Jharkhand High Court

Kailash Kumar Agarwal @ Kailash Kumar ... vs The Union Of India Through Central ... on 9 May, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

                                              2025:JHHC:14097



 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                Cr.M.P. No.4586 of 2022
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Kailash Kumar Agarwal @ Kailash Kumar Agrawal, aged about 59 yrs, s/o Late Jagdish Prasad, R/o Holding No.18, Golmuri Market, P.O. & P.S.-Golmuri, Town-Jamshedpur, Dist: East Singhbhum, Jharkhand.

                                   ...  ...    Petitioner
                          Versus

The Union of India through Central Bureau of Investigation. ... ... Opp. Party

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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Petitioner : Mr. Mahesh Tewari, Advocate For the Opp. Party-CBI : Mr. Deepak Kumar Bharti, Advocate

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C.A.V. on 02.05.2025 Pronounced on 09/05/2025

1. The instant criminal miscellaneous petition has

been preferred for quashing of entire criminal proceedings

in relation to the petitioner in connection with CBI, EOW,

Ranchi case being F.I.R. No. RC0932014S0005 dated

02.05.2014 registered under Sections 120(B) r/w Sections

406/420/467/468 & 471 of the I.P.C. and subsequently

Sections 13(2) r/w Section 13(1) (c) & (d) of P.C. Act were

added in the charge sheet pending in the court of Learned

Special Judge, C.B.I. Ranchi in R.C.05(S)/2014-EOW-R.

Further, petitioner has also prayed for quashing of

order dated 25.09.2019 passed by learned Special Judge,

C.B.I., Ranchi in R.C. 05 (S)/2014-EOW-R whereby and

whereunder the discharge application filed by the petitioner

has been rejected by the learned court.

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Prayer has also been made for quashing of order

dated 03.01.2020 passed by learned Special Judge, C.B.I.,

Ranchi in R.C.5(S)/2014-EOW-R whereby and whereunder

charges have been framed against the petitioner u/s 120(B)

r/w Sections 420/467 & 471 IPC and section 13(2) r/w

section 13(1) (c) & (d) of Prevention of corruption Act.

Factual Matrix

2. The brief facts of the case as mentioned in the

instant petition, which are required to be enumerated read

hereunder as :-

As per the complaint made by Sri. Vimal Kumar

Sharma, Chief Manager, Punjab National Bank, Circle

Office, Bagroy Market, Main Road, Ranchi is that an act of

criminal conspiracy and cheating was committed by the

accused borrowers Amrendra Kumar Singh and Rakesh

Kapoor, both partners of M/s KSS Infrastructure who had

obtained cash credit limit of Rs. 5 crores and Bank

Guarantee limit of Rs. 5 crores for the purpose of carrying

out business of Civil Contractor against the hypothecation

of primary security i.e. stocks/book debts from the Punjab

National Bank, Sakchi Branch, Jamshedpur by depositing

fake and fabricated documents.

It has been alleged that for obtaining said cash

credit limit and Bank Guarantee, Ravi Gupta @ Ravin

Gupta and Narendra Kumar Srivastava stood as guarantors

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and created equitable mortgage by depositing fake and

fabricated sale deeds and thus cheated the bank to the

tune of Rs. 4.74 crores.

Allegation has been levelled that Amrendra Kumar

Singh, Rakesh Kapoor, Ravi Gupta @ Ravin Gupta and

Narendra Kumar Srivastava in connivance with each other

hatched criminal conspiracy and in pursuance to the same

dishonestly and fraudulently forged the documents and

cheated Punjab National Bank to the tune of Rs. 4.74

crores and caused wrongful gain to themselves and

corresponding wrongful loss to the Bank. Based on the

aforesaid allegation R.C. 05(S)/2014-EOW-R was instituted.

3. The CBI, after conducting investigation, has

submitted charge sheet against the petitioner and others

u/s 120B r/w 420, 467 and 471 IPC & section 13(2) r/w

13(1)(c) & (d) of the P.C. Act. Accordingly, cognizance of the

offence has been taken against the petitioner and others.

4. Consequently, the application for discharge being

Misc. Criminal Application no. 1003/2019 has been filed by

the petitioner by taking the ground that petitioner is not

liable/responsible to verify the originality/genuineness of

the documents before the Registry Office/Circle Office and

it was not the duty of the petitioner to verify the same.

5. Per contra learned counsel appearing for the CBI

had submitted that petitioner was empanelled advocate of

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the bank and in that capacity he submitted his report

about conducting the legal investigation of the title and

made a search of records in the Registration Office thereby

induced the bank to sanction the credit facility to

co- accused borrower.

