# Sri Ashok Kumar Singh v. C.B.I., Scb Lucknow

- **Citation:** (2023) 10 ILRA 437
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-04
- **Case number:** Application U/S 482 No. 2592 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-ashok-kumar-singh-v-c-b-i-scb-lucknow-49346
- **Pages:** 10

## Headnote

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 120B, 420 & 406 - Criminal
Conspiracy
-
essence
of
criminal
conspiracy is an agreement to do an illegal
act - Even if some acts are proved to have
been committed, it must be clear that they
were so committed in pursuance of an
agreement made between the accused
persons who were parties to the alleged
conspiracy - Inferences from such proved
circumstances regarding the guilt may be
drawn only when such circumstances are
incapable
of
any
other
reasonable
438 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation - 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.(Para -31)

Quashing of - cognizance order, summoning
order, entire proceedings of Criminal Case &
NBW issued against applicant - property in
question - acquired by co-accused / guarantors
- sale deed in year 1982 - loan taken by coaccused / borrowers in year 2015 - applicant
submitted report on basis of documents
provided to him - Two other valuers approved
by bank also submitted valuation reports - not
arrayed as accused persons - no specific
allegation that applicant had given professional
opinion in pursuance of an agreement made
with any other specified accused.(Para - 32)

HELD:- Applicant, a practicing Advocate aged
71, faces allegations of criminal conspiracy and
deliberate wrong opinion in furthering the
conspiracy. Allegation is bald and omnibus,
making it unsuitable for trial. Trial would result
in an abuse of the legal process, as it would not
serve the ends of justice. Impugned cognizance,
summoning order and the entire proceedings
quashed.(Para -35,36)

Application u/s 482 Cr.P.C. allowed. (E-7)

LIST OF CASES CITED:-

## Text

10 All. Sri Ashok Kumar Singh Vs. C.B.I., Scb Lucknow
437
purposes thereof, the mischief which it
intended to suppress and the other
provisions of the statute, and construe the
language of Section- 2(d) in the light of the
indications furnished by them."

12. Every verdict of the Supreme
Court is binding on all the other courts,
tribunals and the authorities exercising
judicial powers. The pronouncement of the
Supreme Court have the authority of law.
When the law pronounced by the Supreme
Court needs any interpretation, the object
behind the same has to be understood.
When there is any doubt, regarding actual
meanings to be attached to the words used
in a verdict, the Judges are allowed to enter
into question of policy. The Court may go
behind the phrases/words used to find out
the real intention or the object. The Court
has to see that behind giving such a
direction what sort of mischief was
intended to be curbed. This, in legal
parlance is called "the mischief rule of
interpretation". The Judge is expected to
make such a construction as suppresses the
mischief and adds force and life to the
'cure'.

13. In my opinion, though in para- 36
of the judgment words "pending trial" has
been used, but the intention of the Apex
Court was to effectuate such direction, in
all the civil as well as criminal cases
irrespective
of
the
"stage"
of
the
proceeding. The court intended its ruling to
apply wherever stay is granted, whether at
the stage of investigation or at the stage of
inquiry or at the stage of committal or the
stages after the trial has commenced in a
criminal case. The word "trial" has not been
used to signify that the judgment of the
Supreme Court shall only apply, where the
stage of framing of charge has already
reached at. In case such an interpretation is
allowed, the very purpose of the judgment
shall fail. On the basis of above discussion,
I am of a firm opinion that this petition
does not have any force and is liable to be
dismissed.

