A lawyer who gives a legal opinion cannot be charged in a criminal case in the absence of evidence that she actively perpetrated the fraud, the Bombay High Court has ruled.
Two years after city-based advocate Mohana Nair (60) was charged by the CBI with forgery and fraud over an opinion she gave in a housing loan case, a division bench of Justice S C Dharmadhikari and Justice Gautam Patel quashed the case against her, calling it "entirely frivolous, thoroughly vexatious and undeniably oppressive".
The court also slammed the investigating agency for targeting the advocate.
"Unless we find that there is at least a prima facie case against an advocate who gave an opinion-a 'best judgment assessment', as it were, based on her knowledge of the law, her appreciation of the facts and her reading of the documents-that she played an active role in the fraud alleged, we cannot but conclude that there is no case to be made out against that advocate," said the judges, adding that the CBI case was "riddled with more holes than a colander".
The court warned the CBI that it was not imposing costs on it, but would not be so accommodating the next time it resorted to similar action.
"For three long years, the petitioner has had her till-then unsullied professional reputation besmirched, and for no good reason," said the judges. "For no fault of her own, she has lost a client. But she has also had to suffer the slings and arrows of a truly outrageous fortune at the hands of the CBI."
In 2003, Nair, who was on the legal panel of Indian Bank, was asked to give her opinion on the title of five Navi Mumbai rowhouses for the purpose of housing loans. On the basis of copies of documents given by the bank, including a builder's letter, she said mortgages could be created if the original sale agreement and other documents were submitted to the bank. The CBI launched a suo motu investigation in 2008, after it came to light that the buyers had defrauded the bank and other banks over the property.
Initially the CBI filed an FIR against the bank officers citing that they had not followed the legal opinion given by Nair. The bank refused permission to the CBI to prosecute its officers following which the CBI filed a charge sheet against Nair accusing of her fraud and forgery.
The court noted that Nair had followed the procedure followed by other lawyers who were not required to visit the site or check land records unless specially requested and only had gone through the documents forwarded to them. The lawyers of the other banks, which were defrauded, were not booked.
What seems to have completely escaped the CBI is that Nair's opinion clearly recommended the delivery of original documents to the bank as a precondition for the disbursement of any loan. If the bank's officer chose to advance loans on photocopies, Nair cannot be pilloried for this,'' the court said. Nothing else explains her being singled out for such special treatment when other lawyers who did exactly the same work following precisely the same protocols were excluded, their explanations being found to be adequate.''
Article referred: http://articles.timesofindia.indiatimes.com/2013-09-26/mumbai/42425151_1_cbi-legal-opinion-bank-officers
Two years after city-based advocate Mohana Nair (60) was charged by the CBI with forgery and fraud over an opinion she gave in a housing loan case, a division bench of Justice S C Dharmadhikari and Justice Gautam Patel quashed the case against her, calling it "entirely frivolous, thoroughly vexatious and undeniably oppressive".
The court also slammed the investigating agency for targeting the advocate.
"Unless we find that there is at least a prima facie case against an advocate who gave an opinion-a 'best judgment assessment', as it were, based on her knowledge of the law, her appreciation of the facts and her reading of the documents-that she played an active role in the fraud alleged, we cannot but conclude that there is no case to be made out against that advocate," said the judges, adding that the CBI case was "riddled with more holes than a colander".
The court warned the CBI that it was not imposing costs on it, but would not be so accommodating the next time it resorted to similar action.
"For three long years, the petitioner has had her till-then unsullied professional reputation besmirched, and for no good reason," said the judges. "For no fault of her own, she has lost a client. But she has also had to suffer the slings and arrows of a truly outrageous fortune at the hands of the CBI."
In 2003, Nair, who was on the legal panel of Indian Bank, was asked to give her opinion on the title of five Navi Mumbai rowhouses for the purpose of housing loans. On the basis of copies of documents given by the bank, including a builder's letter, she said mortgages could be created if the original sale agreement and other documents were submitted to the bank. The CBI launched a suo motu investigation in 2008, after it came to light that the buyers had defrauded the bank and other banks over the property.
Initially the CBI filed an FIR against the bank officers citing that they had not followed the legal opinion given by Nair. The bank refused permission to the CBI to prosecute its officers following which the CBI filed a charge sheet against Nair accusing of her fraud and forgery.
The court noted that Nair had followed the procedure followed by other lawyers who were not required to visit the site or check land records unless specially requested and only had gone through the documents forwarded to them. The lawyers of the other banks, which were defrauded, were not booked.
What seems to have completely escaped the CBI is that Nair's opinion clearly recommended the delivery of original documents to the bank as a precondition for the disbursement of any loan. If the bank's officer chose to advance loans on photocopies, Nair cannot be pilloried for this,'' the court said. Nothing else explains her being singled out for such special treatment when other lawyers who did exactly the same work following precisely the same protocols were excluded, their explanations being found to be adequate.''
Article referred: http://articles.timesofindia.indiatimes.com/2013-09-26/mumbai/42425151_1_cbi-legal-opinion-bank-officers
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