Whether An advocate can be prosecuted for impersonation of surety?

Looking at the offence alleged, it is found that cognizance has been taken under Sections 419, 468, 471/34, IPC. Section 419, IPC states about punishment for cheating by impersonation. Even if the allegation made in the charge-sheet is accepted to the effect that some person impersonated the surety, and signed the bail bond and the affidavit, which were identified by the petitioner No. 1 representing the accused as counsel, it cannot be said for a moment that he himself impersonated any one of the sureties. It transpires from the record that the case was looked after by the Advocate's Clerk, who after disclosure of the fact that bail bond executor has impersonated himself, immediately brought the said fact to the notice of the petitioner No. 1, who in turn filed a memo and affidavit bringing the said fact to the notice of the Court and as such, the Court has accepted the said affidavit and memo and allowed the accused Sanatan Patra to go on bail by executing fresh bail bond. Therefore, it cannot be said that the petitioners, who are the counsel for the accused persons, intentionally and knowing it fully well that the security was impersonated and identified him as genuine person in the bail bond. In coming to the aforesaid conclusion, this Court has referred to the decision of the apex Court in Hiralal Jain v. Delhi Administration,MANU/SC/0134/1972 : AIR 1972 SC 2598, 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 statement of the claimants, as true, filed his vakalatnama agreeing to act on their behalf and there was no evidence to show prior knowledge on the part of the 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 and it was, therefore, held that there was no prima facie evidence to commit the advocate for offence under Sections 120B read with 419, 420, 511 and 467 read with 471, IPC.

6. Considering the aforesaid position of law as laid down by this Court as well as the apex Court, in the case at hand since there is no allegation that the petitioners have prior knowledge of impersonation and knowing it fully well that Manmath Nayak was not the real person, identified him in bail bond and the affidavit. Therefore, even if the allegations made in the FIR are fully correct, yet, there is no prima facie material against the petitioners to connect them with the offence under Sections 419, IPC.

IN THE HIGH COURT OF ORISSA

CRLMC No. 914 of 2003

Decided On: 20.09.2013

Appellants: Asit Kumar Behera and Another
Vs.
Respondent: State of Orissa

Hon'ble Judges/Coram:B.R. Sarangi, J.

Citation: 116(2013)CLT1120, 2013(II)OLR827,2014(2) crimes433 orissa

1. The petitioners, who are practicing Advocates of Udala Bar, have filed this application invoking the jurisdiction of this Court under Section 482, Cr.P.C. to quash the order dated 14.2.2003 passed by the learned S.D.J.M., Udala in G.R. Case No. 211 of 2000 (T.C. No. 572/2002) rejecting their application for reconsideration of the order of cognizance dated 12.11.2002. The factual matrix of the case in hand is that one Sanatan Patra, is an accused in a criminal case for the offence punishable under Sections 302, 306, 498A/34, IPC. He filed an application for bail, which was rejected by the learned S.D.J.M., Udala. Thereafter, he moved the learned Addl. Sessions Judge, Mayurbhanj and by order dated 7.9.2000 he was released on bail of Rs. 20,000/- with one surety. He submitted bail bond in the Court of learned S.D.J.M., Udala on 9.8.2000. One Manmath Nayak, son of Jagannath Nayak stood as surety for Sanatan Patra impersonating one Arjun Majhi, son of Late Ananta Majhi Petitioner No. 1, Asit Kumar Behera, on Advocate of Udala Bar, who was engaged as his advocate, furnished bail bond. On 7.9.2000 when he came to know from his Clerk that one Manmath Nayak impersonated himself as Arjun Majhi and stood as surety for the accused, he immediately filed an affidavit before the learned Magistrate on 8.9.2000 stating that on good faith, he identified the signature of Arjun Majhi in the connected documents as per his self-introduction. On coming to know about such impersonation, he immediately instructed the accused to surrender before the Court and file fresh bail bond. He also filed a memo to that effect on the same date for furnishing fresh bail bond for the accused Sanatan Patra.

2. After surrender of Sanatan Patra, he was released on bail on furnishing fresh bond, but the learned Magistrate lodged information before the OIC, Udala Police Station on the allegation of impersonation of the bailor, Manmath Nayak, disclosing himself as Arjun Majhi, which was attested by his Advocate, petitioner No. 1. On receipt of the aforesaid information, the same was registered as Udala P.S. Case No. 64 of 2000 corresponding to G.R. Case No. 211 of 2000. The Investigating Officer in course of investigation examined number of persons in connection with the case and ultimately submitted charge-sheet against the petitioners and four others for the offence punishable under Sections 419, 468, 471/34, IPC and on that basis, learned Magistrate took cognizance of the offences and issued process vide order dated 12.11.2002. On receipt of the notice from the Court, the petitioners filed an application to reconsider the order of cognizance on the ground that accepting the entire case of the prosecution without adding or subtracting anything, it would be seen that no case is made out against them in any of the offences alleged. But the learned Magistrate rejected the said application on 14.2.2003, which is impugned in this application.