14. Accordingly, the petition is
dismissed.

15. Copy of the order be immediately
certified to the court concerned.
----------
(2023) 10 ILRA 437
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.10.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Application U/S 482 No. 2592 of 2023

Sri Ashok Kumar Singh ...Applicant
Versus
C.B.I., Scb Lucknow ...Opposite Party

Counsel for the Applicant:
Rishad Murtaza, Aishwarya Mishra, Syed Ali
Jafar Rizvi

Counsel for the Opposite Party:
Anurag Kumar Singh

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 -
Sections 120B, 420 & 406 - Criminal
Conspiracy
-
essence
of
criminal
conspiracy is an agreement to do an illegal
act - Even if some acts are proved to have
been committed, it must be clear that they
were so committed in pursuance of an
agreement made between the accused
persons who were parties to the alleged
conspiracy - Inferences from such proved
circumstances regarding the guilt may be
drawn only when such circumstances are
incapable
of
any
other
reasonable
438 INDIAN LAW REPORTS ALLAHABAD SERIES
explanation - 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.(Para -31)

Quashing of - cognizance order, summoning
order, entire proceedings of Criminal Case &
NBW issued against applicant - property in
question - acquired by co-accused / guarantors
- sale deed in year 1982 - loan taken by coaccused / borrowers in year 2015 - applicant
submitted report on basis of documents
provided to him - Two other valuers approved
by bank also submitted valuation reports - not
arrayed as accused persons - no specific
allegation that applicant had given professional
opinion in pursuance of an agreement made
with any other specified accused.(Para - 32)

HELD:- Applicant, a practicing Advocate aged
71, faces allegations of criminal conspiracy and
deliberate wrong opinion in furthering the
conspiracy. Allegation is bald and omnibus,
making it unsuitable for trial. Trial would result
in an abuse of the legal process, as it would not
serve the ends of justice. Impugned cognizance,
summoning order and the entire proceedings
quashed.(Para -35,36)

Application u/s 482 Cr.P.C. allowed. (E-7)

LIST OF CASES CITED:-

1. C.B.I Vs K. Narayan Rao, 2012 (9) SCC 512,

2. Surendra Nath Pandey Vs St. of Bihar, (2020) 18
SCC 730

3. Alpic Finance Ltd. Vs P Sadasivan, (2001) 3 SCC
513

4. K. Ramakrishna Vs St. of Bihar, (2000) 8 SCC 547,

5. Soma Chakravarty Vs State, (2007) 5 SCC 403,

6. Akbar Hussain Vs St. of J&K, (2018) 16 SCC 85,

7. St. of U.P. & anr. Vs Akhil Sharda & ors., 2022 SCC
OnLine SC 820

8. Kaptan Singh Vs St. of U.P., (2021) 9 SCC 35.
9. St. of Har. Vs Bhajan Lal, 1992 Supp (1) SCC 335

10. Google India (P) Ltd. Vs Visaka Industries, (2020)
4 SCC 162

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Rishad Murtaza, the learned
counsel for the applicant, Sri Anurag
Kumar Singh, the learned counsel for
the CBI and perused the record.

2. By means of the instant
application filed under Section 482
Cr.P.C., the applicant has prayed for
quashing of the cognizance order and
the summoning order dated 27.01.2023
and the entire proceedings of Criminal
Case No. 126506 of 2022 arising out of
FIR
No.
RC2(E)/2022/CBI/SCB/Lucknow, under
Sections 120B, 420, 406 I.P.C., P.S.
CBI/SCB/Lucknow,
pending
in
the
Court of the learned Special Judicial
Magistrate, CBI (Pollution), Lucknow
and to quash the order dated 28.02.2023
whereby non-bailable warrants have
been issued against the applicant.

3. On 16.03.2022, a Deputy
General Manager of Small Industries
Development Bank of India (SIDBI)
sent a complaint to the CBI against 10
named persons and some unknown
persons,
stating
that
M/s
JML
Marketing
Pvt.
Ltd.,
through
its
promoter Kimti Lal Arora, had obtained
a loan from the Bank by offering
collateral security of a property of coaccused persons Rajinder Chawla and
Varinder Chawla situate at Ambala
Cantt. Being situated in cantonment
area, the property could not have been
mortgaged,
as
the
guarantors
had
merely occupancy rights in respect of
10 All. Sri Ashok Kumar Singh Vs. C.B.I., Scb Lucknow
439
the property and they did not own the
property.

