Virender Singh, J. - Cr. Rev. No. 23/2012:

1. The instant revision petition has been filed by the Central Bureau of Investigation (For Short "CBI") against the order dated 21-01-2012 passed by learned Special Judge, Anti Corruption (CBI Cases), Jammu; whereby respondent-Ravinder Sharma stands discharged in case FIR No. RC0042010A0007 dated 26-11-2011 for the offence punishable under Sections 120-B, 420, 467, 468, 471 RPC & 5(2) read with Section 5(1) (d) of Jammu & Kashmir Prevention of Corruption Act.

2. It needs to be mentioned here that along with the respondent, his two other co-accused, namely Gharu Ram and Vinod Kumar, were also sent by C.B.I, to face trial. The trial Judge has, however, found sufficient material on record to believe that they are guilty of offence under Section 120-B read with Sections 420,467,468,471 RFC and 5(1) and Section 5(2) of Jammu and Kashmir Prevention of Corruption Act, as such, ordered framing of charges against them, whereas the respondent stands discharged. However, they have not filed any revision against the said order.

3. Inadvertently, Gharu Ram and Vinod Kumar were also arrayed as respondents by the CBI, but subsequently vide order dated 10th of April, 2012 their names stand deleted. The instant revision petition, thus, survives qua respondent only.

4. In brief, the case of the prosecution is that; Gharu Ram, proprietor of M/S Jai Laxmi Rice Mills (since charged) approached Punjab National Bank (For short "PNB"), Canal Road Branch Jammu for securing credit facility to the extent of Rs. 30.00 lacs as term loan and Rs. 60.00 lacs as working capital to establish a Rice Mill. He offered securities in the form of entire stock of raw material with plant and machinery and some miscellaneous fixed assets including collateral security of land measuring 16 kanals and 03 marlas. Mortgage Deed elated 20-08-2007 was executed in this behalf.

5. It is then the case of the prosecution that in October, 2008, Gharu Ram approached the aforesaid Bank for enhancing his CC limit from Rs. 60.00 lacs to Rs. 1.25 crores in lieu of additional collateral securities in the form of land measuring 11 kanals and 16 marlas vide Mortgage Deed dated 29-10-2009. The prosecution alleges that Gharu Ram submitted fake and forged documents in connivance with Bank officials, who by misusing their official position, accepted the same for sanctioning the loan.

6. It is further the case of the prosecution that revenue officials also misused their official position by using false revenue documents and later marked fake lien in favour of mortgagee-Bank. Vinod Kumar son of Govind Ram, Patwari Halqa Chohala Tehsil R.S.Pura, a revenue official, has also been challaned in this case and charged along with aforesaid Gharu Ram.

7. Gharu Ram is said to have used the loan amount for his personal ends and no payment was made to the Bank. Ultimately, the loan turned NPA. The investigation further revealed that he was running poultry farm, a firm under name and style of M/S G. R. Traders in his own name and a grocery shop under name and style of M/S V. K. Kiryana which was being run by his wife Nirmala Kumari; whereas he had sought loan from PNB for establishing Rice Mill against primary and collateral securities. It also revealed that he had submitted forged copies of Intiqal, Jamabandi and Aks Shajra of land measuring 14 kanals and 03 marlas under Khasra No. 316 min, 237 min and 209 min. He was also found to be a defaulter of Canara Bank.

8. It needs to be mentioned here that no concerned Bank official was booked in this case by CBI. Rather, some of the Bank Officials have been shown in the list of the prosecution witnesses.

9. The allegation against the respondent, who is an empanelled Advocate of PNB is that he prepared false search reports certifying that the borrower had clear, valid and marketable title over the properties rendering him competent to mortgage the same and this was done without establishing ownership of property from mutation in the revenue record. It is further alleged that the respondent did not search the record resulting in failure to detect forgery committed by Vinod Kumar in connivance with Gharu Ram.

10. Primarily, on the basis of aforesaid allegations, CBI found the complicity of the respondent in the aforesaid offences with the aid of Section 120-B RPC along with his main two accused. Sanction was obtained for prosecuting Patwari Vinod Kumar.

11. Heard Mr. Raina, learned Sr. Advocate assisted by Mr. Hamal appearing for the CBI, Mr. S. S. Lehar, learned Sr. Advocate assisted by Mr. Meharban Singh and Mr. B. S. Salathia learned Sr. Advocate assisted by Mr. Ashish Sharma, appearing for the answering respondent. I have also gone through the grounds carved out in the instant revision petition, the impugned order and the other relevant record.