3. On perusal of the materials available on record, it transpires that so far as petitioner No. 2 is concerned, there is no allegation against him and so far as petitioner No. 1 is concerned, he was the conducting lawyer for accused Sanatan Patra and as such, when the learned Addl. Sessions Judge, Mayurbhanj released him on bail of Rs. 20,000/- with one surety vide order dated 7.9.2000, Sri Patra submitted bail bond in the Court of learned S.D.J.M., Udala on 9.8.2000. But the fact remains, one Manmath Nayak stood as surety for the accused Sanatan Patra in the name of Late Arjun Majhi, son of Late Ananta Majhi. When bail bond was filed, petitioner No. 1 had no occasion to know whether the surety was impersonated and when the matter was brought to his notice, immediately to show his bona fide, he filed an affidavit bringing the said fact to the notice of the learned Magistrate and also filed a memo furnishing fresh bail bond for the accused Sanatan Patra. On consideration of the same, learned Magistrate released the accused Sanatan Patra on fresh bail bond.

4. In order to substantiate the case of the petitioners, Mr. D.P. Dhal, learned counsel for the petitioners relying upon the decision of this Court in Manoranjan Khatua v. State of Orissa, MANU/OR/0117/1989 : (1989) 2 OCR 236 : 1989 (I) OLR 419 has stated that since the petitioner No. 1 has no intention to impersonate any person in course of execution of bail bond, the allegation so made does not make out a case against him for the offence alleged and therefore, the proceeding so initiated has to be quashed. He further submitted that so far as petitioner No. 2 is concerned, since there is no allegation against him in the FIR and no case is made out against him, the proceeding initiated against him may be quashed.

5. Looking at the offence alleged, it is found that cognizance has been taken under Sections 419, 468, 471/34, IPC. Section 419, IPC states about punishment for cheating by impersonation. Even if the allegation made in the charge-sheet is accepted to the effect that some person impersonated the surety, and signed the bail bond and the affidavit, which were identified by the petitioner No. 1 representing the accused as counsel, it cannot be said for a moment that he himself impersonated any one of the sureties. It transpires from the record that the case was looked after by the Advocate's Clerk, who after disclosure of the fact that bail bond executor has impersonated himself, immediately brought the said fact to the notice of the petitioner No. 1, who in turn filed a memo and affidavit bringing the said fact to the notice of the Court and as such, the Court has accepted the said affidavit and memo and allowed the accused Sanatan Patra to go on bail by executing fresh bail bond. Therefore, it cannot be said that the petitioners, who are the counsel for the accused persons, intentionally and knowing it fully well that the security was impersonated and identified him as genuine person in the bail bond. In coming to the aforesaid conclusion, this Court has referred to the decision of the apex Court in Hiralal Jain v. Delhi Administration,MANU/SC/0134/1972 : AIR 1972 SC 2598, 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 statement of the claimants, as true, filed his vakalatnama agreeing to act on their behalf and there was no evidence to show prior knowledge on the part of the 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 and it was, therefore, held that there was no prima facie evidence to commit the advocate for offence under Sections 120B read with 419, 420, 511 and 467 read with 471, IPC.

6. Considering the aforesaid position of law as laid down by this Court as well as the apex Court, in the case at hand since there is no allegation that the petitioners have prior knowledge of impersonation and knowing it fully well that Manmath Nayak was not the real person, identified him in bail bond and the affidavit. Therefore, even if the allegations made in the FIR are fully correct, yet, there is no prima facie material against the petitioners to connect them with the offence under Sections 419, IPC.

7. The learned Magistrate without considering the facts in proper perspective, has wrongly taken cognizance against the petitioners in G.R. Case No. 211 of 2000 (T.C. No. 572 of 2002). In this backdrop of the fact and law, I am satisfied that no case is made out against the petitioners and as such, the initiation of the proceeding against them is bad in law. Therefore, the order of cognizance so far as the petitioners are concerned, is not sustainable and the same is hereby quashed. Since the G.R. Case is of the year 2000, learned S.D. J.M., Udala is directed to proceed with the case against the remaining accused persons and dispose of the same as expeditiously as possible. With the aforesaid observation and direction, the CRLMC is disposed of. The LCR be sent back to the Court concerned immediately.