4. On 14.12.2022 the CBI submitted
a charge-sheet against 8 persons, including
the applicant, inter alia stating that prior to
creation of mortgage, a title investigation
report in respect of the property was
obtained from the applicant, who was the
bank's approved valuer. The applicant had
submitted a title report dated 17.01.2015
stating that the property fell under the
Municipal Corporation of Ambala and the
names of the owners were shown in the
records of the Municipal Corporation. The
applicant had certified that the title of the
property was valid, clear and marketable.

5. The charge-sheet further states that
the bank had obtained another report from
another approved valuer Ramesh Grover of
M/s Grover Architects, who had submitted
a
valuation
report
dated
12.01.2015
assessing market value of the property as
Rs. 11.20 Crores. The bank's guidelines
mandate that in case the value of the
property exceeds Rs.3 Crores, another
valuation
should
be
obtained
and
another yet approved valuer Jitendra
Sharma, a partner of M/s Sharma and
Associates, had given a report dated
20.01.2015 opining the valuation of the
property to be Rs. 11.82 Crores.

6. On 08.10.2019 the account was
declared as NPA, and thereafter the
bank obtained another report from its
valuer Dr. Samir K. Monga, who opined
on 28.11.2019 that the value of the
property was nil as only occupancy
rights are transferred in cantonment
area and ownership of the property is
not transferred. However, yet another
valuer Sri H. P. Mittal has assessed the
market value of the property as Rs. 5.29
Crores on 10.09.2020. The charge-sheet
mentions
that
subsequently
the
mortgagors
had
transferred
the
mortgaged building in favour of their
wives, but that allegation does not
relate to the applicant.

7. The charge-sheet alleges that
the applicant had given a clean chit in
respect of the borrower's right over the
land in question pursuant to a criminal
conspiracy.

8. The learned counsel for the
applicant
Sri
Rishad
Murtaza
has
submitted that the property in question
had been acquired by the co-accused /
guarantors through a sale deed in the
year 1982. The loan in question was
taken by the co-accused / borrowers in
the year 2015. The applicant had
submitted his report on the basis of the
documents
provided
to
him,
after
exercise of due diligence. When the
bank's other approved valuers also
differed in assessing the value of the
property, it cannot be assumed that at
the time of making the mortgage the
applicant had given a wrong report
regarding the value of the property with
a criminal intent.

9. Sri. Rishad Murtaza has next
submitted that there is no allegation that
the applicant had any intention to cheat
the Bank or that he was benefitted by
commission
of
the
offence
and,
therefore, the offence of cheating is not
made out against the applicant. The
applicant was not entrusted with any
dominion over any property, nor has he
misappropriated or converted the same
to his own use and, therefore, the offence of
criminal misappropriation is also not made
out. He has also submitted that there is
nothing on record which may make out the
440 INDIAN LAW REPORTS ALLAHABAD SERIES
commission of the offence of criminal
conspiracy.

10. In support of his submissions, Sri
Murtaza has placed reliance on the
judgments in the cases of Central Bureau
of Investigation v. K. Narayan Rao, 2012
(9) SCC 512, Surendra Nath Pandey
versus State of Bihar, (2020) 18 SCC 730
and
Alpic
Finance
Ltd.
versus
P
Sadasivan, (2001) 3 SCC 513.

11. Per contra, Sri. Anurag Kumar
Singh, the learned Counsel for the
respondent - C.B.I. has submitted that vide
letter dated 20.07.2017, the Estate Officer
& Executive Officer, Municipal Council,
Ambala has clarified in the matter of
Nandini Gupta that registration of only
superstructure / malba (debris) can be
done as the ownership of the property
lies with the Government of Haryana.
Vide letter dated 14.10.2020, the S.D.M.
has clarified in the matter of Ankit Arora
that registration of superstructure /
malba (debris) can be done as the
ownership of the property lies with the
Government of India.

12. Sri. Singh has relied upon the
judgments
in
the
cases
of
K.
Ramakrishna v. State of Bihar, (2000)
8 SCC 547, Soma Chakravarty v.
State, (2007) 5 SCC 403, Akbar
Hussain v. State of J&K, (2018) 16
SCC 85, State of Uttar Pradesh and
Another Versus Akhil Sharda and
Others, 2022 SCC OnLine SC 820 and
Kaptan Singh v. State of U.P., (2021) 9
SCC 35.

