Orissa High Court
Basanta Ku. Behera vs State Of Odisha on 19 June, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 2764 of 2016
Basanta Ku. Behera .... Petitioner
Mr. Debi Prasad Dhal,
Sr. Advocate
-versus-
State of Odisha .... Respondent
Mr. S. J. Mohanty,
Addl. Standing Counsel
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Judgment: 19.06.2025
Chittaranjan Dash, J.
1. By means of this application, the Petitioner, Basanta Kumar
Behera, a practicing advocate, has approached this Court under
Section 482 CrPC seeking to quash the order dated 16.05.2016
passed by the learned SDJM, Keonjhar, taking cognizance against
him for offences under Sections 120-B/468/471/34 IPC in
connection with G.R. Case No. 1338 of 2014, arising out of
Keonjhar Town P.S. Case No. 273 of 2014.
2. The background facts of the case are that, in a written
complaint dated 04.08.2014 submitted by Pratap Chandra Nayak,
the then Senior Branch Manager of Syndicate Bank, Keonjhar
Branch (hereinafter referred to as the „Bank‟), alleged that during
the period of 2011-2012, the Bank had sanctioned 11 tractor loans
to various individuals and a cash credit loan of ₹10 lakhs to one
CRLMC No. 2764 of 2016 Page 1 of 12
Duryodhan Das, the proprietor of M/s Rahul Enterprises. These
loans were sanctioned based on mortgage of immovable properties,
purportedly supported by title deeds, RORs, rent receipts, and other
revenue documents. Subsequent internal audit conducted during
May-June, 2013, revealed that these documents were forged. A
second legal opinion obtained from Advocate Ajay Kumar Nath
confirmed the forgery. It was discovered that the documents bore
fake seals and signatures of public authorities, and were created
with the intent to defraud the Bank. Undeniably, one Duryodhan
Das, had introduced the borrowers to the Bank and received the
loan disbursements. He later absconded, closing his business. The
Petitioner herein, had rendered legal opinions certifying the
genuineness of these forged documents. As a result, he was arrayed
as an accused along with Duryodhan Das, the borrowers, and the
then Branch Manager, Ramesh Chandra Giri. The Investigating
Officer, after examining several witnesses including Bank staff and
obtaining relevant documents, filed Charge Sheet No. 01 dated
31.03.2016, implicating the Petitioner under Sections 120-B, 468,
471, and 34 IPC. It is alleged that the Petitioner, in connivance with
the Branch Manager and others, knowingly validated forged
documents, leading to a loss of around ₹69,29,000 to the Bank.
3. Mr. D. P. Dhal, learned Sr. Counsel appearing on behalf of
the Petitioner, submits that the role of the Petitioner was limited to
providing a legal opinion based solely on documents supplied by
the Bank officials, and he had no reason or obligation to verify their
authenticity from the original sources such as the Sub-Registrar or
Tehsil offices. Mr. Dhal further asserts that the Petitioner had no
knowledge of the forgery and had not entered into any conspiracy
CRLMC No. 2764 of 2016 Page 2 of 12
with the co-accused. He acted in good faith and without any mens
rea. Mr. Dhal further contends that the charge of conspiracy against
him is unfounded and unsupported by any direct evidence and
placed his reliance on the decision of the Hon‟ble Supreme Court in
CBI Hyderabad vs. K. Narayan Rao reported in (2013) 1 OLR
(SC) 74, where it was held that mere submission of a wrong legal
opinion, in the absence of any material showing connivance with
other accused, cannot attract criminal liability; a similar position
has also been reaffirmed by this Court in Tankadhara Mishra v.
Republic of India reported in (2022) 87 OCR 397. Mr. Dhal asserts
that legal professionals cannot be criminally prosecuted merely
because a document later turns out to be forged, unless there is
specific material indicating intentional participation in the
fraudulent act. He reiterates that the Petitioner‟s professional duty
was confined to the documents handed over to him, and there is no
material on record to show that he had knowledge of their forged
nature or that he was part of any fraudulent arrangement. Mr. Dhal
finally concludes by praying for the criminal proceedings against
the Petitioner be quashed in the interest of justice.
