Santosh Kumar vs Central Bureau Of Investigation

Heard the parties.

Apprehending his arrest, the petitioner has moved this Court for grant of privilege of anticipatory bail in connection with R.C. case no. 04 (S) / 2011-AHD-R registered under Sections 420/468/471/120B of the Indian Penal Code.

Learned counsel appearing for the petitioner submits that the petitioner is a panel lawyer of Punjab National Bank and the allegations against the petitioner is that he under criminal conspiracy with the co-accused person officers of the said bank, submitted false legal opinion and search report in respect of mutation of plot no. 163, which on enquiry was found to be a government land, by fraudulently and dishonestly mentioning in his report that he personally inspected the mutation records and found them genuine. It is then submitted that the allegations against the petitioner are all false. Learned counsel for the petitioner relies upon the judgment of Hon'ble Supreme court of India in the case of Central Bureau of Investigation, Hyderabad vs. K. Narayana reported in (2012) 9 SCC 512 where in a case relating to false legal opinion given by the lawyer to a bank in respect of 10 housing loans, in paragraph 24, 30 and 31, the Hon'ble Supreme Court has held as under :-

"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances 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.

Therefore, the 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.

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 misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 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."

And submits that in this case also there is no material in the record to show that the petitioner was an active participant in a plan to defraud the Bank nor there is any evidence to the effect that the petitioner was associated with the other conspirator and since the petitioner co-operated with the investigation made by the CBI, hence, the CBI did not feel it necessary to arrest him during the investigation of the case and the petitioner has no criminal antecedent, as mentioned in paragraph 21 of the anticipatory bail application. It is next submitted that the petitioner is ready to co-operate with the trial of the case and also ready and willing to deposit Rs. 1,00,000/- with the trial court by way of demand draft drawn in favour of the Registrar, Civil court, Ranchi hence, the petitioner be given the privilege of anticipatory bail.

The learned counsel for the CBI opposes the prayer for anticipatory bail of the petitioner and submits that since this is an year old case, the trail court be directed to expedite the trial.

Considering aforesaid facts and circumstances of the case, I am inclined to grant the privilege of anticipatory bail to the petitioner. Hence, in the event of arrest by the police or surrender within a period of two months from the date of this order, the petitioner shall be released on bail on depositing Rs. 1,00,000/- by way of demand draft drawn in favour of Registrar, Civil court, Ranchi as security and furnishing bail bond of Rs. 25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of learned SDJM-cum-Special Judicial Magistrate, CBI, Ranchi in connection with R.C. case no. 04 (S) / 2011-AHD-R subject to the condition that the petitioner will co-operate with the trial of the case along with the other conditions laid down under section 438 (2) Cr. P.C.

In case of the aforesaid amount is deposited by petitioner in the trial court, the trial court is directed to direct the Registrar of the concerned civil court to keep the said amount in Fixed Deposit at least for a period of two years with auto renewal clause and at the time of the conclusion of the trial, the trial court will pass appropriate order regarding the amount deposited by the petitioner in connection with this case.

Keeping in view the fact that this is a year old case, the trial court is directed to expedite the trial of the case and if there is no chances of appearance of the co-accused persons within a reasonable time, then trial court may consider splitting the case of the petitioner and conclude the trial preferably within a period of six months from the date of surrender of the petitioner in the trial court.