13. In CBI v. K. Narayana Rao,
(2012) 9 SCC 512, the respondent
Advocate was charged for giving false
legal opinion in respect of 10 housing
loans. The High Court had quashed the
charge sheet exercising the power under
Section 482 Cr.P.C. In appeal, the
Hon'ble Supreme Court held that: -

"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
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 charged for the offence
under Sections 420 and 109 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."
(Emphasis supplied)

14. In Surendra Nath Pandey v.
State of Bihar, (2020) 18 SCC 730,
following the judgment in the case of K.
Narayana Rao (Supra), the Hon'ble
Supreme Court held that: -
10 All. Sri Ashok Kumar Singh Vs. C.B.I., Scb Lucknow
441

"4. Taking into account the
contents of FIR, we are left with the
impression that the said allegations are
bald and omnibus and do not make any
specific reference to the role of the
appellants in any alleged conspiracy. In
CBI v. K. Narayana Rao to which one of us
(Ranjan Gogoi, J.) was a party, it has been
held by this Court that a criminal
prosecution on the basis of such bald and
omnibus statement/allegations against the
panel advocates of the Bank ought not to be
allowed to proceed as the same constitute
an abuse of the process of the court and
such prosecution may in all likelihood be
abortive and futile."

15. In Alpic Finance Ltd. v. P.
Sadasivan, (2001) 3 SCC 513, the Hon'ble
Supreme Court held that "To deceive is to
induce a man to believe that a thing is true
which is false and which the person practising
the deceit knows or believes to be false. It must
also be shown that there existed a fraudulent
and dishonest intention at the time of
commission of the offence."

16. In the present case, the charge-sheet
alleges the applicant's involvement in a
criminal conspiracy for commission of the
offences of cheating and criminal breach of
trust and there is no allegation of commission of
the offences of cheating and criminal breach of
trust by the applicant himself. Therefore, Alpic
Finance Ltd. (Supra) has no relevance for
decision of the present application.

17. All the judgments cited by the learned
Counsel for the respondent - C.B.I. are on the
point of scope of interference under Section 482
Cr.P.C., which reads as follows: -

"482. Saving of inherent powers of
High Court.- Nothing in this Code shall be
deemed to limit or affect the inherent powers of
the High Court to make such orders as may be
necessary to give effect to any order under this
Code, or to prevent abuse of the process of any
Court or otherwise to secure the ends of
justice."

18. In State of Haryana v. Bhajan Lal,
1992 Supp (1) SCC 335, the Hon'ble Supreme
Court discussed several precedents on the scope
of Section 482 Cr.P.C. and extracted the
following principles: -

"102. In the backdrop of the
interpretation of the various relevant provisions
of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code
which we have extracted and reproduced
above, we give the following categories of cases
by way of illustration wherein such power could
be exercised either to prevent abuse of the
process of any court or otherwise to secure the
ends of justice, though it may not be possible to
lay down any precise, clearly defined and
sufficiently
channelised
and
inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein
such power should be exercised.

(1) Where the allegations made in
the
first
information
report
or
the
complaint, even if they are taken at their
face value and accepted in their entirety do
not prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.
442 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable on the basis of which
no prudent person can ever reach a just
conclusion that there is sufficient ground
for proceeding against the accused.

(6) Where there is an express
legal bar engrafted in any of the provisions
of the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.

103. We also give a note of
caution to the effect that the power of
quashing a criminal proceeding should be
exercised
very
sparingly
and
with
circumspection and that too in the rarest of
rare cases; that the court will not be
justified in embarking upon an enquiry as
to the reliability or genuineness or
otherwise of the allegations made in the
FIR or the complaint and that the
extraordinary or inherent powers do not
confer an arbitrary jurisdiction on the
court to act according to its whim or
caprice."

