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2014 DIGILAW 733 (ORI)

Nimai Charan Mohanty v. Republic of India

2014-11-10

S.K.MISHRA

body2014
JUDGMENT : S.K. MISHRA, J. In this Criminal Revision, the accused namely Nimai Charan Mohanty assails the order dated 07.02.2014 passed in T.R.No.2 of 201 0 of the Court of the Special Judge, C.B.I.-I, Bhubaneswar, rejecting his application under Section 239 of the Cr.P.C. to discharge him. 2. The investigation of the case was taken over by the C.B.I. as per the direction of this Court in W.P. (Crl.) No. 55 of 2003 vide order dated 24.04.2006. Specific direction was given by this Court to investigate the circumstance under which the original N.S.Cs. were permitted to be returned to the main accused. It was alleged in the F.I.R. that one Jagdish Prasad Saha, resident of Ward No.9, Baripada, Mayurbhanj and Puspa Oevi entered into conspiracy with others and in pursuance thereof had taken loans from the Evening and Baripada branches of the Mayurbhanj Central Cooperative Bank Ltd. (hereinafter referred to as the "MCCB Ltd.) to the tune of Rs. 9,49,500/- by pledging N.S.Cs. purportedly issued from G.P.O., Patna, Bihar though the same were purportedly stolen in transit. The outstanding balance against the loan was Rs. 13,17,349/- as on 31,03.2001. It was further alleged, that the N.S.Cs. shown issued from Patna G.P.O. favouring Jagadish Prasad Saha and Puspa Devi were pledged for obtaining those loans from the MCCB Ltd. It is further alleged by the prosecution that even after receiving the memos and Interim •Special Audit reports in this regard, the Secretary of the Bank and the Branch Managers of the said Bank preferred not to initiate any punitive action against the defaulter. 3. In course of investigation it transpires that the duties of the officers of the MCCB Ltd. in the matter of processing, sanction and recovery of loans against pledging of N.S.Cs. are envisaged in the "Mayurbhanj Central Co-op. Bank Loan against pledge of National Savings Certificate and Kisan Vikas Patra Rules." As per those Rules any officer of the Head Officer duly authorized by the Secretary and the Branch Managers were competent to sanction loan against pledge of the certificate. But the Branch Managers, were allowed to sanction such loan upto a limit Rs. 1 lakh only. However, they have exceeded their sanction limit and sanctioned the loan in favour of the aforesaid accused violating the rules of guiding the same. 4. But the Branch Managers, were allowed to sanction such loan upto a limit Rs. 1 lakh only. However, they have exceeded their sanction limit and sanctioned the loan in favour of the aforesaid accused violating the rules of guiding the same. 4. As far as the present petitioner is concerned, it transpires during investigation that on receipt of the specific and detailed report of the Audit Officers pointing out that the N.S.Cs. purportedly pledged for this loan were actually stolen in transit and figured in the negative list, accused Secretary B.K. Dash and Passing Officers Sk. Jallauddin did not take any action against the loanee. Later on receipt of the letter from the I.I.C., Baripada Police Station not to release the said N.S.Cs. even after repayment, accused Secretary B. K. Dash, brought the matter into the notice of the Collector and Management-in-charge of the MCCB Ltd. for obtaining an order. The Collector and Management-in-charge of the MCCB Ltd. formed a committee comprising of the Secretary of the Bank, Law Officer of the Bank, DRCS & ARCS of Baripada. He also allowed that the opinion of the Govt. Pleader may be taken, if need be. Secretary B.K. Dash instead of taking the opinion of the committee members, referred the file to the Government Pleader depicting an encouraging picture about repayment of loan. The Government Pleader N.C. Mohanty opined that the original N.S.Cs. may be returned to the loanee after retaining copies duly certified by one Executive Magistrate. Then a meeting of the Committee constituted by the Collector, attended by accused Secretary B.K. Dash, Makarfa Singh, DRCS and S.K. Jena, ACRS was held on 01.12.2010, in which the illegal opinion of said N.C. Mohanty, Government Pleader was ratified. The minutes of the said meeting were communicated to the then Branch Manager of Evening Branch. The application submitted by accused loanee J.P. Saha• for return of impugned N.S.Cs. was forwarded by the said Branch Manager to accused Secretary B.K. Dash, whose issued orders for return of the N.S.Cs. 5. The specific allegation against the present petitioner N.C. Mohanty, the then Government Pleader, Mayurbhanj, Baripada is that he is on conspiracy with others has given wrong opinion to release the stolen/ forged N.S.Cs. even though he had acknowledge that the Police were enquiring into the matter. 5. The specific allegation against the present petitioner N.C. Mohanty, the then Government Pleader, Mayurbhanj, Baripada is that he is on conspiracy with others has given wrong opinion to release the stolen/ forged N.S.Cs. even though he had acknowledge that the Police were enquiring into the matter. Upon completion of investigation, Charge-sheet has been submitted by the C.B.I. against the petitioner and the other accused persons for commission of the offences under Section 120-B read with 411, 420, 467, 468, 471 and 201 of the I.P.C. and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. After appearance of the accused persons, the petitioner filed an application to discharge him under Section 239 of the Cr. P. C. His application was rejected by the learned Special Judge, C.B.I., Bhubaneswar. Thereafter, the petitioner has filed a criminal revision before this Court bearing Crl. Revision No. 1005 of 2013, which was disposed of on 10.01.2014 by this Court remitting the matter back to the learned Special Judge, C. B.I. for reconsideration of the same and dispose of by passing a reasoned order after affording reasonable opportunity of hearing to both the parties. The petition of the petitioner was disposed of 07.02.2014 by the learned Special Judge, C.B.I.-1, Bhubaneswar in T.R.No.2 of 2010 rejecting his application under Section 239 o. the Cr.P.C. Such order has been assailed in this revision application. 