4. Mr. S. J. Mohanty, learned Additional Standing Counsel for
the State, while opposing the Petitioner‟s prayer for quashing of the
cognizance order, contends that there are sufficient materials on
record to proceed against the Petitioner for offences under Sections
120-B, 468, 471, and 34 of the IPC. He submits that during the
period of 2011-12, the Keonjhar Branch of Syndicate Bank
sanctioned tractor and cash credit loans to various individuals based
on forged revenue documents such as RORs and rent receipts which
were certified as genuine by the present Petitioner in his capacity as
CRLMC No. 2764 of 2016 Page 3 of 12
legal advisor. The matter only came to light during an internal audit
during May-June 2013 and when a second legal opinion was sought
from Advocate Ajaya Kumar Nath revealed the use of forged
documents. He further submits that during the investigation, the
I.O. recorded statements under Section 161 CrPC of key witnesses,
including Bank officials and advocates, who consistently stated that
the Petitioner was selected as legal advisor by the then Branch
Manager without authorisation from the Regional Office, and had
vetted forged documents submitted by the accused borrowers. Mr.
Mohanty asserts that the witnesses have categorically alleged that
the Petitioner, along with the Branch Manager, the borrowers, and
one Duryodhan Das, conspired to cheat the Bank and caused
wrongful loss of ₹69,29,000/-. Mr. Mohanty argued that at the stage
of cognizance, the Magistrate is not required to conduct a detailed
analysis of the merits or the sufficiency of evidence. It is enough if
the material on record discloses a prima facie case. He further his
argument by stating that it is not expected to weigh the evidence but
only to see whether there exists sufficient ground to proceed, and
placed his reliance on various Supreme Court decisions in the
matters of M. Srikanth vs. State of Telangana (2019) reported in
10 SCC 373 and State of Gujarat vs. Afroz Mohammed
Hasanfatta reported in (2019) 20 SCC 539. Mr. Mohanty asserts
that a Magistrate can take cognizance based on the police report and
accompanying documents without giving detailed reasons. He also
contends that Section 482 CrPC is not to be invoked as a matter of
routine to stifle legitimate prosecution and in view of the consistent
witness testimonies, the nature of the allegations, and the materials
collected during investigation, the Petitioner‟s role is not merely
CRLMC No. 2764 of 2016 Page 4 of 12
professional but forms part of a wider conspiracy. Mr. Mohanty
concludes his argument by stating that the learned SDJM, Keonjhar
rightly took cognizance and the present CRMLC is devoid of merit
and liable to be dismissed.
5. Before delving into the core legal question of whether a
legal professional can be held criminally liable for the opinions
rendered in discharge of professional duty, it is necessary to
acknowledge the peculiar nature of the allegations in the present
case. The Petitioner, an advocate by profession, is sought to be
implicated not on the basis of any overt fraudulent act, but for
having certified, in his professional capacity, the genuineness of
certain documents which were later discovered to be forged. In such
a backdrop, it becomes imperative to examine whether the material
on record justifies the criminal proceeding against the Petitioner.
This issue has engaged the attention of both the Hon‟ble Supreme
Court and various High Courts in several decisions, which provide
a guiding framework for determining the scope and limits of
liability in such circumstances.
6. The Hon‟ble Apex Court in its decision in the matter of
Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao
reported in 2012 (9) SCC 512, has held that –
“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 thatCRLMC No. 2764 of 2016 Page 5 of 12
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.
24) In Jacob Mathew vs. State of Punjab &
Anr. (2005) 6 SCC 1 this court laid down the
standard to be applied for judging. To determine
whether the person charged has been negligent or not,
he has to be judged like an ordinary competent person
exercising ordinary skill in that profession. It is not
necessary for every professional to possess the
highest level of expertise in that branch which he
practices.
25) In Pandurang Dattatraya Khandekar vs. Bar
Council of Maharashtra & Ors. (1984) 2 SCC 556,
this Court held that “…there is a world of difference
between the giving of improper legal advice and the
giving of wrong legal advice. Mere negligence
unaccompanied by any moral delinquency on the part
of a legal practitioner in the exercise of his profession
does not amount to professional misconduct.
26) Therefore, the liability against an opining
advocate arises only when the lawyer was an active
participant in a plan to defraud the Bank. In the given
case, there is no evidence to prove that A-6 was
abetting or aiding the original conspirators.
27) However, it is beyond doubt that a lawyer owes
an “unremitting loyalty” to the interests of the client
and it is the lawyer‟s responsibility to act in a manner
that would best advance the interest of the client.
Merely because his 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
CRLMC No. 2764 of 2016 Page 6 of 12
misconduct if it is established by acceptable evidence
and cannot be charged for the offence under Sections
420 and 109 of IPC along with other conspirators
without proper and acceptable link between them. It is
further made clear 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 are lacking in the
case of the respondent herein.”