19. In K. Ramakrishna v. State of
Bihar, (2000) 8 SCC 547, it was held that:
-

"4. The trial court under Section
239 and the High Court under Section 482
of the Code of Criminal Procedure is not
called upon to embark upon an inquiry as
to whether evidence in question is reliable
or not or evidence relied upon is sufficient
to proceed further or not. However, if upon
the admitted facts and the documents relied
upon by the complainant or the prosecution
and without weighing or sifting of evidence,
no case is made out, the criminal
proceedings instituted against the accused
are required to be dropped or quashed..."

20. In Soma Chakravarty v. State,
(2007) 5 SCC 403, the Hon'ble Supreme
Court held that: -

"if on the basis of material on
record the court could form an opinion that
the accused might have committed offence
it can frame the charge, though for
conviction the conclusion is required to be
proved beyond reasonable doubt that the
accused has committed the offence. At the
time of framing of the charges the probative
value of the material on record cannot be
gone into, and the material brought on
record by the prosecution has to be
accepted as true at that stage. Before
framing a charge the court must apply its
judicial mind on the material placed on
record and must be satisfied that the
commitment of offence by the accused was
possible. Whether, in fact, the accused
10 All. Sri Ashok Kumar Singh Vs. C.B.I., Scb Lucknow
443
committed the offence, can only be decided
in the trial."

21. In Akbar Hussain versus State
of J&K, (2018) 16 SCC 85, the Hon'ble
Supreme Court held that: -

"5. ... At the time of framing the
charge, the trial court has to consider the
material before it by the investigating
officer and form a prima facie opinion
thereupon as to whether it is a fit case for
framing of charge under a particular
provision. The standard of proof test, which
is to be applied at the final stage, in order
to find out as to whether the accused is
guilty or not on the basis of actual evidence
produced is not to be applied at the stage of
framing of the charge. Charge can be
framed even when there is a strong
suspicion founded upon materials before
the Court, which leads the court to form a
presumptive opinion as to existence of the
factual ingredient constituting the offence
alleged."

22. In State of Uttar Pradesh and
Another
VersusAkhil
Sharda
and
Others, 2022 SCC OnLine SC 820, the
Hon'ble Supreme Court held that "no mini
trial can be conducted by the High Court in
exercise of powers under Section 482
Cr.P.C. jurisdiction and at the stage of
deciding the application under Section 482
Cr.P.C., the High Court cannot get into
appreciation of evidence of the particular
case being considered."

23. In Kaptan Singh v. State of U.P.,
(2021) 9 SCC 35, it was held that :

"exercise
of
powers
under
Section
482
Cr.P.C.
to
quash
the
proceedings is an exception and not a rule.
It is further observed that inherent
jurisdiction under Section 482 Cr.P.C.
though wide is to be exercised sparingly,
carefully and with caution, only when such
exercise is justified by tests specifically laid
down in the section itself. It is further
observed that appreciation of evidence is
not permissible at the stage of quashing of
proceedings in exercise of powers under
Section 482 CrPC."

24. In Google India (P) Ltd. v.
Visaka Industries, (2020) 4 SCC 162, the
Hon'ble Supreme Court explained the
expression 'rarest of rare cases' occurring
in Bhajan Lal (Supra) thus: -

"43. As to what is the scope of
the expression "rarest of rare cases"
indicated in para 103, we may only refer to
the judgment of this Court in Jeffrey J.
Diermeier v. State of W.B. (2010) 6 SCC
243, wherein the law laid down by a Bench
of three Judges in Som Mittal (2) v. State of
Karnataka (2008) 3 SCC 574 has been
referred to :

"23.
The
purport
of
the
expression "rarest of rare cases", to which
reference was made by Shri Venugopal, has
been explained recently in Som Mittal (2) v.
State of Karnataka. Speaking for a Bench
of three Judges, the Hon'ble the Chief
Justice said :

