The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2764 of 2016 Basanta Ku. Behera …. Petitioner Mr. Debi Prasad Dhal, Sr. Advocate -versus- State of Odisha …. Respondent Mr. S. J. Mohanty, Addl. Standing Counsel CORAM: THE HON’BLE MR. JUSTICE CHITTARANJAN DASH Date of Judgment: 19.06.2025 Chittaranjan Dash, J. 1. By means of this application, the Petitioner, Basanta Kumar Behera, a practicing advocate, has approached this Court under Section 482 CrPC seeking to quash the order dated 16.05.2016 passed by the learned SDJM, Keonjhar, taking cognizance against him for offences under Sections 120-B/468/471/34 IPC in connection with G.R. Case No. 1338 of 2014, arising out of Keonjhar Town P.S. Case No. 273 of 2014. 2.
Facts
The background facts of the case are that, in a written complaint dated 04.08.2014 submitted by Pratap Chandra Nayak, the then Senior Branch Manager of Syndicate Bank, Keonjhar Branch (hereinafter referred to as the „Bank‟), alleged that during the period of 2011–2012, the Bank had sanctioned 11 tractor loans to various individuals and a cash credit loan of ₹10 lakhs to one CRLMC No. 2764 of 2016 Page 1 of 12 Duryodhan Das, the proprietor of M/s Rahul Enterprises. These loans were sanctioned based on mortgage of immovable properties, purportedly supported by title deeds, RORs, rent receipts, and other revenue documents. Subsequent internal audit conducted during May–June, 2013, revealed that these documents were forged. A second legal opinion obtained from Advocate Ajay Kumar Nath confirmed the forgery. It was discovered that the documents bore fake seals and signatures of public authorities, and were created with the intent to defraud the Bank. Undeniably, one Duryodhan Das, had introduced the borrowers to the Bank and received the loan disbursements. He later absconded, closing his business. The Petitioner herein, had rendered legal opinions certifying the genuineness of these forged documents. As a result, he was arrayed as an accused along with Duryodhan Das, the borrowers, and the then Branch Manager, Ramesh Chandra Giri. The Investigating Officer, after examining several witnesses including Bank staff and obtaining relevant documents, filed Charge Sheet No. 01 dated 31.03.2016, implicating the Petitioner under Sections 120-B, 468, 471, and 34 IPC. It is alleged that the Petitioner, in connivance with the Branch Manager and others, knowingly validated forged documents, leading to a loss of around ₹69,29,000 to the Bank. 3.
Legal Reasoning
“3. To examine the question as to whether a case under sections 420/120-B IPC has been made out or not, it would be apt to examine as to whether by accepting the prosecution case in its entirety, the ingredients of sections 420/120-B IPC exit or not. Section 420 IPC relates to an offence of cheating and dishonestly inducing the person deceived to deliver any property to any person, or to make, alter or destroy the whole or part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. 4, In the instant case, there is absolutely no allegation made by the prosecution with regard to the Petitioner or the co-accused cheating the New India Assurance Company Ltd. and dishonestly inducing the said company to deliver any property. As a matter of fact, the prosecution has admitted that on lodging of the claim by the Petitioner, the claim was settled and the prosecution never alleges that before settling the claim, due procedure was not followed. With regard to the offence under section 120-B IPC, there is absolutely no material or allegation made by the prosecution, prima facie, satisfying the ingredients of the said offence which relates to punishment of criminal conspiracy as defined in section 120-A IPC. CRLMC No. 2764 of 2016 Page 7 of 12 No materials whatsoever have been brought out during the investigation to show any agreement or conspiracy between the two co-accused persons to commit any offence. At this juncture, it would be profitable to note that the other co-accused is an advocate, who was engaged by the New India Assurance Company Ltd. to investigate the case and while performing such professional work, he sent a report that he could not trace out any records regarding hospitalization of the Petitioner at S.C.B. Medical College, Hospital. There is no material whatsoever to show prima facie that the co-accused in order to cause an illegal gain to either himself or the Petitioner or to cause illegal loss to the company gave such a report. A report or opinion rendered by an advocate, to his client, if found to be incorrect, cannot constitute an offence when nothing is shown that such report or opinion is purposefully given to commit any offence. The prosecution has also not come out with any material disclosing meeting of mind between the two accused persons to bring home the charge under section 120-B IPC. Rather, the allegation in the F.I.R. was made that the co-accused conspired with one Beni Madhan Dwivedi, who was functioning as a Divisional Manager and the said Beni Madhab Dwivedi is not an accused in the charge sheet filed. 