TaxTMI 
TaxTMI 
2013 (7) TMI 588
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....ch Manager and the Assistant Manager, respectively of the Vijaya Bank, Narayanaguda Branch, Hyderabad, for the commission of offence punishable under Sections 120-B, 419, 420, 467, 468 471 read with Section 109 of the Indian Penal Code, 1860 (in short 'the IPC') and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 for abusing their official position as public servants and for having conspired with private individuals, viz., Shri P.Y. Kondala Rao - the builder (A-3) and Shri N.S. Sanjeeva Rao (A-4) and other unknown persons for defrauding the bank by sanctioning and disbursement of housing loans to 22 borrowers in violation of the Bank's rules and guidelines and thereby caused wrongful loss of Rs. 1.27 crores to the Bank and corresponding gain for themselves. In furtherance of the said conspiracy, A-2 conducted the pre-sanction inspection in respect of 22 housing loans and A-1 sanctioned the same. (b) After completion of the investigation, the CBI filed charge sheet along with the list of witnesses and the list of documents against all the accused persons. In the said charge sheet, Shri K. Narayana Rao, the respondent herein, who is a legal pract....
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....ed senior counsel for the respondent (A-6), after taking us through the charge sheet and the materials placed before the respondent seeking legal opinion, submitted that he has not committed any offence much less an offence punishable under Section 120-B read with Sections 419, 420, 467, 468, 471 and 109 of IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. He further submitted that based on the documents placed, the respondent herein after perusing and on satisfying himself, furnished his legal opinion for which he cannot be implicated as one of the conspirators for the offence punishable under Section 420 read with Section 109 IPC. 7) We have carefully perused all the relevant materials and considered the rival submissions. 8) In order to appreciate the stand of the CBI and the defence of the respondent, it is necessary to refer the specific allegations in the charge sheet. The respondent herein has been arrayed as accused No. 6 in the charge sheet and the allegations against him are as under: "Para 20: Investigation revealed that legal opinions in respect of all these 10 loans have been given by Panel Advocate - Sri K. Narayana R....
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....re is prima facie allegation(s) and material(s) in order to pursue the trial against the respondent herein. In the same way, we have to see whether the reasoning and the ultimate conclusion of the High Court in quashing the charge sheet against the respondent herein (A-6) is sustainable. We are conscious of the power and jurisdiction of the High Court under Section 482 of the Code for interfering with the criminal prosecution at the threshold. 9) Mr. Raval, learned ASG in support of his contentions relied on the following decisions: i) State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39; ii) P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398; and iii) Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368. 10) The first decision Ramesh Singh (supra) relates to interpretation of Sections 227 and 228 of the Code for the considerations as to discharge the accused or to proceed with trial. Para 4 of the said judgment is pressed into service which reads as under: "4. Under Section 226 of the Code while opening the case for the prosecution the Prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove....
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....guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. It the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even, at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227." 11) Discharge of accused under Section 227 of the Code was ....
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....se under Section 209 CrPC is not to act as a mere post office and has to come to a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. If there is no prima facie evidence or the evidence is totally unworthy of credit, it is the duty of the Magistrate to discharge the accused, on the other hand, if there is some evidence on which the conviction may reasonably be based, he must commit the case. It is also clear that in exercising jurisdiction under Section 227 CrPC, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Exercise of jurisdiction under Sections 227 and 228 CrPC 21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the lim....
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....pen to the Court to say that there is no sufficient ground for proceeding against the accused. A judicial magistrate enquiring into a case under Section 209 of the Code is not to act as a mere post office and has to arrive at a conclusion whether the case before him is fit for commitment of the accused to the Court of Session. He is entitled to sift and weigh the materials on record, but only for seeing whether there is sufficient evidence for commitment, and not whether there is sufficient evidence for conviction. On the other hand, if the Magistrate finds that there is no prima facie evidence or the evidence placed is totally unworthy of credit, it is his duty to discharge the accused at once. It is also settled law that while exercising jurisdiction under Section 227 of the Code, the Magistrate should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. This provision was introduced in the Code to avoid wastage of public time and to save the accused from unavoidable harassment and expenditure. While analyzing the role of the respondent herein (A-6) from the charge sheet and the materials supplied along with it, th....
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....e other. By pointing out the same, learned ASG submitted that the respondent herein (A-6), along with the other conspirators defrauded the Bank's money by sanctioning loans to various fictitious persons. 16) We have already extracted the relevant allegations and the role of the respondent herein (A-6). The only allegation against the respondent is that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties. As rightly pointed out by Mr. Venkataramani, learned senior counsel for the respondent, the respondent was not named in the FIR. The allegations in the FIR are that A-1 to A-4 conspired together and cheated Vijaya Bank, Narayanaguda, Hyderabad to the tune of Rs. 1.27 crores. It is further seen that the offences alleged against A-1 to A-4 are the offences punishable under Sections 120B, 419, 420, 467, 468 and 471 of IPC and Section 13(2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988. It is not in dispute that the respondent is a practicing advocate and according to Mr. Venkataramani, he has experience in giving legal opinion and has conduct....