6. At this stage, the fact of the opinion given by the petitioner is not in dispute. After referral of the same to him, the petitioner being the Government Pleader of Mayurbhanj district has given the opinion. It is apt to quote the same for better appreciation. "Secretary M.C. Co. Bank After going through the notings of the Collector, Mbj, and fact in issue involved and entire case history I opine as follows: Since the borrower has already paid Rs. 9 lakhs 60 thousand and 944 rupees to the Bank his intention is not to defraud the bank. In case he is willing to clear up the entire dues within the stipulated time as prayed for with the condition to release his pledged N.S.Cs. the Bank may release the same in the best interest of recovery of money, which is really the Govt. and Public money and the Bank is only the custodian. In case he is willing to clear up the entire dues within the stipulated time as prayed for with the condition to release his pledged N.S.Cs. the Bank may release the same in the best interest of recovery of money, which is really the Govt. and Public money and the Bank is only the custodian. Prior to such release the Bank must receive an application cum undertaking to that effect from the borrower. In view of the letters forwarded by I.I.C. Baripada town P.S. not to release the N.S.Cs. for future investigation, the Bank may get the Xerox copies of these N.S.Cs. duly attested by the Executive Magistrate, Authorized to alter and keep them for reference to show before investigating agencies. Moreover, the signature in the receipt for such return of N.S.Cs. in the register in details will be sufficient to corroborate then attested copies." 7. The admitted fact at this stage is that the matter was referred to the petitioner for his opinion as he was acting as a Government Pleader of Mayurbhanj district. He gave his opinion regarding the release of the N.S.Cs. in favour of the main accused. The question therefore remains whether such an act on the part of the petitioner will constitute an offence and that he has conspired with other accused persons to defraud the Bank. 8. learned counsel for the petitioner relying upon the reported cases of Central Bureau of Investigation, Hyderabad v. K. Narayana Rao, 2013 (1) OLR (SC) 74 and Nrusingha Nath Mishra v. Republic of India, (2010) 46 OCR 623 : 2010 (1) OLR 934 , argues that only on the basis of a wrong opinion given by an Advocate in absence of any other material to indicate that he has entered into a conspiracy with other accused persons, the accused cannot be charged of the offences complained of. The learned Retainer Counsel for the C.B.I., on the other hand, supported the order passed by the learned Special Judge, C.B.I. and has urged that the order passed by the learned Special Judge, C.B.I. does not suffer from any illegality and therefore, the same should not be disturbed. 9. The learned Retainer Counsel for the C.B.I., on the other hand, supported the order passed by the learned Special Judge, C.B.I. and has urged that the order passed by the learned Special Judge, C.B.I. does not suffer from any illegality and therefore, the same should not be disturbed. 9. Having gone through the order of the learned Special Judge, C.B.I., it appears that the learned Special Judge has entered into conjectures and surmises and has held that the petitioner has submitted a false legal opinion about the genuineness of the document in question. This finding regarding the legal opinion about the genuineness of the document in question does not arise in this case. The moot question that is to be decided at this stage is, if there are sufficient materials on record to find out if the present petitioner has entered into a criminal conspiracy with other accused persons to return the N.S.Cs. in favour of the main accused and in pursuance to such criminal conspiracy he deliberately rendered an illegal opinion. In the case of Central Bureau of Investigation, Hyderabad v. K. Narayana Rao (supra), the Supreme Court has held that a lawyer owes an "unremitting loyalty" to the interests of the client. The Supreme Court has further held that merely because his opinion may not be acceptable he cannot be mulcted with the criminal prosecution, particularly, in absence of tangible evidence that he associated with other conspirators. The Supreme Court has further held that at the most, he may be liable for gross negligence of professional misconduct if it is established by acceptable evidence and can not be charged of the offence under Section 420 and 109 of the I.P.C. along with other conspirators without proper and acceptable link between them. It is further made clear by the Supreme Court 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 were lacking in the reported case. 10. In the case of Nrusingha Nath Mishra v. Republic of India (supra), this Court has come to a conclusion that 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. 10. In the case of Nrusingha Nath Mishra v. Republic of India (supra), this Court has come to a conclusion that 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. 11. In this case, having gone though the records produced by the learned Retainer Counsel for the C.B.I., this Court has come to the conclusion that there is not an iota of evidence to show that there is a conspiracy between the petitioner and the other accused persons. The only admitted fact is the opinion given by the petitioner appears to be illegal. The opinion given in this case may not be legal in view of the fact that investigation of the case as pending. However, even if the N.S.Cs. are returned to the main accused after keeping copies thereof, the prosecution can well rely on the secondary evidence after laying foundation as envisaged under Section 65 of the Evidence Act and in no way the prosecution case can be weakened by the conduct of the petitioner. Nowhere in the charge-sheet filed by the C. B.I. the Investigating Agency, has clarified how and with whom the present petitioner has entered with a conspiracy as consequence of which he gave a wrong opinion to release the stolen/ forged N.S.Cs. There is also no material, direct or circumstantial, to hold that the petitioner has entered into a criminal conspiracy with other accused. 12. In that view of the matter, this Court has come to the conclusion that the ratio decided in the aforesaid cases is squarely applicable to the case in hand and the petitioner should not be mulcted in the criminal conspiracy. Accordingly, the Revision Application succeeds. The order dated 07.02.2014 passed by the learned Special Judge, C.B.I.-1, Bhubaneswar in T. R. No. 02 of 2010 is set aside and the application filed by the petitioner under Section 239 of the Cr.P.C. is allowed. He is discharged from the offence alleged against him. The Criminal Revision is accordingly allowed.