5. The impugned order passed by the learned C.J.M. taking cognizance of the offence under sections 420/120-B IPC ex-facie shows non-application of judicial mind by the learned C.J.M. It is a settled position of law that when a charge sheet is filed after investigation against the accused persons alleging commission of offence, the court taking cognizance is to apply his judicial mind to find out as to whether there is any material showing that such offence has been committed. jurisdiction exercising 6. The Court, while under section 482 Cr.P.C. to quash a criminal proceeding, no doubt, should exercise such power sparingly and with circumspection. If, however, it is found that on accepting the materials produced by the during prosecution, which were collected CRLMC No. 2764 of 2016 Page 8 of 12 investigation along with the F.I.R. in its entirety, do not disclose commission of any offence, the court is to quash the criminal proceeding in order to prevent abuse of the process of the court and to secure the ends of justice. (See State of West Bengal and others v. Swapan Kumar Guha and others, AIR 1982 SC 949, State of Haryana and others v. Ch. Bhajan Lal and others, AIR 1992 SC 604, Sanu Das and another v. State of Orissa and another, 1999 (I) OLR 442, G. Sagar Suri and another v. State of U.P. and others, (2000)18 OCR (SC) 355, Ajaya Mitra v. State of M.P. and others, (2003) 25 OCR (SC) 226, Uma Shankar Mishra v. State of Orissa, (2003) 25 OCR 611 and Hira Lal Hari Lal Bhagwati v. CBI. New Delhi, (2003) 25 OCR (SC) 770).” 8. Similar view has been taken by this Court in the decision in the matters of Nimai Charan Mohanty vs. Republic of India reported in (2015) 1 OLR 292 as well as Kulamani Parida vs. State of Odisha reported in 2023 (I) ILR – CUT – 611, wherein it is held as follows – the under “16. In such view of the matter, the allegation appearing in the F.I.R. and the complaint of the Bank vis-à-vis the Petitioner does not make out a case Sections offences constituting 420/467/468/471/120-B IPC as neither the Petitioner is part of the business transaction allegedly to have conducted by the co-accused persons having interest therein nor that the document in question allegedly to have been forged and fabricated is attributed to the present Petitioner in absence of a material showing his personal interest in any gain/loss of the parties conducting business except that he retains his professional interest. This Court while dealing with the matter is alive of the fact that the offences alleged are the category of offence involving the moral aptitude and detrimental to the society in general but have strong conviction that the act of the Petitioner in discharging his professional duty is above all the CRLMC No. 2764 of 2016 Page 9 of 12 allegations alleged save and except discharging part of his professional duty. Consequently, this Court finds no material to proceed against the Petitioner attributing the criminal liability so as to continue the proceeding. The learned court below having not specifically recorded any reasoning vis-à-vis the present Petitioner erroneously travelled in taking cognizance against the Petitioner and is as such liable for being interfered with exercising the jurisdiction under Section 482 Cr.P.C.” 9. In the instant case, there is a conspicuous absence of any prima facie material to suggest that the Petitioner entered into a conspiracy with the co-accused persons to commit forgery or use forged documents within the meaning of Sections 120-B, 468, or 471 of the IPC. As an advocate, the Petitioner was engaged solely to render legal opinions on documents submitted to him by the Bank. There is no allegation that he played any role in preparing or fabricating those documents, nor is there any evidence suggesting that he had knowledge of their forged nature. The settled legal position, as laid down by the Hon‟ble Supreme Court in CBI vs. K. Narayana Rao (Supra), is that criminal liability cannot be fastened on a legal professional for merely rendering an incorrect opinion, unless there is material showing that the advocate actively participated in a fraud. This principle has been consistently affirmed by this Court as well, notably in the abovementioned decisions, where it is held that an advocate‟s incorrect report, in the absence of any evidence of intention to cheat or conspire, does