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.... 08.02.1980 Death Certificate of Shri PV Narahari Rao Xerox Copy 3. 07.03.1980 Legal Heir Certificate of Shri PV Narahari Rao Xerox Copy 4. 24.04.1980 C.C. of Regd. GPA No. 58/80 Xerox Copy 5. 19.09.1980 Regd. Sale Deed No. 1243/80 with Plan Xerox Copy 6. 07.12.1998 Sanctioned Plan vide proceeding No. 2155/98 Xerox Copy 7. 02.01.2003 Development Agreement Xerox Copy 8. 25.04.2003 EC No. 6654/2003 for the period from 28.06.1980 to 31.03.1982 Xerox Copy 9. 25.04.2003 EC No. 4136/2003 for the period from 01.04.1982 to 23.03.1984 Xerox Copy 10. 21.04.2003 EC No. 3918/2003 for the period from 24.03.1994 to 20.04.2003 Xerox Copy 11 28.07.2003 Agreement for Sale Original 3. Details/Description of Property:- Sl.No. Sy. No./H.No. Extent of land Location Boundaries Building Dist.Village All that Flat bearing No. F-5 on First Floor, admeasuring 900 sq. Ft, along with undivided share of land 28 sq yds, out of total admeasuring 870 sq. yds constructed on Plot Nos. 3, 4 and 5 in Sy. Nos. 84 and 85 in the premises of "Guru Datta Nivas", situated at Nerdmet, Malkajagiri Muni....
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....he same consideration. 5. Search and Investigation. 5.1 The person who is the present owner of the property Shri NS Sanjeeva Rao (present owner/vendor) and Shri BAVK Mohan Rao (purchaser/Vendee) 5.2 to 5.5 xxx xxx 5.6 Whether there the latest title deed and immediately previous title deed(s) are available in original The document No. 5 is available in Xerox (original verified) 5.7 to 5.13 xxx xxx 5.14 Whether the proposed equitable mortgage by deosit of title deed is possible? If so, what are the documents to be deposited? If deposit is not possible, can there be simple mortgage or a registered memorandum or by any other mode of mortgage? Yes, Equitable mortgage is possible. The original registered Sale Deed executed in favour of Shri BAVK Mohan Rao (applicant) by the Vendors along with all the documents as mentioned in the list in Item No. 2 of this opinion should be deposited 5.15 to 5.20 xxx xxx 6-8 xxx xxx xxx 9. CERTIFICATE I am of the opinion that Shri NS Sanjeeva Rao is having clear marketable title by virtue of Regd. Sale Deed No. 1243/1980 dated 19.09.1980 referred document No. 5 of this opinion. He can conv....
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....cuments and very few original documents as well as Xerox copies of Death Certificate, Legal heir-ship Certificate, Encumbrance Certificate for his perusal and opinion. It is his definite claim that he perused those documents and only after that he rendered his opinion. He also advised the bank to obtain Encumbrance Certificate for the period from 21.04.2003 till date. It is pointed out that in the same way, he furnished Legal Scrutiny Reports in respect of other cases also. 18) We have already mentioned that it is an admitted case of the prosecution that his name was not mentioned in the FIR. Only in the charge- sheet, the respondent has been shown as Accused No. 6 stating that he submitted false legal opinion to the Bank in respect of the housing loans in the capacity of a panel advocate and did not point out actual ownership of the properties in question. 19) Mr. Venkataramani, learned senior counsel for the respondent submitted that in support of charge under Section 120B, there is no factual foundation and no evidence at all. Section 120A defines criminal conspiracy which reads thus: "120A. Definition of criminal conspiracy.- When two or more persons agree to do, or ca....
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....umstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence. 21) In the earlier part of our order, first we have noted that the respondent was not named in the FIR and then we extracted the relevant portions from the charge-sheet about his alleged role. Though statements of several witnesses have been enclosed along with the charge-sheet, they speak volumes about others. However, there is no specific reference to the role of the present respondent along with the main conspirators. 22) The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge sheet and the materials placed for his scrutiny and arrived at a conclusion that the same does not disclose any criminal offence committed by him. It also concluded that there is no material to show that the respondent herein joined hands with A-1 to A-3 for giving false opinion. In the absence of direct material, he cannot be implicated as one of the conspirators of the offence puni....