'9. When the words "rarest of
rare cases" are used after the words
"sparingly and with circumspection" while
describing the scope of Section 482, those
words merely emphasise and reiterate what
is intended to be conveyed by the words
"sparingly and with circumspection". They
mean that the power under Section 482 to
quash proceedings should not be used
mechanically or routinely, but with care
and caution, only when a clear case for
quashing is made out and failure to
interfere would lead to a miscarriage of
444 INDIAN LAW REPORTS ALLAHABAD SERIES
justice. The expression "rarest of rare
cases" is not used in the sense in which it
is used with reference to punishment for
offences under Section 302 IPC, but to
emphasise that the power under Section
482 CrPC to quash the FIR or criminal
proceedings should be used sparingly and
with circumspection."
(Emphasis in original)

25. When the facts of the case are
scrutinized in light of the law laid down by
the Hon'ble Supreme Court in the above
mentioned cases, it appears that the only
allegation against the applicant is that he
had
submitted
a
title
report
dated
17.01.2015 stating that the title of the
property mortgaged was valid, clear and
marketable. The charge-sheet further states that
prior to it, the bank had obtained a report dated
12.01.2015 from Ramesh Grover, who had
assessed the market value of the property as Rs.
11.20 Crores and one Jitendra Sharma had
given a report dated 20.01.2015 opining the
valuation of the property to be Rs. 11.82 Crores.

26. It is relevant to note that Ramesh
Grover and Jitendra Sharma, who had given
reports to the Bank regarding value of the
property to be Rs.11.20 Crores and Rs.11.82
Crores respectively, have not been made
accused in the present case.

27. Even after the account was declared
as NPA, the Bank's valuer Sri H. P. Mittal has
assessed the market value of the property as Rs.
5.29 Crores as on 10.09.2020 and he too has not
been made an accused.

28. The charge-sheet alleges that the
applicant had given a clean chit to the
borrower's right over the land in question
pursuant to a criminal conspiracy. The borrower
was M/s JML Marketing Pvt. Ltd., through its
directors Kimti Lal Arora and Anil Arora. The
property in question belonged to the mortgagors
Rajinder Kumar Chawla and Varinder Kumar
Chawla and not to the borrowers, and the
charge-sheet wrongly mentions that the
applicant had given a clean chit to the
borrower's right over the land in question. It
indicates that the applicant has been implicated
in the charge-sheet in a mechanical manner,
without due application of mind to facts of the
case.

29. Although the charge-sheet alleges that
the applicant had given a clean chit to the
borrower's right over the land in question
pursuant to a criminal conspiracy, no further
particulars have been stated regarding the
alleged criminal conspiracy and the persons
with whom the applicant was involved in the
conspiracy.

30. Section 120-A defines criminal
conspiracy which reads thus: -

"120-A. Definition of criminal
conspiracy.-When two or more persons agree
to do, or cause to be done-

(1) an illegal act, or

(2) an act which is not illegal by
illegal means, such an agreement is designated
a criminal conspiracy:

Provided that no agreement except
an agreement to commit an offence shall
amount to a criminal conspiracy unless some
act besides the agreement is done by one or
more parties to such agreement in
pursuance thereof.

Explanation.-It is immaterial
whether the illegal act is the ultimate object
of such agreement, or is merely incidental
to that object."

31. In CBI v. K. Narayana Rao
(Supra), while dealing with a case
involving
similar
facts,
the
Hon'ble
10 All. Sri Ashok Kumar Singh Vs. C.B.I., Scb Lucknow
445
Supreme Court explained the ingredients of
Criminal Conspiracy thus: -

"Section 120-B speaks about
punishment of criminal conspiracy. While
considering the definition of criminal
conspiracy, it is relevant to refer Sections
34 and 35 IPC which are as under:

"34. Acts
done
by
several
persons
in
furtherance
of
common
intention.-When a criminal act is done by
several persons in furtherance of the
common intention of all, each of such
persons is liable for that act in the same
manner as if it were done by him alone.

35. When such an act is criminal
by reason of its being done with a criminal
knowledge or intention.-Whenever an
act, which is criminal only by reason of its
being done with a criminal knowledge or
intention, is done by several persons, each
of such persons who joins in the act with
such knowledge or intention is liable for
the act in the same manner as if the act
were done by him alone with that
knowledge or intention."

