Javed A. Farooqui vs State Of Madhya Pradesh

This petition has been filed under Section 482 of Cr.P.C. to invoke the extra ordinary jurisdiction of this Court and to quash the FIR at Crime

No.243/2007 lodged at Police Station, Ratibad, Bhopal for the offence punishable under Sections 420, 467, 468, 420-B and 34 of I.P.C.

Bereft of the unnecessary details, the facts necessary for disposal of this petition are that accused Rishi Parashar executed a sale deed on 05.03.2012

and sold out property Flat No. F-2, Plot No.22 First Floor, Ashiyana Home to Bhagwat Prasad Khare and Rajendra Kumar Shrivastava.

Rishi Parashar keeping Bhuwanlal Malviya in dark and executed a sale agreement with Bhuwanlal. Because fraud and cheating was caused,

Bhuwanlal lodged report that the accused Rishi Parashar in connivance with the present applicant Advocate Javed Farooqui on the basis of false facts

executed the sale deed and mortgaged it before the Punjab National Bank and obtained a loan of Rs.12,50,000/-. When the complainant Bhuwanlal

went to receive the possession of the flat, he found possession of other persons. The complainant claimed that in connivance with and conspiracy with

the present petitioner. The petitioner and Rishi Parasar has committed the crime. On this report offence under Sections 420, 467, 468, 120-B read with

Section 34 of the I.P.C. has been registered against Rishi Parashar and the present applicant Javed Farooqui.

On behalf of the petitioner, it is claimed that the petitioner has given the search report, which is on the basis of documents available to him. It is just

like an opinion and therefore, the petitioner is not at all liable for any offence. It is further claimed that the petitioner has never made any

communication with the complainant. Hence, there is no nexus between the petitioner and the accused Rishi Parashar.

Punjab National Bank sanctioned loan of Rs.12,50,000/- on the mortgage of the sale deed. The petitioner raising the plea that on the basis of search

report, the lawyer petitioner gave his opinion and also advised to physically examine the flat and disburse the loan. Therefore, the petitioner is not

responsible for any commission of offence.

On behalf of the respondent-State, the petition is vehemently opposed and contended that the petitioner Javed Farooqui conspired with Rishi Parashar

has committed the crime. Allegation has been levelled against him by the complainant Bhuwanlal that Rishi Parasar conspired with Javed Farooqui

and hatched conspiracy and committed the crime.

On perusal of the record, it is found that the petitioner Javed Farooqui is an advocate and has submitted a search report on 24.06.2014. The earlier

sale deed was executed on 05.03.2012 in favour of Rajendra Shrivastava and Bhagwat Prasad Khare. Thereafter, on the basis of this search report,

the same flat was again registered in the name of the complainant on 03.07.2014. Annexure P/2 was given as search report-cum-certificate of

marketability of title of Shri Bhuwanlal Malviya.

In the case of Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao (2012) 9 SCC 512, the Apex Court has held that :-

The High Court while quashing the criminal proceedings in respect of the respondent herein has gone into the allegations in the charge sheet and

the materials placed for his scrutiny and arrived at a conclusion that the same does not disclose any criminal offence committed by him. It also

concluded that there is no material to show that the respondent herein joined hands with A-1 to A-3 for giving false opinion. In the absence of direct

material, he cannot be implicated as one of the conspirators of the offence punishable under Section 420 read with Section 109 of IPC. The High

Court has also opined that even after critically examining the entire material, it does not disclose any criminal offence committed by him. Though as

pointed out earlier, a roving enquiry is not needed, however, it is the duty of the Court to find out whether any prima facie material available against

the person who has charged with an offence under Section 420 read with Section 109 of IPC. In the banking sector in particular, rendering of legal

opinion for granting of loans has become an important component of an advocate's work. In the law of negligence, professionals such as lawyers,

doctors, architects and others are included in the category of persons professing some special skills.

23) A lawyer does not tell his client that he shall win the case in all circumstances. Likewise a physician would not assure the patient of full recovery

in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for

the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite

skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his

skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be

held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professed to have possessed, or,

he did not exercise, with reasonable competence in the given case, the skill which he did possess.

The Supreme Court has held that merely because of 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, but cannot be charged for the offence under Sections 420 and 109 of IPC along with other

conspirators without proper and acceptable link between them.

Following judgment rendered in the case of K. Narayana Rao (Supra), the co-ordinate Bench of this Court in the case of Yash Vidyarthi vs. Central

Bureau of Investigation has also observed that:-

At the most the applicant may be said that there was a gross negligence on the basis of which it cannot be said that he was criminally associated with

the co-accused and participated in the criminal conspiracy or with the bank officials. It is not apparent that only on the basis of his report the property

was hypothetical and loand was sanctioned and in this view of the matter, I find that this application deserves to be allowed and accordingly allowed.

In the case of Shantilal H. Lodha vs. State of M.P. decided on 15.02.2016by a Division Bench of this Court has also discharged the accused for the

offence under Sections 420 and 120-B of the I.P.C.

It would be appropriate to hold that no doubt the search report was submitted by the petitioner Javed Faruqkhi, but the nexus between Javed Farooqui

and accused Rishi Parashar has not been prime facie shown. Merely because his opinion is not acceptable or a wrong opinion was given, he may be

liable for gross negligence for provisional misconduct, but it is not established by acceptable prime facie evidence that he should be charged for the

offence punishable under Sections 420, 467, 468, 420-B and 34 of I.P.C. As there is no prime facie case against the applicant, therefore, this petition is

allowed. Crime No.243/2007 is quashed, as far as the applicant Javed Farooqui is concerned.

Before saying omega, it would be appropriate to note that if deemed fit, concerning authority may proceed against the petitioner for gross negligence

or provisional misconduct, if any.