6. Taking in to consideration the aforesaid submission

of the parties, the learned Special Judge, CBI, Ranchi has

dismissed the said application vide order dated 25/09/19

and directed the petitioner to remain physically present on

the date fixed for charge.

7. Accordingly, vide order dated 05.11.2019 charges

under Sections 120B r/w 420, 467 and 471 IPC & Section

13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act

have been framed against the present petitioner.

8. The present petition has filed under Section 482

Criminal Procedure Code for quashing of the entire criminal

proceeding as well as order dated 25.09.2019 and

05.11.2019 by which discharge application has been

dismissed and charge have been framed respectively

against the present petitioner.

Submission of the learned counsel for the petitioner:

9. Learned counsel for the petitioner has submitted

that no forgery has been committed by the petitioner and

further there is no allegation that the petitioner has made

any financial gain or obtained any illegal gratification.

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10. learned counsel for the petitioner has submitted

that the petitioner himself is a counsel and merely because

he has given an opinion without their being any allegation

of being in league with the other accused persons involved

in criminal conspiracy, the proceedings against the

petitioner deserves to be quashed and set aside.

11. It has also been contended that the opinion of the

petitioner was based upon the documents provided to him

by the bank itself and he had no reasons to assume that

any of these documents might be forged/false.

12. Learned Counsel has also referred to Cr. Rev. No.

406 of 2018 and Cr. M.P. No. 1719 of 2022 in which

present petitioner was the petitioner in the said cases and

the cases against the petitioner had come to a close. It has

also been submitted that against the order passed in Cr.

Rev. No. 406 of 2018; the CBI had moved the Hon.

Supreme Court in Special Leave to Appeal (Crl.) No. 4710 of

2022, which was dismissed on 07.11.2022.

13. In view of the aforesaid, he submits that all the

cases were related to giving a report by the petitioner with

respect to some fake property and their being absence of

criminal conspiracy against the petitioner, the present case

also has to be treated similarly and the entire proceedings

against the petitioner deserves to be quashed.

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14. Learned counsel for the petitioner by referring to the

judgment rendered by the Hon'ble Apex Court in Central

Bureau of Investigation vs. K. Narayan Rao (2012) 9

SCC 512, has submitted that similar matter was before the

Hon'ble Apex Court wherein the criminal case was quashed

after taking note of the contents of the Title Inspection

Report (TIR).

15. Learned counsel for the petitioner, based upon the

aforesaid premise, has submitted that the petitioner is

innocent and having no criminality as has been alleged in

the instant cases, as such, the entire criminal proceeding in

R.C.05(S)/2014-EOW-R pending under Sections 120B read

with Sections 420, 467, 468 and 471 of IPC and Section

13(2) read with 13(1) (c)(d) of Prevention of Corruption Act

including the order dated 25.09.2019 by which application

for discharge has been dismissed and also order framing

charge dated 05.11.2019 under Sections 120B read with

420, 467, 468 and 471 IPC and Section 13(2) read with

13(1)(c)(d) of Prevention of Corruption Act, are fit to be

quashed and set aside.

Submission of the learned counsel for the respondent:

16. While on the other hand, learned counsel for CBI

has submitted that no interference is required by this Court

as the Special Judge has fully applied his mind before

rejecting the discharge application and from perusal of the

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materials collected during investigation, it is apparent that

the petitioner-accused is fully involved in the alleged

commission of crime.

17. The learned counsel for the respondent has further

submitted that without proper verification the opinion was

given and spot verification was not made by the petitioner

and in view of that the C.B.I. found the allegations against

the petitioner true and in view of that criminality is made

out and the learned court has rightly not discharged the

petitioner and framed charge against the petitioner.

18. It has been submitted that the Bank had relied

upon the opinion of the petitioner and thereafter, had

sanctioned a huge cash credit and all the documents were

handed over to the petitioner, but the petitioner did not

verify the genuineness of the said documents, rather gave

his opinion on the basis of the documents, which were

forged and fabricated.

19. He further submits that if the petitioner would have

been diligent and performed his duty with care and

caution, this loss could have been avoided and as such

since the petitioner did not perform his duty in proper

manner nor made any inspection of the original records, it

can be inferred that he was also a part of the conspiracy.

20. Based upon the aforesaid premise the learned

counsel for C.B.I. submits that there is sufficient material

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on record for constituting prima facie case against the

petitioner which may not be quashed.

Analysis

21. This Court has heard the rival submissions

advanced on behalf of the learned counsel for the parties

and perused the entire material available on record

including the charge-sheet.

