M.V.Chandran v. The Inspector of Police,SPE, CBI, ACB, Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 16.7.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.No.311 of 2008,M.P.No.1 of 2008 in Crl.R.C.No.311 of 2008andCrl.O.P.No.8844 of 2008Crl.R.C.No.311 of 2008M.V.ChandranPetitioner /Accused -3 vs. State,Special Police Establishment,Central Bureau of Investigation,Economic Offences Wing,III Floor, "A" Wing, Rajaji Bhavan,Besant Nagar, Chennai-90. Respondent/ComplainantDRT & DRAT Bar Association,Spencer Towers, VI Floor,770-A, Anna Salai,Chennai 600 002.(impleaded vide order in M.P.No.2 of 2008)IntervenorCrl.O.P.No.8844 of 2008E.KumarPetitioner /Accused - 3vs.The Inspector of Police,SPE, CBI, ACB, Chennai.Respondent/ComplainantMadras High Court AdvocatesAssociation, High Court by its Secretary, Chennai 600 104. Intervenor(impleaded vide order in M.P.No.1 of 2008)DRT & DRAT Bar Association,Spencer Towers, VI Floor,770-A, Anna Salai,Chennai 600 002.(impleaded vide order in M.P.No.2 of 2008)Intervenor https://hcservices.ecourts.gov.in/hcservices/ Criminal Revision Case filed under sections 397 and 401 Cr.P.C.to call for the records and set aside the order dated 29.11.2007 madein Crl.M.P.No.57 of 2006 in C.C.No.13473 of 2005 on the file of theAdditional Chief Metropolitan Magistrate, Egmore, Chennai-9 and allowthe Criminal Revision Case.Criminal Original Petition filed under section 482 of the Codeof Criminal Procedure to call for the records in C.C.No.7651 of 2003on the file of the learned Additional Chief Metropolitan Magistrate,Crime Branch, Egmore, Chennai 600 008 and quash the proceedingsagainst the petitioner. Appearance in Crl.R.C.No.311 of 2008For petitioner : Mr.K.S.Dinakar, Senior Counsel for Mr.S.KarthikeyanFor intervenor : Mr.K.Gopinath, Senior Counsel for DRT & DRAT Bar AssociationFor respondent : Mr.N.Chandrasekar, Special Public Prosecutor for CBI Cases.Appearance in Crl.O.P.No.8844 of 2008For petitioner : Mr.Sivanand for Sivanand AssociatesFor intervenor : Mr.Gopinath, Senior Counsel for DRT & DRAT Bar AssociationFor intervenor : Mr.R.C.Paul Kanagaraj for MHAAFor respondent : Mr.N.Chandrasekar, Special Public Prosecutor for CBI Cases.COMMON ORDERAggrieved by the order passed by the Additional ChiefMetropolitan Magistrate, Egmore, Chennai dismissing the plea fordischarge raised by the third accused, the present criminal revisionis preferred by him. Criminal Original Petition No.8844 of 2008 isfiled praying to quash the criminal proceedings in C.C.No.7651 of2003 on the file of the Additional Chief Metropolitan Magistrate,Egmore, Chennai. 2. The petitioners in both the proceedings are Advocates byprofession. As they have been charged fundamentally on the groundthat they issued legal opinion which paved way for forgery ofdocuments, fabrication of records and cheating, they have been https://hcservices.ecourts.gov.in/hcservices/ arraigned as accused in the respective proceedings. 3. The prosecution has come out with a case that the petitionerin Crl.R.C.No.311 of 2008, having hatched a criminal conspiracyalong with the first accused during the period from 2001 to 2003,fraudulently availed credit facility in the form of Packing Creditand other loans from Bank of India, Chennai, Main Branch byimpersonation, producing fabricated documents and offering forgedtitle deeds as collateral securities and thereby he, along with theother accused, committed offences punishable under section 120(B)read with sections 193, 419, 420, 467, 468 and 471 of the IndianPenal Code .4. The petitioner in Crl.O.P.No.8844 of 2008, who figures as thethird accused in C.C.No.7651 of 2003, was also charged with hatchinga criminal conspiracy with other accused and availing loan fromIndian Bank, Royapuram Branch by submitting false and fabricateddocuments and thereby they cheated the said Bank and committedoffences punishable under section 120(B) read with section 420 andsections 419, 420, 467, 471 and 477A of the Indian Penal Code.5. The learned Additional Chief Metropolitan Magistrate rejectedthe plea of the petitioner in Crl.R.C.No.311 of 2008 that the bankhad not acted solely upon the opinion given by the petitioner hereinthat the first accused therein had marketable, complete, valid,absolute, perfect, legal and enforceable title to the immovableproperties offered as collateral security. Further, it is observedby the Trial Court as far as the search report given by thepetitioner that it was too early to give a finding at that stage asto whether the petitioner had gone to the Sub Registrar's office toverify the records. In view of the above, the Trial Court chose todismiss the discharge petition filed by the third accused/petitionerin Crl.R.C.No.311 of 2008. 