not constitute an offence under Sections 420 or 120-B IPC. In the present matter, the charge of conspiracy under Section 120-B IPC is not substantiated by any direct or circumstantial evidence showing a meeting of minds or any form of collusion. Likewise, to attract CRLMC No. 2764 of 2016 Page 10 of 12 Section 468 IPC, which requires forgery for the purpose of cheating, and Section 471 IPC, which deals with use of forged documents as genuine, there must be material demonstrating that the accused either forged the document or knowingly used it despite knowing it to be forged. The Petitioner‟s role, by contrast, is limited to certifying the documents for their legal sufficiency not their factual authenticity and he has consistently maintained that his opinion was based on materials provided by the Bank without any instruction or expectation to conduct independent field verification. In the absence of any allegation of personal gain, active abetment, or conscious facilitation of fraud, continuing criminal proceedings against the Petitioner would amount to an abuse of process. The application of Sections 120-B, 468, and 471 IPC to the facts of this case is therefore legally unsustainable. 10. In view of the foregoing discussion, and upon a careful perusal of the record as well as the applicable legal principles laid down by the Hon‟ble Supreme Court and this Court, this Court is of the considered view that the prosecution has failed to bring on record any material that would indicate the Petitioner‟s involvement in the alleged criminal conspiracy or forgery. An erroneous or imperfect professional opinion, rendered in good faith and within the scope of engagement, cannot by itself give rise to criminal liability. The law draws a clear distinction between professional misjudgment and criminal intent. In absence of cogent evidence of collusion or fraudulent scheme, no penal consequences can follow merely because the opinion later turns out to be incorrect. The role attributed to the Petitioner is confined to the rendering of legal opinions in his professional capacity as an advocate. There is CRLMC No. 2764 of 2016 Page 11 of 12 neither any specific overt act alleged against him nor any cogent material suggesting that he acted in concert with the principal accused persons to commit the offence. The materials on record fall far short of establishing the essential ingredients of Sections 120-B, 468, or 471 of the Indian Penal Code. 11. 12. Accordingly, the CRLMC is allowed. The impugned order dated 16.05.2016 passed by the learned SDJM, Keonjhar in G.R. Case No. 1338 of 2014, arising out of Keonjhar Town P.S. Case No. 273 of 2014, taking cognizance against the Petitioner under Sections 120-B/468/471/34 IPC, as well as all consequential criminal proceedings so far as the present Petitioner is concerned, stand quashed. (Chittaranjan Dash) Judge K.C.Bisoi/A.R-cum-Sr. Secretary Signature Not Verified Digitally Signed Signed by: KRUSHNA CHANDRA BISOI Reason: Authentication Location: orissa high court Date: 20-Jun-2025 16:15:46 CRLMC No. 2764 of 2016 Page 12 of 12
Arguments
Mr. D. P. Dhal, learned Sr. Counsel appearing on behalf of the Petitioner, submits that the role of the Petitioner was limited to providing a legal opinion based solely on documents supplied by the Bank officials, and he had no reason or obligation to verify their authenticity from the original sources such as the Sub-Registrar or Tehsil offices. Mr. Dhal further asserts that the Petitioner had no knowledge of the forgery and had not entered into any conspiracy CRLMC No. 2764 of 2016 Page 2 of 12 with the co-accused. He acted in good faith and without any mens rea. Mr. Dhal further contends that the charge of conspiracy against him is unfounded and unsupported by any direct evidence and placed his reliance on the decision of the Hon‟ble Supreme Court in CBI Hyderabad vs. K. Narayan Rao reported in (2013) 1 OLR (SC) 74, where it was held that mere submission of a wrong legal opinion, in the absence of any material showing connivance with other accused, cannot attract criminal liability; a similar position has also been reaffirmed by this Court in Tankadhara Mishra v. Republic of India reported in (2022) 87 OCR 397. Mr. Dhal asserts that legal professionals cannot be criminally prosecuted merely because a document later turns out to be forged, unless there is specific material indicating intentional participation in the fraudulent act. He reiterates that the Petitioner‟s professional duty was confined to the documents handed over to him, and there is no material on record to show that he had knowledge of their forged nature or that he was part of any fraudulent arrangement. Mr. Dhal finally concludes by praying for the criminal proceedings against the Petitioner be quashed in the interest of justice. 