7. This Court too in the matter of Nrusingha Nath Mishra vs.
Republic of India reported in 2010 (I) OLR 934, has held that –
“3. To examine the question as to whether a case
under sections 420/120-B IPC has been made out or
not, it would be apt to examine as to whether by
accepting the prosecution case in its entirety, the
ingredients of sections 420/120-B IPC exit or
not. Section 420 IPC relates to an offence of cheating
and dishonestly inducing the person deceived to
deliver any property to any person, or to make, alter
or destroy the whole or part of a valuable security, or
anything which is signed or sealed, and which is
capable of being converted into a valuable security,
shall be punished with imprisonment of either
description for a term which may extend to seven
years and shall also be liable to fine.
4, In the instant case, there is absolutely no allegation
made by the prosecution with regard to the Petitioner
or the co-accused cheating the New India Assurance
Company Ltd. and dishonestly inducing the said
company to deliver any property. As a matter of fact,
the prosecution has admitted that on lodging of the
claim by the Petitioner, the claim was settled and the
prosecution never alleges that before settling the
claim, due procedure was not followed. With regard
to the offence under section 120-B IPC, there is
absolutely no material or allegation made by the
prosecution, prima facie, satisfying the ingredients of
the said offence which relates to punishment of
criminal conspiracy as defined in section 120-A IPC.
CRLMC No. 2764 of 2016 Page 7 of 12
No materials whatsoever have been brought out
during the investigation to show any agreement or
conspiracy between the two co-accused persons to
commit any offence. At this juncture, it would be
profitable to note that the other co-accused is an
advocate, who was engaged by the New India
Assurance Company Ltd. to investigate the case and
while performing such professional work, he sent a
report that he could not trace out any records
regarding hospitalization of the Petitioner at S.C.B.
Medical College, Hospital. There is no material
whatsoever to show prima facie that the co-accused in
order to cause an illegal gain to either himself or the
Petitioner or to cause illegal loss to the company gave
such a report. 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. The prosecution has also not come out with
any material disclosing meeting of mind between the
two accused persons to bring home the charge
under section 120-B IPC. Rather, the allegation in the
F.I.R. was made that the co-accused conspired with
one Beni Madhan Dwivedi, who was functioning as a
Divisional Manager and the said Beni Madhab
Dwivedi is not an accused in the charge sheet filed.
5. The impugned order passed by the learned C.J.M.
taking cognizance of the offence under sections
420/120-B IPC ex-facie shows non-application of
judicial mind by the learned C.J.M. It is a settled
position of law that when a charge sheet is filed after
investigation against the accused persons alleging
commission of offence, the court taking cognizance is
to apply his judicial mind to find out as to whether
there is any material showing that such offence has
been committed.
6. The Court, while exercising jurisdiction
under section 482 Cr.P.C. to quash a criminal
proceeding, no doubt, should exercise such power
sparingly and with circumspection. If, however, it is
found that on accepting the materials produced by the
prosecution, which were collected duringCRLMC No. 2764 of 2016 Page 8 of 12
investigation along with the F.I.R. in its entirety, do
not disclose commission of any offence, the court is
to quash the criminal proceeding in order to prevent
abuse of the process of the court and to secure the
ends of justice. (See State of West Bengal and others
v. Swapan Kumar Guha and others, AIR 1982 SC
949, State of Haryana and others v. Ch. Bhajan Lal
and others, AIR 1992 SC 604, Sanu Das and another
v. State of Orissa and another, 1999 (I) OLR 442, G.
Sagar Suri and another v. State of U.P. and others,
(2000)18 OCR (SC) 355, Ajaya Mitra v. State of M.P.
and others, (2003) 25 OCR (SC) 226, Uma Shankar
Mishra v. State of Orissa, (2003) 25 OCR 611 and
Hira Lal Hari Lal Bhagwati v. CBI. New Delhi,
(2003) 25 OCR (SC) 770).”
8. Similar view has been taken by this Court in the decision in
the matters of Nimai Charan Mohanty vs. Republic of India
reported in (2015) 1 OLR 292 as well as Kulamani Parida vs.