6. The court is called upon to decide whether there is anyillegality or impropriety in dismissing the plea for discharge madeby the petitioner in Crl.R.C.No.311 of 2008 and whether there isabuse of the process of the court in arraigning the petitioner/thirdaccused in Crl.O.P.No.8844 of 2008.7. The petitioner in Crl.R.C.No.311 of 2008 has given a legalopinion based on certain xerox copies and original sale deeds andother documents of title that the first accused had marketablecomplete, valid, absolute, perfect, legal and enforceable title tothe properties referred to him for opinion. He also observed in thelegal opinion that the property was not encumbered as per theencumbrance certificate produced upto 3.10.2001. In the searchreport separately given by the petitioner in Crl.R.C.No.311 of 2008,he has observed that as per the search conducted before the SubRegistrar at Sembium and Ambattur, the properties were not encumbered https://hcservices.ecourts.gov.in/hcservices/ and were free to be encumbered in favour of Bank of India, MainBranch, Chennai. 8. The petitioner in Crl.O.P.No.8844 of 2008 had the occasion toperuse the original documents relating to one item of the propertyand xerox copies relating to the other item of the propertybeforeever he gave legal opinion. He had given a legal opinion thatSri.Marimuthu Reddy @ Mariappa Reddy has got good, valid, marketableand perfect title over the property offered as collateral security.He has given his opinion subject to the production of nil encumbrancefor the period from 3.3.1992. He has opined that Sri Govinda Pillaiand Marimuthu Reddy could create an equitable mortgage by depositingthe title deeds with the bank including the encumbrance certificateas required.9. The learned Senior Counsel appearing for the petitioners andthe intervenors would submit that it is really strange that anAdvocate, who offered his legal opinion, was implicated in a case offorgery of documents and fabrication of records and cheating. It istheir submission that the legal profession will be at peril if suchintimidatory tactics are adopted by CBI as against the legalprofessionals. There is no material on record to show, apart fromthe ipse dixit of the investigating official, that the petitioners,who are learned members of the legal profession ganged-up with anyaccused to hatch a conspiracy to cheat the nationalised banks. Thelegal opinion given by the advocates, per se, will not invitecriminal prosecution, they would submit.10. Per contra, learned Special Public Prosecutor for CBI Caseswould vehemently contend that it is premature to determine the actualrole played by these petitioners in the matter of forgery,fabrication and cheating alleged against the petitioners and others.Unless materials produced before the court without any rebuttal fallsshort of showing a prima facie case, the court cannot come to therescue of the accused concerned to relieve them of the criminalprosecution. As there is a concrete allegation that these legalprofessionals also were part of the criminal conspiracy, the questionof relieving them from the charges does not arise, he would furthersubmit. 11. Of course, it is the settled position of law that the courtis called upon to consider whether there is sufficient material toproceed against the accused while framing the charge but, at thatstage the court is not required to delve deeply into the materialscollected and appreciate the evidence and arrive at a decision as towhether the materials projected by the prosecution are sufficient toconvict the accused. Therefore, thorough marshaling of thevoluminous materials produced in the background of factual matrixfalls outside the scope at the stage when the matter was taken up forframing charges. It is also a well settled position of law that https://hcservices.ecourts.gov.in/hcservices/ whatever may be the valid defence of the accused, that cannot bepermitted to be introduced at the stage of framing charges. 12. It is found that there is no material whatsoever toincriminate the petitioners, who are legal professionals of reputethat they were involved in the conspiracy hatched by the otheraccused to hoodwink the nationalised banks. As rightly pointed outby the learned Senior Counsel appearing for the petitioners and theintervenors, it is only the ipse dixit of the investigating officerthat there was a conspiracy wherein the petitioners herein alsocontributed their might to translate the conspiracy into action. Theconspiracy theory projected by the CBI will not stand legal scrutinyeven if such a theory remains unrebutted during the course of trial. 