1. Rule. Learned APP Mr.H.L. Jani for the respondent no.1State and learned counsel, Mr.Pranav Desai for the respondent no.2 waive service of notice of rule.
2. The present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India, 1950 as well as under Section 482 of the Code of Criminal Procedure, 1973 for the prayer that order passed by the Chief Judicial Magistrate, Porbandar below application, Exh.32 (discharge) dated 30.11.2011 and the order passed in Criminal Revision Application No.57 of 2011 by the Additional Sessions Judge, Porbandar dated 10.06.2012 may be quashed and set aside on the grounds stated in the petition.
3. Heard learned counsel appearing for the respective parties.
4. Learned Sr. Counsel, Mr.N.D. Nanavati appearing with learned counsel, Mr.Mosam Nanavati submitted that impugned orders have been passed in an application for discharge of the petitioner under Section 239 of the Criminal Procedure Code. He submitted that both the Courts below have failed to appreciate that relevant material and evidence and have failed to appreciate that the applicantaccused, who was an advocate for the bank had only issued the certificate regarding the title clearance certificate. He submitted that he has not been named in the FIR, which is at Page No.38. He also referred to the FIR and submitted that as it transpires from the FIR, at the most the applicant could be attributed with negligence in discharge of his duty as an advocate that he has not made proper verification while issuing the title clearance certificate. He submitted that therefore considering the facts and the averments and allegations qua the petitioner in the FIR, he has not been alleged to have been involved in the alleged offences by other co accused. He referred to the facts relevant for the purpose and submitted that only averment or allegation is with regard to the negligence. He also referred to the impugned orders passed by the Court of Magistrate as well as Sessions Court and it is recorded that the applicant had made search before issuance of title clearance certificate. Therefore, he submitted that as a lawyer, he is only required to make search with regard to the title or any entry in the revenue record and on the basis of such verification, he may issue title clearance certificate, for which, he cannot be attributed with the alleged offences. It was, therefore, submitted that the present petition may be allowed. He further submitted that the Bank would make advances after verification of the documents and the petitioner, who is practicing advocate, cannot be said to have been involved for submitting any false or forged documents. He has also pointedly referred to AnnexureB, which is a communication from the Mamlatdar to the Branch Manager, State Bank of India informing that on verification of the record like Village Form Nos.7/12 & 8A from EDhara computer record, copy has been sent stating that Village Form Nos.7/12 & 8A have not been issued by the office of the Mamlatdar, which was referred to him for verification. Therefore he submitted that if at all said papers or the documents are not genuine, the petitioner as a practicing advocate, is not in any way responsible and cannot be attributed with any mensrea for the alleged offences. He has also referred to the Rules of SBI for credit loan in order to apprise the procedure for the sanction of such loans.
5. Learned APP, Mr.H.L. Jani, however, resisted the petition and submitted that it is on the basis of the title clearance certificate issued by the petitioner, the bank has made the advances and it was the duty of the petitioner as an advocate to make proper search before issuance of such title clearance certificate. He emphasized the order passed below application, Exh.32 by the Court of Magistrate and submitted that the advance for the huge amount has been made on the basis of the title clearance certificate given by the petitioner after making a search. He submitted that he would have made proper search as required from the advocate, who is issuing such certificate, however, he has failed to do so. He submitted that whether there was mensrea or mere negligence is a matter of appreciation of evidence, which may not be considered at this stage and, therefore, the present petition may not be entertained. He submitted that as it is evident from the order, the petitioner is said to have stated that as the document, which was produced before him did not raise any suspicion, he had issued the title clearance certificate. Therefore he submitted that it is the duty as an advocate that he is to make proper search from the office of the SubRegistrar after due verification of the revenue record and the entries, the title clearance certificate should be issued.
6. In view of the rival submissions, it is required to be considered whether the present petition can be entertained or not.
7. The submissions, which have been made by both the sides are required to be considered in back ground of the facts that the petitioner as a practicing as Advocate on a panel of the bank is said to have issued the title clearance certificate on the basis of which the bank made advances. However, when the documents were produced in the bank by the borrower as it was sent for scrutiny of such documents like Village Form Nos.7/12 & 8A to the office of the Mamlatdar had given opinion that it is not genuine, which has led to filing of the complaint for the alleged offences. The offences alleged are with regard to making of the false or forged documents and producing before the bank for the purpose of advances. At the same time as per the practice, the bank has referred the same to the petitioner for the title clearance certificate and the petitioner is said to have made search from the office of the Sub Registrar and Mamlatdar. On the other hand, it is also reflected that the petitioner is said to have stated that the documents submitted did not raise any suspicion, he had not doubted and has issued the title clearance certificate. This would imply that he has definitely remained negligent that without proper verification at the time of search or without proper verification of the revenue record and the entries in the revenue record, he issued title clearance certificate. However, at the same time even taking the statements and the averments in the FIR at the face value, there is no averment or allegation with regard to any involvement of the petitioner with other coaccused prior thereto i.e. before bank referred the said papers to the petitioners. In other words, there is no nexus between the petitioner and other co accused and even to primafacie suggest only that though such documents are not genuine, he has issued the title clearance certificate. This would imply that he has not been careful or rather negligent in issuing such certificate. Normally the Court would not interfere with such application for discharge under Section 239 of the Criminal Procedure Code as the Court below would have considered primafacie material for the purpose of deciding such application for discharge. Law regarding such application for discharge is well accepted. The Hon'ble Apex Court in a judgment in case of Smt. Om Wati & Anr. Vs. State, through Delhi Admn. & Ors., reported in AIR 2001 SC 1507 has made observations. However as discussed above, taking the material or the averments in the FIR as it is and taking the case of the prosecution at its face value, it has been that of negligent. As per the prosecution case, the applicant has been negligent or rather casual and it is not even primafacie case suggesting any involvement of the petitioneraccused from the inspection. He has been implicated later on at the stage of title clearance certificate, which is issued by him and that is the role attributed to him. The bank had referred the papers to him and he has issued such title clearance certificate. But there is no primafacie material suggesting any nexus with other coaccused suggesting any mens rea or in connivance from the inception. It is in this circumstances in the opinion of this Court, the present petition deserves to be allowed.
8. In view of the scope of exercise of discretion under Section 482 of the Criminal Procedure Code, it is required to be exercised with care and circumspection and the Court would not normally interfere. However as discussed above on bare reading of the allegation in the FIR coupled with material and evidence which has been reflected in the impugned orders, such order rejecting such application for discharge cannot be sustained as at the most, he could have been attributed with negligence but there is no mensrea or involvement with the knowledge about the alleged offences qua other coaccused. Therefore, the present petition deserves to be allowed.
9. In the circumstances, the present petition stands allowed in terms of Para No.7[B]. The impugned order passed by the Chief Judicial Magistrate, Porbandar below application, Exh.32 (discharge) and the order passed by the Additional Sessions Judge, Porbandar in Criminal Revision Application No.57 of 2011 dated 10.01.2012 are hereby quashed and set aside. The petitioner is discharged from Criminal Case No.3131/2010 pending in the Court of the Judicial Magistrate, First Class, Porbandar. Rule is made absolute. Direct service is permitted.
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(RAJESH H.SHUKLA, J.)
/patil