State of Odisha reported in 2023 (I) ILR – CUT – 611, wherein it
is held as follows –
“16. In such view of the matter, the allegation
appearing in the F.I.R. and the complaint of the Bank
vis-à-vis the Petitioner does not make out a case
constituting the offences under Sections
420/467/468/471/120-B IPC as neither the Petitioner
is part of the business transaction allegedly to have
conducted by the co-accused persons having interest
therein nor that the document in question allegedly to
have been forged and fabricated is attributed to the
present Petitioner in absence of a material showing
his personal interest in any gain/loss of the parties
conducting business except that he retains his
professional interest. This Court while dealing with
the matter is alive of the fact that the offences alleged
are the category of offence involving the moral
aptitude and detrimental to the society in general but
have strong conviction that the act of the Petitioner in
discharging his professional duty is above all theCRLMC No. 2764 of 2016 Page 9 of 12
allegations alleged save and except discharging part
of his professional duty. Consequently, this Court
finds no material to proceed against the Petitioner
attributing the criminal liability so as to continue the
proceeding. The learned court below having not
specifically recorded any reasoning vis-à-vis the
present Petitioner erroneously travelled in taking
cognizance against the Petitioner and is as such liable
for being interfered with exercising the jurisdiction
under Section 482 Cr.P.C.”
9. In the instant case, there is a conspicuous absence of any
prima facie material to suggest that the Petitioner entered into a
conspiracy with the co-accused persons to commit forgery or use
forged documents within the meaning of Sections 120-B, 468, or
471 of the IPC. As an advocate, the Petitioner was engaged solely
to render legal opinions on documents submitted to him by the
Bank. There is no allegation that he played any role in preparing or
fabricating those documents, nor is there any evidence suggesting
that he had knowledge of their forged nature. The settled legal
position, as laid down by the Hon‟ble Supreme Court in CBI vs. K.
Narayana Rao (Supra), is that criminal liability cannot be fastened
on a legal professional for merely rendering an incorrect opinion,
unless there is material showing that the advocate actively
participated in a fraud. This principle has been consistently affirmed
by this Court as well, notably in the abovementioned decisions,
where it is held that an advocate‟s incorrect report, in the absence of
any evidence of intention to cheat or conspire, does not constitute
an offence under Sections 420 or 120-B IPC. In the present matter,
the charge of conspiracy under Section 120-B IPC is not
substantiated by any direct or circumstantial evidence showing a
meeting of minds or any form of collusion. Likewise, to attract
CRLMC No. 2764 of 2016 Page 10 of 12
Section 468 IPC, which requires forgery for the purpose of
cheating, and Section 471 IPC, which deals with use of forged
documents as genuine, there must be material demonstrating that
the accused either forged the document or knowingly used it despite
knowing it to be forged. The Petitioner‟s role, by contrast, is limited
to certifying the documents for their legal sufficiency not their
factual authenticity and he has consistently maintained that his
opinion was based on materials provided by the Bank without any
instruction or expectation to conduct independent field verification.
In the absence of any allegation of personal gain, active abetment,
or conscious facilitation of fraud, continuing criminal proceedings
against the Petitioner would amount to an abuse of process. The
application of Sections 120-B, 468, and 471 IPC to the facts of this
case is therefore legally unsustainable.
10. In view of the foregoing discussion, and upon a careful
perusal of the record as well as the applicable legal principles laid
down by the Hon‟ble Supreme Court and this Court, this Court is of
the considered view that the prosecution has failed to bring on
record any material that would indicate the Petitioner‟s involvement
in the alleged criminal conspiracy or forgery. An erroneous or
imperfect professional opinion, rendered in good faith and within
the scope of engagement, cannot by itself give rise to criminal
liability. The law draws a clear distinction between professional
misjudgment and criminal intent. In absence of cogent evidence of
collusion or fraudulent scheme, no penal consequences can follow
merely because the opinion later turns out to be incorrect. The role
attributed to the Petitioner is confined to the rendering of legal
opinions in his professional capacity as an advocate. There is
CRLMC No. 2764 of 2016 Page 11 of 12
neither any specific overt act alleged against him nor any cogent
material suggesting that he acted in concert with the principal
accused persons to commit the offence. The materials on record fall
far short of establishing the essential ingredients of Sections 120-B,
468, or 471 of the Indian Penal Code.
11. Accordingly, the CRLMC is allowed.
12. The impugned order dated 16.05.2016 passed by the learned
SDJM, Keonjhar in G.R. Case No. 1338 of 2014, arising out of
Keonjhar Town P.S. Case No. 273 of 2014, taking cognizance
against the Petitioner under Sections 120-B/468/471/34 IPC, as well
as all consequential criminal proceedings so far as the present
Petitioner is concerned, stand quashed.
(Chittaranjan Dash)
Judge
K.C.Bisoi/A.R-cum-Sr. Secretary
Signature Not Verified
Digitally Signed
Signed by: KRUSHNA CHANDRA BISOI
Reason: Authentication
Location: orissa high court
Date: 20-Jun-2025 16:15:46
CRLMC No. 2764 of 2016 Page 12 of 12