13. The grave sin alleged to have been committed by the learnedmembers of the legal fraternity is that they chose to issue legalopinion based on the forged and fabricated documents. Further, thecharge as against the petitioner in Crl.R.C.No.311 of 2008 is that hehad chosen to give a search report as though he actually made asearch in the Sub Registrar's office that there was no encumbrance inthe subject property when there is actually an encumbrance over theproperty. The legal professionals are supposed to delve deep intothe legal nuances relating to the property in question. They do notclaim that they are experts in finger print or handwriting. Suchprofessionals cannot be expected to give an opinion as to whether thedocuments are forged and fabricated. In fact, these petitioners havealso not been called upon to give any opinion as to the genuinenessof the documents or otherwise produced for legal opinion. Had thatbeen the case, they would have cooly refused to render any serviceas called for. There is a Forensic Sciences Department whereintechnically qualified persons are available for giving opinion as tothe genuineness of the documents by putting to acid test thedocuments under challenge. Such a function which could be dischargedonly by a well qualified technical expert cannot be expected from thelegal professionals. 14. It is very much relevant to refer to the observation made byme in yet another similar case in S.UDAYAKUMAR v. STATE (2008-1-LW(Crl.) 320) which reads as follows:-"An advocate is not a detective of forged documentsor an expert to give opinion as to the forgery orotherwise of a document. The petitioner, havingreceived the documents alleged to be originals,perused them and certified that he verified theoriginal documents also. A meticulous concoctionof a document would outsmart the original thereofin its form and execution. It is only an expert ora detective in the field unearthing forgery ofdocuments can bring to light the duplicacy or https://hcservices.ecourts.gov.in/hcservices/ concoction applying his expertise. A Legal Advisoris not supposed to play the role of a documentexpert."15. Further, it is found that the petitioner in Crl.R.C.No.311of 2008, having gone through the encumbrance certificate produced,made a comment that the search made in the Sub Registrar's Officedoes not disclose any encumbrance. The search certificate given bythe petitioner in Crl.R.C.No.311 of 2008 does not indicate that hepersonally went to the Sub-Registrar's Office for the purpose ofmaking a search in the documents. The search can be conducted only bythe official of the office of the Sub-Registrar. No Advocate, evenif he goes to the Sub-Registrar's Office, can make a search in thedocument which are in the custody of the Sub Registrar. A party canonly file an application seeking search of documents to issue thenecessary encumbrance certificate. Therefore, it is far fetched tosay based on the search report that the petitioner in Crl.R.C.No.311of 2008 had furnished the search report as though he himself had goneto the Sub-Registrar's Office and made a search and submitted thesearch report.16. In fact, the petitioner in Crl.O.P.No.8844 of 2008 has givena qualified opinion directing the parties concerned to produce theoriginals relating to one of the properties for furnishing finalopinion. But, it appears that such a suggestion has not carried therequired message to the party concerned. 17. In the above facts and circumstances, I find that there isno incriminating material to show even prima facie that thesepetitioners were part of the criminal conspiracy alleged to have beenhatched to cheat the bank. The innocent legal professionals, whogave opinion as required by the legal profession, have been arrayedas accused. The legal profession will be, definitely, in peril ifthe legal professionals, for discharging their duty, are implicatedin criminal cases. No legal professional worth his salt would evercome forward to offer any legal opinion if such intimidation is instore for discharging the duties of legal profession. 18. Therefore, the court has no hesitation to discharge thepetitioner viz., third accused in C.C.No.13473 of 2005 and quash theproceedings in C.C.No.7651 of 2003 as against the third accusedtherein on the file of the Additional Chief Metropolitan Magistrate,Egmore, Chennai. As a result, both the criminal revision case andthe Criminal Original Petition stand allowed. M.P.No.1 of 2008 inthe revision case stands closed. Sd/- Asst.Registrar/True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssk. To1. The Additional Chief Metropolitan Magistrate, Egmore, Chennai-9. 2. Special Police Establishment, Central Bureau of Investigation, Economic Offences Wing, III Floor, "A" Wing, Rajaji Bhavan, Besant Nagar, Chennai-90.3. DRT & DRAT Bar Association,Spencer Towers, VI Floor,770-A, Anna Salai,Chennai 600 002.4. The Secretary,Madras High Court Advocates Association, High Court,Chennai 600 104. 5.The Inspector of Police,SPE, CBI, ACB, Chennai.6.The Public Prosecutor,High Court, Madras.Copy To : The Section Officer, Criminal Section, High Court, Madras.+ 1 cc to Mr.S.Karthikeyan,Advocate,SR.31551+ 1 cc to Mr.N.Chandrasekaran,Advocate,SR.31593Crl.R.C.No.311 of 2008 andCrl.O.P.No.8844 of 2008 BKY(CO)EM/23.7.09