12. While drawing the attention of the Court to para No. 6 of the impugned order which is made basis of discharging answering respondent, Mr. Raina submits that the learned Special Judge has observed that the Investigating Agency has not alleged that in the instant case Rules governing the conducting of search and inspection of records have been infringed,which part of observation, according to him, is factually incorrect, inasmuch as, Circular No. 5/LAW/2003 dated 20th of August, 2003, issued by Head Office of PNB is forming part of the challan and in support thereto, CB1 had also recorded the statements of four official witnesses of the Bank, namely Vinod Kumar, Sanjay Kumar Jain, Jatinder Kumar Sharma and R. L. Dogra, who, in their statements, have also referred to the said Circular which clearly indicates that the Empanelled Advocate has to establish the ownership of the property from mutation in the name of a person and offering mortgage in the revenue records in case of agricultural land.

13. Mr. Raina further submits that as per the aforesaid Circular, there is a complete format, which is required to be filled, with regard to report on title having many columns including particulars of the property and the investigations to be carried out by the empanelled Advocate before issuing Non-incumbrance Certificate. In the present case, certain irregularities have been committed by the respondent being an empanelled Advocate for the Bank while preparing search report certifying that Gharu Ram was having clear, valid and marketable title over the properties to be mortgaged. This is the reason that he is allegedly shown to be involved in this case with the aid of Section 120-B RFC only.

14. Per contra, supporting the order of discharge, Mr. Lehar, learned Sr. Advocate, submits that the respondent cannot be said to be even remotely linked with the offence allegedly committed by Gharu Ram, who approached the Bank for the loan/CC limit and even Vinod Kumar Patwari, who allegedly prepared some revenue documents. He then submits that whether the documents were forged or not is not the job of empanelled Advocate to look into. The role of the empanelled Advocate is only limited for issuance of Non incumbrance Certificate and for issuance of the same, the search is conducted in the office of Registrar/Sub-Registrar concerned, for which, inspection of certain books and indexes is allowed under Section 56 of the Registration Act. In the case on hand, the respondent being an empanelled Advocate followed all the Rules strictly for conducting the search and thereafter issued the Non incumbrance Certificate.

15. While strengthening his arguments, Mr. Lehar further submits that the empanelled Advocate has primarily to examine the revenue records furnished to him by the officials of the Bank for the purposes of his opinion. It is none of his professional duty to go to the revenue officials for cross checking the revenue records prepared by Patwari. He then submits that it is nowhere the case of the CBI that the answering respondent changed any revenue record or committed forgery with the same. If, at all, any forgery is committed, it can be attributed to the Patwari concerned. Therefore, what was there in the revenue records available to the respondent, he being an Empanelled Advocate of the Bank submitted the same to the Bank and thereafter it was the job of the Bank officials to grant loan or any limit to the concerned person.

16. Mr. Lehar lastly submits that even from the statements of the witnesses, on which, Mr. Raina, learned Sr. Advocate for the CBI, is relying heavily, the same cannot be said to be sufficient to believe that the answering respondent had connived with his two other co-accused. The Circular, in fact, is in the shape of certain guidelines prepared for the Advocates who are on panel of different branches of the Bank. It is by way of internal arrangement to set the house in order. It has no legal entity. Therefore, there appears to be no material much less sufficient material on record to believe that the respondent is, prima facie, guilty of the offence even with the aid of Section 120-B RPC.

17. In support of his submissions, Mr. Lehar, not only relied upon a Judgment of Andhra Pradesh High Court in case K. Kishore Kumar Reddy v. State and another, reported as 2011 Cri LJ (NOC) 362 (AP), reference thereto has already been made by the learned Special Judge in para No. 6 of the impugned order, he also relies upon another Judgment of Punjab and Haryana High Court in case Mohinder Singh v. State of Haryana, CRM-M No. 33103 of 2008 (O&M) decided on 15th December, 2009 (Photostat copy placed on record).

18. Section 227 of Code of Criminal Procedure (Central Code) is in pari materia to Section 268 of Code of Criminal Procedure Samvat 1989 (State Code). It reads thus:

268. Discharge

"If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceedings against the accused he shall discharge the accused and record his reasons for so doing."

