TANKADHAR MISHRA Vs. STATE OF ORISSA AND OTHERS

JUDGEMENT

(1.) The petitioner assails the initiation of the criminal proceeding initiated against him who is a legal practitioner vide C.I.D. P.S. Case Nos. 34 and 36 of 2008 pursuant to the report of the Senior Branch Manager, Bank of Baroda, Manisahu Chhak dated 14.8.2008.

(2.) The conspectus of the case of the prosecution is that the Bank of Baroda has engaged the petitioner as an Advocate. According to the F.I.R., one Smruti Ranjan Samantray being the proprietor of the firm M/s. The Heritage has availed cash credit facility of Rs.9, 50, 000/- from the branch of Bank of Baroda on 25.4.2006 against creation of equitable mortgage of landed property standing in the name of guarantor Saumya Ranjan Samantray. After necessary documents were submitted, the Bank in question engaged one S.K. Parida, Advocate to make investigation. Mr. Parida submitted the report on 7.2008 stating that the mortgager is not having any right, title and interest over the mortgaged property created in favour of the Bank of Baroda as the same stands in the name of Didbyasingha Das, but not in favour of guarantor Saumya Ranjan Samantray. Since the Bank got smell of fraud, they lodged F.I.R. before the Superintendent of Police of C.I.D., Crime Branch. While the investigation was running implicating the petitioner, he challenged the initiation of the criminal proceeding on the ground that the petitioner being a lawyer and having only rendered opinion, does not have any sort of criminal intention than only to supply professional opinion. Hence, the case is filed to quash the criminal proceeding and to pay damage of Rs.50, 00, 000/- after initiating Contempt proceeding against the Police Officers.

(3.) Mr. Milan Kanungo, learned Senior Advocate for the petitioner submitted that the petitioner being the Advocate for the Bank of Baroda was only entrusted to give opinion basing on the record and accordingly he gave opinion to the best of his ability. The Banking official has also rendered the opinion after visiting the field. The petitioner being Advocate has given his opinion as to whether the land can be free from encumbrances to mortgage and avail loan. Mr. Kanungo further submitted that petitioner cannot be said to have committed any offence when he has given his legal opinion basing on records, but without any request from Bank to visit field. He further submitted that the action taken by Bank and the Officers of the Crime Branch without verifying the records has cast allegation against the present petitioner falsely and as such his fundamental right accrued under Article 14 read with Article 19 of the Constitution are clearly violated. Thus, he prayed to quash the entire criminal proceeding.