22. Before adverting into facts of the instant case it will

be profitable to discuss herein the ambit and scope of

inherent jurisdiction of the Court under Section 482

Cr.P.C.

23. The powers under Section 482 Cr.P.C. are the

exception and not the rule. Under this section, the High

Court has inherent powers to make such orders as may be

necessary to give effect to any order under the Code or to

prevent the abuse of process of any court or otherwise to

secure the ends of justice. But the expressions "abuse of

process of law" or "to secure the ends of justice" do not

confer unlimited jurisdiction on the High Court and the

alleged abuse of process of law or the ends of justice could

only be secured in accordance with law, including

procedural law and not otherwise. Reference in this regard

may be taken from the judgment as rendered by the

Hon'ble Apex Court in the case of Dhruvaram Murlidhar

Sonar v. State of Maharashtra, (2019) 18 SCC 191.

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24. It is settled proposition of law that to invoke its

inherent jurisdiction under Section 482 CrPC the High

Court has to be fully satisfied that the material produced by

the accused is such that would lead to the conclusion that

his/their defence is based on sound, reasonable, and

indubitable facts; the material produced is such as would

rule out and displace the assertions contained in the

charges levelled against the accused; and the material

produced is such as would clearly reject and overrule the

veracity of the allegations contained in the accusations

levelled by the prosecution/complainant. Reference in this

regard may be taken by the judgment rendered by the

Hon'ble Apex Court in the case of Rajiv Thapar and

Others v. Madan Lal Kapoor [(2013) 3 SCC 330] which

reads as under:

"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent

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jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice."

[emphasis added]

25. In State of Orissa v. Debendra Nath Padhi [(2005)

1 SCC 568] the powers of the High Court under

Section 482, Cr. P.C. and Article 226 of the Constitution of

India were highlighted and the Hon'ble Apex Court

observed that:

"29. Regarding the argument of the accused having to face the trial despite being in a position to produce material of unimpeachable character of sterling quality, the width of the powers of the High Court under Section 482 of the Code and Article 226 of

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the Constitution is unlimited whereunder in the interests of justice the High Court can make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426]."

[emphasis added]

26. In Rukmini Narvekar v. Vijaya Satardekar

[(2008) 14 SCC 1], the Hon'ble Apex Court has observed

that the width of the powers of the High Court under

Section 482, Cr. P.C. and under Article 226 of

the Constitution of India are unlimited, that the High Court

could make such orders as may be necessary to prevent

abuse of the process of any Court or otherwise to secure

the ends of justice. In a concurring order passed in the very

same case, it was observed in addition that in exercising

jurisdiction under Section 482, Cr. P.C., the High Court is

free to consider even material that may be produced on

behalf of the accused to arrive at a decision whether charge

as framed could be maintained.

27. In Anand Kumar Mohatta v. State (NCT of Delhi),

Department of Home [(2019) 11 SCC 706], referring to

the provisions of Section 482, Cr. P.C., the Hon'ble Apex

Court held as follows:

16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law

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that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri)

513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237]. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.

28. Thus, it is settled position in the exercise of this

wholesome power, the High Court is entitled to quash a

proceeding if it comes to the conclusion that allowing the

proceeding to continue would be an abuse of the process of

the Court or that the ends of justice require that the

proceeding ought to be quashed. The saving of the High

Court's inherent powers, both in civil and criminal matters,

is designed to achieve a salutary public purpose which is

that a court proceeding ought not to be permitted to

degenerate into a weapon of harassment or persecution. In

a criminal case, the veiled object behind a lame

prosecution, the very nature of the material on which the

structure of the prosecution rests and the like would justify

the High Court in quashing the proceeding in the interest of

justice.

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29. As can be gathered from the above, Section 482 Cr.

P.C. recognizes the inherent powers of the High Court to

quash initiation of prosecution against the accused to pass

such orders as may be considered necessary to give effect

to any order under the Cr. P.C. or to prevent abuse of the

process of any court or otherwise to secure the ends of

justice. It is a statutory power vested in the High Court to

quash such criminal proceedings that would dislodge the

charges levelled against the accused and based on the

material produced, lead to a firm opinion that the

assertions contained in the charges levelled by the

prosecution deserve to be overruled.

30. While exercising the powers vested in the High

Court under Section 482, Cr. P.C., whether at the stage of

issuing process or at the stage of committal or even at the

stage of framing of charges, which are all stages that are

prior to commencement of the actual trial, the test to be

applied is that the Court must be fully satisfied that the

material produced by the accused would lead to a

conclusion that their defence is based on sound,

reasonable and indubitable facts. The material relied on by

the accused should also be such that would persuade a

reasonable person to dismiss the accusations levelled

against them as false.