19. In a recent judgment in case Sajjan Kumar v. Central Bureau of Investigation, reported as (2010) 3 SCC (Cri) 1371, the Apex Court on considering its previous judgements rendered on the point has laid down the following principles to be followed while considering the prosecution case for charge:

"(i) The Judge while considering the question of framing the charges under Section 227 Criminal Procedure Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.

(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

(iii) the Court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accusedhas committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."

20. It is profitable to refer to another Apex Court judgement rendered on the point in case P. Vijayan v. State of Kerala & anr., reported as (2010) 2 SCC 398 [LQ/SC/2010/127] in which their Lordships in para 10 observed thus:

"10. Before considering the merits of the claim of both the parties, it is useful to refer to Section 227 of the Code of Criminal Procedure, 1973, which reads as under:

"227. Discharge.- If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing."

If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts."

21. Let us examine the case on hand qua the respondent following the aforesaid principles of law.

22. No doubt, the search certificate is prepared by the respondent certifying that the accused Gharu Ram was having clear, valid and marketable title over the properties to be mortgaged to enable him to create a valid Mortgage Deed on the basis of documents made available to him by the Bank. But admittedly, there is no material on record to say that he had conspired with the borrower or had any knowledge about the submission of false documents by him to the Bank. It is the borrower only who approached the Bank officials with all documents which contained certain forged documents also allegedly prepared by Patwari Vinod Kumar. These documents reached the hands of the respondent thereafter for a limited purpose. All required formalities were already completed by the bank officials, who were handed over the revenue document(s) also by the borrower only. Therefore, even by any stretch of imagination, it cannot be said that the respondent had at any stage connived with either of his two co-accused for forging revenue documents, which were admittedly prepared before issuance of search certificate.

23. The learned trial Judge, while appreciating the aforesaid aspect on the basis of material available on record, has observed that the case of the respondent does not fall within the mischief of Section 120-B RPC. For facility of reference, para No. 6 of the impugned Judgment needs to be reproduced. It reads:

"A-3 in his capacity as empanelled Advocate prepared the search report certifying that A-l was having clear, valid and marketable title over the properties to be mortgaged to enable him to create a valid Mortgage Deed. Preparation of search certificate on the basis of documents made available by the Bank does not postulate that he engaged in criminal conspiracy with Al and A2. It was the professional duty of empanelled Advocate to prepare the said certificate. There is no material to even come to a prima facie conclusion that A3 conspired with the borrower or that he had prior knowledge about submission of false documents by the borrower to the Bank. There is also no material to even suggest and no circumstances have been shown to exist from which an inference could be raised that A3 had connived with the borrower in preparation of the search certificate. The search certificate is prepared after examining and inspecting the books maintained by Registrar/Sub Registrar. The searches are allowed under section 56 of the Registration Act after the search fee is deposited. The inspection of records is regulated by the Rules framed under the Registration Act. The Investigating Agency has not alleged that in the instant case Rules governing the conducting of search and inspection of records have been infringed. Admittedly the applications for conducting search were supported with affidavits sworn to the effect that the subject of mortgage was free from all encumbrances and search fee was deposited with the Sub Registrar. There is no procedure for issuance of non-encumbrance certificate by the District Judge. It is the empanelled Advocate who was to inspect the record of Sub Registrar, examine the Revenue record furnished by the Bank and the borrower and give opinion on its basis. The professional duties of empanelled Advocate did not enjoin upon him to approach the Revenue Officials for verification/cross checking of the Revenue record.

In the absence of allegations of prior concert of A-3 with the borrower individually or with Al and A2 conjointly, A-3 cannot be branded as a collaborator in crime of cheating on the basis of fabrication of fake and forged documents. Admittedly, A3 had a limited role to play. He came on the scene after the borrower approached the Bank seeking credit facility on the strength of documents which are alleged to have been forged. Such documents were allegedly passed on as genuine by the borrower to defraud the Bank. Till that stage A3 had not emerged on the scene. It is absurd to allege that A3 prepared a false Search Certificate when the land offered as security, but for a small parcel of land measuring 2 kanals, was either non-existent or belonged to others. Lack of diligence or even negligence on the part of A3 in certifying the result of search of books and records maintained by the Registering Officers, per se, does not amount to a crime. In K. Kishore Kumar Reddy v. State and another, reported in 2011 Cri. LJ (NOC) 362 (AP) the Honble High Court of Andhra Pradesh held that the Advocate tendering opinion about title deeds as genuine and property covered by documents having marketable title, even though failed to exercise more care, cannot be accused of committing any criminal offence. It was held that even if it is considered that the Advocate was not diligent while giving his legal opinion, he cannot be said to be involved in any criminal offence."