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 been committed, it must be
clear that they were so committed in
pursuance of an agreement made between
the accused persons who were parties to
the alleged conspiracy. Inferences 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.
(Emphasis supplied)

32. The property in question had been
acquired by the co-accused / guarantors
through a sale deed in the year 1982. The
loan in question was taken by the coaccused / borrowers in the year 2015. The
applicant had submitted his report on the
basis of the documents provided to him.
Two other valuers approved by the bank
had also submitted valuation reports and
those two valuers have not been arrayed as
accused persons. There is no specific
allegation that the applicant had given the
professional opinion in pursuance of an
agreement made with any other specified
accused.

33. The only material relied upon by
the respondent - CBI in the counter
affidavit are the letter dated 20.07.2017
issued by the Estate Officer & Executive
Officer, Municipal Council, Ambala in the
matter of one Nandini Gupta stating that
registration of only superstructure / malba
(debris) can be done as the ownership of
the property lies with the Government of
Haryana,
and
another
letter
dated
14.10.2020 issued by the S.D.M. in the
matter of one Ankit Arora stating that
registration of superstructure / malba
(debris) can be done as the ownership of
446 INDIAN LAW REPORTS ALLAHABAD SERIES
the property lies with the Government of
India. Both the aforesaid letters were issued
in the matters of two specific persons
unconnected with the present matter and
letters those were not in existence when the
applicant
had
given
his
report
on
17.01.2015. The applicant had no occasion
to take into consideration the opinion of the
aforesaid two authorities.

34. Even in the letters dated
20.07.2017 issued by the Estate Officer &
Executive Officer, Municipal Council,
Ambala and the letter dated 14.10.2020
issued by the S.D.M., there is a gross
conflict of opinion as the former claims that
the property in cantonment vests in the
Government of Haryana whereas the latter
claims
that
the
same
vests
in
the
Government of India.

35. In the aforesaid circumstances, the
allegation of the applicant having entered into
a criminal conspiracy with unspecified
persons and having deliberately given a
wrong opinion in furtherance of the criminal
conspiracy, appears to be bald and omnibus
in character and it does not make out a case
for trial of the applicant, who is a practicing
Advocate
aged
about
71
years,
for
commission of the offence of criminal
conspiracy. The proceeding for his trial
would result in an abuse of the process of law
and it would not serve the ends of justice.

36. Accordingly, the application under
Section 482 Cr.P.C. filed by the applicant is
allowed. The impugned cognizance and
summoning order dated 27.01.2023 passed
by learned Special Judicial Magistrate, CBI
(Pollution), Lucknow in Criminal Case No.
126506 of 2022, arising out of FIR No.
RC2(E)/2022/CBI/SCB/Lucknow, and the
entire proceedings of the aforesaid case, so
far as the same relate to the applicant, are
hereby quashed.
---------
(2023) 10 ILRA 446
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.10.2023

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 8055 of 2023

Rohit Agarwal ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Pranjal Krishna

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 482 - Inherent
power - Indian Penal Code, 1860 - Sections
409, 420, 467, 468, 471 & 408 - The Oaths
Act, 1969 - Section 7 - Proceedings and
evidence not invalidated by omission of oath
or irregularity - ,The Allahabad High Court
Rules' 1952 -Chapter IV Rule 17, 18 - oath
or
affirmation
by
the
deponent
and
correction
in
the
affidavit
-
'no
interlineation, alteration or erasures shall be
made in an affidavit after it has been sworn'
- two categories of defects in an affidavit:
'curable defect' and 'incurable defect' -
Curable defects do not cause prejudice or
substantially change the object for which
the affidavit is given - defects in the
affidavit can be removed, if it is curable -
Rules blatantly cannot be ignored but at
the same time, this cannot be allowed to
be a tool to circumvent the justice as the
Rules are framed to aid the speedy
dispensation of justice. (Para -10,12,13)

Application
filed
challenging
criminal
proceedings - preliminary objection - Rules 1952
does not permit any correction in the affidavit,