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31. In the backdrop of the aforesaid settled proposition

of law this Court is now adverting to the fact of the case in

order to adjudicate the claim of the petitioner that he has

no role in the alleged commission of crime.

32. It appears from the record that the prosecution case

was registered on the basis of complaint received vide letter

dated 30.04.2014 from Vimal Kumar Sharma, Chief

Manager, Punjab National Bank, Circle Office, Bagroy

Market, Main Road, Ranchi alleging therein criminal

conspiracy and cheating committed by the accused

borrowers Amrendra Kumar Singh and Rakesh Kapoor

(both partners of M/s KSS Infrastructure, Ranchi) who

obtained Cash Credit Limit of Rs 5 crores and Bank

Guarantee limit of Rs. 5 crores from Punjab National Bank,

Sakchi Branch, Jamshedpur, against the hypothecation of

primary security i.e. stocks/book debts by depositing fake

and fabricated documents.

33. For obtaining the said CC Limit and Bank

Guarantee, Ravi Gupta @ Ravin Gupta and Narendra

Kumar Srivastava stood as guarantor and created equitable

mortgage by depositing fake and fabricated sale deeds and

it was further alleged that Amrendra Kumar Singh, Rakesh

Kapoor, Ravi Gupta @ Ravin Gupta & Narendra Kumar

Srivastava in connivance with some other unknown

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persons, cheated Punjab National Bank to the tune of Rs.

4.74 crores (approx.).

34. Complicity of the present partitioner it is alleged

through the charge sheet that the petitioner was

responsible for submitting his report regarding the property

offered as security and mentioned in sale deed no. 4711

dated 07/05/87. It was alleged that the petitioner has

conducted legal investigation of title and made a report that

Mr. Ravi Gupta @ Ravin Gupta has a clear, valid and

marketable title over the property which was being offered

as security and Mr. Ravin Gupta is competent to create

mortgage.

35. It was further alleged that the petitioner without

conducting any verification submitted false report certifying

the title of the land in favour of the guarantor and borrower

and thereby induced the bank to sanction the credit facility

in favour of borrowers leaving no scope for forfeature or

confiscation in case, the loan turns into NPA.

36. From record it appears the petitioner is not named

in the FIR but his name came up during investigation of

this case by CBI. After investigation CBI has submitted

charge sheet against the petitioner and others u/s 120B

r/w 420, 467 and 471 IPC & section 13(2) r/w 13(1)(c) & (d)

accordingly cognizance of offence has been taken.

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37. Consequently, the application for discharge being

Misc. Criminal Application no. 1003/2019 has been filed by

the petitioner but the learned Spl. Judge, CBI, Ranchi had

dismissed the said application vide order dated 25/09/19

and directed to petitioner to present physically on the date

fixed for charge.

38. Accordingly, vide order dated 05.11.2019 charges

under Sections 120B r/w 420, 467 and 471 IPC & section

13(2) r/w 13(1)(c) & (d) of the Prevention of Corruption Act

has been framed against the present petitioner.

39. The present petition has filed under Section 482

Criminal Procedure Code for quashing of the entire criminal

proceeding as well as order dated 25.09.2019 and

05.11.2019 by which discharge application has been

dismissed and charge have been framed respectively

against the present petitioner.

40. It needs to refer herein that the role of each of the

accused in the alleged commission of crime has been

specifically mentioned in the charge sheet. Counsel for the

CBI also relies on the said document, which is annexed

with the petition the brief. For ready reference the same is

being quoted as under:

He gave Special Report on Title vide Ref No. PNB/LO/10/100 dated 23.08.2010 in respect of fake property registered vide sale deed no. 3964, dated 23.07.2009 in name of Mr. Azaz Khan.

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He did not verify the immovable property offered as collateral security at the Circle Office, Chandil. He, in criminal conspiracy with borrowers, gave certificate in Special Report on Title that borrower Mr. Azaz Khan has clear, valid and marketable title over the property and he is competent to create the mortgage. He concealed the fact that the land mentioned under the sale deed no. 3747, dated 07.07.2008 is covered under the C.N.T Act and the registration of aforesaid deed took place by the virtue of permission for sale granted by the Ld. DC Saraikela in T.A. Miscellaneous Case No. 13/2008-09 order dated 09.05.2008 u/s 49 (2) of C. N. T. Act.

