.Syed Kalimulla, Proprietor of Sardar Transport applied for a loan of Rs.1,65,00,000/= for purchase of ten Hitech Buses by arranging a collateral security of 2.64 acres of land alleged to have belonged to one K.Varadappa Naicker son of Kuppuswamy Naicker. Being the Legal Advisor, he perused the original documents, Encumbrance Certificate and valuation certificates of the land bearing S.No.107/3/A1 and S.No.107/4 of Madipakkam Village, Tambaram Taluk, Kancheepuram District and gave opinion that there was no encumbrance in the said property. There is no allegation that he intended to cheat the Bank, it is contended.
4. Learned Senior Counsel appearing for the petitioner would submit that an Advocate, who has put in more than 20 years in the High Court of Madras, has been charged uncharitably for the aforesaid offences just for giving legal opinion about the marketability of the land of a borrower. It is his further submission that none of the witnesses has spoken to the effect that the petitioner fraudulently and dishonestly induced the Bank to part with the loan amount to the borrower on the basis of the opinion furnished by him. None of the witnesses has also spoken to the role played by the petitioner in forging the valuable securities. Therefore, the petitioner may be relieved of the aforesaid charges, he would finally contend.
5. Mr.A.Saravanan, learned Government Advocate (Crl. Side) would contend that the Bank lent money only based on the opinion given by the petitioner and that therefore, the petitioner has to shoulder the criminal liability for the offence of cheating committed by the borrower with the connivance of the petitioner herein.
6. There is no dispute to the fact that the petitioner was the Legal Advisor for Tamil Nadu State Co-operative Bank during the period from 1986 to 2004. After all, the petitioner, who is a Lawyer by profession, is expected to offer his opinion based on the documents produced before him by the financial institution concerned. On a perusal of the opinion given by the petitioner, it is found that he has given his legal opinion based on the xerox copies submitted to him. He has also very scrupulously cautioned the bank to accept the valuable security in the form of land offered by the borrower subject to the production of all original title deeds. It appears that subsequent to the opinion given by him, the Bank has forwarded the original sale deeds and patta relating to the properties in S.No.107/A1 and 107/4 Madipakkam Village, Saidapet Taluk, Kancheepuram District to the petitioner and he, having perused those documents, has certified that he has verified the originals thereof.
7. An advocate is not a detective of forged documents or an expert to give opinion as to the forgery or otherwise of a document. The petitioner, having received the documents alleged to be originals, perused them and certified that he verified the original documents also. A meticulous concoction of a document would outsmart the original thereof in its form and execution. It is only an expert or a detective in the field unearthing forgery of documents can bring to light the duplicacy or concoction applying his expertise. A Legal Advisor is not supposed to play the role of a document expert.
8. Of course, the witnesses on the side of the prosecution have spoken to the fact that the petitioner offered his legal opinion. None of the witnesses has come out with a revelation that the petitioner fraudulently and dishonestly induced the Bank to part with heavy loan. There is no material to show that the petitioner played a supportive role in forging the document offered as valuable security by K.Varadappa Naicker.
9. No prima facie case has been made out as against the petitioner for the aforesaid offences he was charged with. There will be miscarriage of justice if the petitioner, who is a reputed Lawyer of more than 20 years standing in the High Court of Madras, is permitted to face such unsustainable criminal charges. The legal profession itself will be in peril if such contention of the prosecution, without any foundation or basis, is accepted by the court. Expressing anguish over the implication of a legal professional in such charges just for offering legal opinion, the court finds that the entire criminal proceedings as against the petitioner is liable to be quashed.
10. In view of the above, quashing the criminal proceedings as against the petitioner, who is ranked as fourth accused in C.C.No.16729 of 2006, the petition stands allowed. The connected Miscellaneous Petition stands closed.
ssk.
To
1. XVI Metropolitan Magistrate,
George Town, Chennai.
2. Inspector of Police,
CCIW CID/Chengai East Unit,
Admiralty House,
Government Estate,
Chennai.