24. I do not find any infirmity in the approach adopted by the learned trial Judge.

25. Much stress has been laid by Mr. Raina with regard to Circular No. 5/LAW-2003 dated 20th of August, 2003 stating that guidelines of this circular have been infringed and that the observation made by the learned Special Judge, is contrary to the facts.

26. Prima facie, the argument of Mr. Raina appears to be somewhat attractive, but when appreciated it in its right perspective, it looses its weight. It goes without saying that the aforesaid Circular has no legal entity. It is the Circular prepared by Law Division of Bank laying down certain guidelines for the Advocates, who are on the panel of different branches of the Bank. In other words, while preparing the search certificate or report with regard to title of any property, the Advocates are supposed to follow those guidelines. If there is any infringement of these guidelines contained in the said Circular by any counsel, it would not attract any connivance of the empanelled lawyer with the borrower, which has to be tested on the touchstone of criminal liability. The guidelines are in the shape of note of caution for the purposes of supplying proper information to the bank.

27. Even from the statements of official witnesses of the bank, Mr. Raina cannot derive any advantage, so as to make out a case, that there is sufficient material on record to connect the respondent with the commission of alleged offence of criminal conspiracy along with his other two co-accused who have already been charged.

28. Perusal of the statement of Vinod Kumar, who has been cited as PW No. 4 in the challan, he has no where stated that empanelled lawyer (answering respondent) was asked to give his opinion after searching the revenue documents in terms of aforesaid Circular. Rather, he was ignorant about Circular before recording of his statement on 27-08-2011. In the last para of his statement, he states that "today I have been shown Circular No. 5/LAW/2003 dated 20-08-2003 issued by the Law Division Head Office New Delhi Punjab National Bank".

29. So is the position of even other witnesses.

30. The Judgment rendered in case K. Kishore Kumar Reddys case (supra) squarely covers the case of the respondent so as to exonerate him of the alleged charge (s).

31. In the aforesaid case, the petitioner was also a practising Advocate and was booked in a case for the offences punishable under Sections 420/468/120-B IPC on the allegation that he gave opinion about the title deeds as genuine and property covered by documents having marketable title without property verification. It is the further allegation that he examined document produced by the parties and gave his opinion that the documents are genuine and property had marketable title. It was held by the High Court of Andra Pradesh that though the petitioner therein failed to exercise more care, the allegations against him did not disclose any criminal offence at least. Ultimately, proceedings against him were quashed observing that continuation of case against him would be miscarriage of justice.

32. Ratio of Mohinder Singhs case (supra) is also applicable to the facts of the present case.

33. In case Hira Lal Jain v. Delhi Administration, reported as AIR 1972 SC 2598 [LQ/SC/1972/418] ; wherein an Advocate was engaged by some persons for identifying them as claimants in an application made on their behalf to claim certain land acquisition compensation amount and the advocate believing the statements of the claimants as true filed his Vakaltnama agreeing to act on their behalf without there being any evidence to show that there was prior knowledge on the part of advocate that the claimants were not the real persons entitled to claim the amount and no concert between the former and the latter was brought on record. It was held by Honble Supreme Court that it could not be said that there was, prima facie, evidence entitling the Magistrate to commit the advocate for offences under Sections 120-B read with 419, 420, 511, 467 and 471 Penal Code.

34. Testing the present case on the basis of the evidence available on record against the respondent in the final report (challan) filed by CBI and following the principles laid down in Sajjan Kumars case (supra) and P. Vijayans case (supra), in my considered view, there is no material much less sufficient material showing the existence of all the ingredients constituting the alleged offence of Section 120-B RPC so as to put him to face trial along with his two other co-accused, namely Gharu Ram and Vinod Kumar, who have already been charged by the learned trial Judge.

35. Viewed, thus, finding no infirmity in the impugned order discharging the respondent, the revision petition on hand stands dismissed being devoid of any merit in it.

36. CrMA No. 22/2012 also stands disposed of.