41. It is thus evident from the aforementioned

paragraph that the petitioner, is a panel lawyer of the

Bank. He has been implicated in this case on the basis of

legal opinion given by him, which is alleged to be based on

false and fabricated documents. Except that nothing hs

come against the appellant which he was connived with the

other accused persons.

42. In this context, it is pertinent to reiterate that

conspiracy is not an open affair, therefore, the prosecution

has to rely upon evidence pertaining to the acts of various

parties to prove such an agreement of conspiracy on the

basis of circumstantial evidence which can be inferred by

necessary implication.

43. The Hon'ble Supreme Court in plethora of decisions

has observed that for an offence punishable under Section

120B of the IPC, the prosecution need not necessarily prove

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that the propagators expressly agree to do or carried to be

done an illegal act and such agreement may be proved by

necessary implication to be determined from the

circumstantial evidence brought on record.

44. Further, Offence of criminal conspiracy is complete

even though there is no agreement as to the means by

which the purpose is to be accomplished. It is the unlawful

agreement, which is the gravamen of the crime of

conspiracy. The unlawful agreement which amounts to a

conspiracy need not be formal or express, but may be

inherent in and inferred from the circumstances, especially

declarations, acts and conduct of the conspirators.

Reference in this regard may be taken from the judgment

rendered by the Hon'ble Apex Court in the case of State of

T.N. through Superintendent of Police CBI/SIT

Petitioner v. Nalini and others; (1999) 5 SCC 253.

45. In Bhagwan Swarup Lal Bishan Lal v. State of

Maharashtra (AIR 1965 SC 682) a three-Judge Bench of

the Apex Court held that the offence of conspiracy can be

established either by direct evidence or by circumstantial

evidence and the section will come into play only when the

Court is satisfied that there is reasonable ground to believe

that two or more persons have conspired to commit an

offence or an actionable wrong, that is to say, there should

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be prima facie evidence that a person was a party to that

conspiracy.

46. The Hon'ble Apex Court in the case of State of

M.P. v. Sheetla Sahai (2009) 8 SCC 617 has held as

follows:--

"Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the aforementioned provisions of the Prevention of Corruption Act was required to establish the offence by applying the same legal principles which are otherwise applicable for the purpose of bringing a criminal misconduct on the part of an accused."

47. Thus, from the aforesaid settled proposition of law

that offence of conspiracy can be established either by

direct evidence or by circumstantial evidence but the

Section 120-B of the Indian Penal Code will come into play

only when the Court is satisfied that there is reasonable

ground to believe that two or more persons have conspired

to commit an offence or an actionable wrong.

48. Applying the aforesaid underlying principle in the

fact of instant case, it is evident that present petitioner

being an empaneled lawyer and that he has given legal

opinion about the property which is alleged to be based on

false and fabricated documents. Save and except that

nothing has come against the petitioner. Further, the

prosecution is not able to put forth any cogent evidence

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that the present petitioner has connived with the other

accused persons.

49. Thus, it is evident that present petitioner had given

only his legal opinion based upon the document as

provided by the Bank to him which he was bound to give

being an empaneled lawyer. Further nothing has come on

the record that in lieu of giving his opinion he had taken

any illegal gratification which is necessarily required for

implication of Section 13 of the prevention of corruption

Act.

50. It needs to refer herein that the Hon'ble Supreme

Court in the case of Central Bureau of Investigation v. K.

Narayana Rao, reported in (2012) 9 SCC 512, has held

that the criminal liability against an advocate, who gives an

opinion, arises only when the lawyer was an active

participant in a plan to defraud the Bank and Criminal

offence has to be committed by the lawyer himself. For

ready reference the Para-30 & 31 of the aforesaid judgment

of Hon'ble Apex Court, is being quoted as under:

"30. 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.

31. 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

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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 and cannot be charge 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".

51. Further it needs to refer herein that the Hon'ble

Apex Court in the aforesaid judgment, has discussed at

length that what are the ingredients of the offence of

criminal conspiracy and what type of act would attract

criminal conspiracy. For ready reference the relevant

paragraph is being quoted herein below: -

"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have

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committed, it must be clear that they were so omitted in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inference from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence".

52. Thus, it is evident from the ratio of the aforesaid

judgment that the liability against an opining advocate

arises only when the lawyer was an active participant in a

plan to defraud the Bank.

53. Taking in to consideration the ratio of the aforesaid

judgment and the role of the petitioner which has been

referred hereinabove this Court is of the considered view

that find that the prosecution has put forth any evidence in

regarding the role of the petitioner in aiding the conspiracy

to defraud the Bank.

54. At this juncture it may be stated that the present

petitioner has not performed his duties diligently and was