4. Mr. S. J. Mohanty, learned Additional Standing Counsel for the State, while opposing the Petitioner‟s prayer for quashing of the cognizance order, contends that there are sufficient materials on record to proceed against the Petitioner for offences under Sections 120-B, 468, 471, and 34 of the IPC. He submits that during the period of 2011–12, the Keonjhar Branch of Syndicate Bank sanctioned tractor and cash credit loans to various individuals based on forged revenue documents such as RORs and rent receipts which were certified as genuine by the present Petitioner in his capacity as CRLMC No. 2764 of 2016 Page 3 of 12 legal advisor. The matter only came to light during an internal audit during May–June 2013 and when a second legal opinion was sought from Advocate Ajaya Kumar Nath revealed the use of forged documents. He further submits that during the investigation, the I.O. recorded statements under Section 161 CrPC of key witnesses, including Bank officials and advocates, who consistently stated that the Petitioner was selected as legal advisor by the then Branch Manager without authorisation from the Regional Office, and had vetted forged documents submitted by the accused borrowers. Mr. Mohanty asserts that the witnesses have categorically alleged that the Petitioner, along with the Branch Manager, the borrowers, and one Duryodhan Das, conspired to cheat the Bank and caused wrongful loss of ₹69,29,000/-. Mr. Mohanty argued that at the stage of cognizance, the Magistrate is not required to conduct a detailed analysis of the merits or the sufficiency of evidence. It is enough if the material on record discloses a prima facie case. He further his argument by stating that it is not expected to weigh the evidence but only to see whether there exists sufficient ground to proceed, and placed his reliance on various Supreme Court decisions in the matters of M. Srikanth vs. State of Telangana (2019) reported in 10 SCC 373 and State of Gujarat vs. Afroz Mohammed Hasanfatta reported in (2019) 20 SCC 539. Mr. Mohanty asserts that a Magistrate can take cognizance based on the police report and accompanying documents without giving detailed reasons. He also contends that Section 482 CrPC is not to be invoked as a matter of routine to stifle legitimate prosecution and in view of the consistent witness testimonies, the nature of the allegations, and the materials collected during investigation, the Petitioner‟s role is not merely CRLMC No. 2764 of 2016 Page 4 of 12 professional but forms part of a wider conspiracy. Mr. Mohanty concludes his argument by stating that the learned SDJM, Keonjhar rightly took cognizance and the present CRMLC is devoid of merit and liable to be dismissed. 5. Before delving into the core legal question of whether a legal professional can be held criminally liable for the opinions rendered in discharge of professional duty, it is necessary to acknowledge the peculiar nature of the allegations in the present case. The Petitioner, an advocate by profession, is sought to be implicated not on the basis of any overt fraudulent act, but for having certified, in his professional capacity, the genuineness of certain documents which were later discovered to be forged. In such a backdrop, it becomes imperative to examine whether the material on record justifies the criminal proceeding against the Petitioner. This issue has engaged the attention of both the Hon‟ble Supreme Court and various High Courts in several decisions, which provide a guiding framework for determining the scope and limits of liability in such circumstances. 6. The Hon‟ble Apex Court in its decision in the matter of Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao reported in 2012 (9) SCC 512, has held that – “23) 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 CRLMC No. 2764 of 2016 Page 5 of 12 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. In Jacob Mathew vs. State of Punjab & 24) Anr. (2005) 6 SCC 1 this court laid down the standard to be applied for judging. To determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. 25) In Pandurang Dattatraya Khandekar vs. Bar Council of Maharashtra & Ors. (1984) 2 SCC 556, this Court held that “…there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct. 26) Therefore, 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. 27) 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 the CRLMC No. 2764 of 2016 Page 6 of 12 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.” 7. This Court too in the matter of Nrusingha Nath Mishra vs. Republic of India reported in 2010 (I) OLR 934, has held that –