CENTRAL BUREAU OF INVESTIGATION, HYDERABADversusK. NARAYANA RAO

                         [2012] 9 S.C.R. 54


A    CENTRAL BUREAU OF INVESTIGATION, HYDERABAD
                                  v.
                        K. NARAYANA RAO
                (Criminal Appeal No. 1460 of 2012)

                      SEPTEMBER 21, 2012
B
          [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

        Code of Criminal Procedure, 1973:

c         s. 482 - Quashing of criminal prosecution - Scope -
   A/legation that respondent, an advocate on the panel of a
   Bank, submitted false legal opinion to the Bank in respect of
   housing loans, and along with other conspirators defrauded
   the Bank's money - High Court quashed charge sheet against
D the respondent - Propriety of - Held: Liability against the
   respondent would have arisen had he been an active
  participant in a plan to defraud the Bank - In the instant case,
   no evidence to prove that respondent was abetting or aiding
   the original conspirators - Merely because his legal opinion
   may not be acceptable, he cannot be mulcted with criminal
E prosecution, particularly, in absence of tangible evidence that
   he associated with other conspirators -At the most, respondent
   may be liable for gross negligence or professional misconduct
   if it is established by acceptable evidence - He cannot be
   charged u/ss.420 and 109 /PC along with other conspirators
F without proper and acceptable link between them - No prima
  facie case against him - High Court right in quashing criminal
  proceedings against the respondent - Penal Code, 1860 -
  s.120B rlw ss. 419, 420, 467, 468, 471 and 109 - Prevention
  of Corruption Act, 1988 - s.13(2) rlw s.13(1)(d).
G
          ss.227 and 228 - Framing of charges - Discharge of
   accused - When warranted - Held: While exercising
  jurisdiction u/s. 227, the Magistrate should not make a roving
   enquiry into the pros and cons of the matter and weigh the
H                                54
 CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v. 55
               K. NARAYANA RAO

evidence as if he was conducting a trial - If the Magistrate A
finds that there is no prima facie evidence or the evidence
placed is totally unworthy of credit, it is his duty to discharge
the accused at once.

     Penal Code, 1860 - ss. 120A and 1208 - Criminal               8
conspiracy - Essence of - Held: 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 -
However, it is a matter of common experience that direct
evidf?nce to prove conspiracy is rarely available - Accordingly,   C
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 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           D
proved circumstances regarding the guilt may be drawn only
when such circumstances are incapable of any other
reasonable 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 clnd       E
acceptable evidence.

     Negligence - Professionals - When may be held liable
for negligence - Held: A professional may be held liable for
negligence on one of the two findings, viz., either he was not     F
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.

      Advocates - Duty of - Held: A lawyer owes an "unremitting
 loyalty" to the interests of the client - It is the lawyer's G
.responsibility to act in a manner that would best advance the
 interest of the client.

    The CBI registered an FIR against A-1 and A-2, the
then Branch Manager and the Assistant Manager,                     H
    56       SUPREME COURT REPORTS            [2012] 9 S.C.R.

A respectively of the Vijaya Bank, for the commission of
  offence punishable under Sections 120-B, 419, 420, 467,
  468 471 read with Section 109 of IPC and Section 13(2)
  read with Section 13(1)(d) of the Prevention of Corruption
  Act, 1988 for abusing their official position as public
B servants and for having conspired with private
  individuals, viz., A-3 and A-4 and other unknown persons
  for defrauding the bank by sanctioning and disbursement
  of housing loans to 22 borrowers in violation of the
  Bank's rules and guidelines and thereby causing
c wrongful loss of Rs. 1.27 crores to the Bank and
  corresponding gain for themselves. In the charge sheet
  filed by CBI, the respondent, who is a legal practitioner
  and a panel advocate for the Vijaya Bank, was also
  arrayed as A-6. The allegation against him was that he
  gave false legal opinion in respect of 10 housing loans.
0
       Respondent (A-6) filed petition under Section 482
  CrPC before the High Court for quashing of the criminal
  proceedings pending against him on the file of the
  Special CBI Judge. The High Court quashed the
E proceedings against respondent (A-6). Aggrieved, the
  CBI filed the instant appeal.

         Dismissing the appeal, the Court

       HELD: 1. At the initial stage, if there is a strong
F suspicion which leads the Court to think that there is
  ground for presuming that the accused has committed
  an offence, in that event, it is not open to the Court to say
  that there is no sufficient ground for proceeding against
  the accused. A judicial magistrate enquiring into a case
G under Section 209 CrPC is not to act as a mere post
  office and has to arrive at a conclusion whether the case
  before him is fit for commitment of the accused to the
  Court of Session. He is entitled to sift and weigh the
  materials on record, but only for seeing whether there is
H
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.          57
              K. NARAYANA RAO

sufficient evidence for commitment, and not whether A
there is sufficient evidence for conviction. On the other
hand, if the Magistrate finds that there is no prima facie
evidence or the evidence placed is totally unworthy of
credit, it is his duty to discharge the accused at once. It
is also settled law that while exercising jurisdiction under B
Section 227 CrPC, the Magistrate should not make a
roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial. This
provision was introduced in the Code of Criminal
Procedure to avoid wastage of public time and to save c
the accused from unavoidable harassment and
expenditure. [Para 12) (69-A-F; 71-G]

     State of Bihar vs. Ramesh Singh (1977) 4 SCC 39; 1978
(1) SCR 257; P. Vijayan vs. State of Kera/a and Another
(2010) 2 SCC 398: 2010 (2) SCR 78 and Sajjan Kumar vs. D
Central Bureau of Investigation, (2010) 9 SCC 368: 2010 (11)
SCR 669 - relied on.

     2. Section 120A IPC defines criminal conspiracy
while Section 1208 IPC speaks about punishment of E
criminal conspiracy. 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 F
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 it
is a matter of common experience that direct evidence to G
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
committed, it must be clear that they were so committed H
    58       SUPREME COURT REPORTS            [2012] 9 S.C.R.


A   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
s   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. [Paras 19
    and 20] [81-C-G; 82-C-F]
c       Shivnarayan Laxminarayan Joshi and Others vs. State
    of Maharashtra (1980) 2 SCC 465 - referred to.

       3.1. In the instant case, the legal opinion rendered Ly
  the respondent in the form of Legal Scrutiny Reports
D show that the respondent, as a panel advocate, verified
  the documents supplied by the Bank and rendered his
  opinion. It also shows that he was furnished with Xerox
  copies of the documents and very few original
  documents as well as Xerox copies of Death Certificate,
E Legal heir-ship Certificate, Encumbrance Certificate for
  his perusal and opinion. It is the definite claim of the
  respondent that he perused those documents and only
  after that he rendered his opinion. [Para 17] [80-F-G]

      3.2. It is an admitted case of the prosecution that the
F name of respondent was not mentioned in the FIR. Only
  in the charge-sheet, the respondent was shown as
  accused no. 6 stating that he submitted false legal
  opinion to the Bank in respect of the housing loans in the
  capacity of a panel advocate and did not point out actual
G ownership of the properties in question. The statements
  of several witnesses enclosed along with the charge-
  sheet speak volumes about others. However, there is no
  specific reference to the role of the respondent along with
  the main conspirators. [Paras 18, 21] [81-A-B; 82-H]
H
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.           59
              K. NARAYANA RAO

     3.3. In the banking sector in particular, rendering of   A
legal opinion for granting of loans has become an
important component of an advocate's work. In the law
of negligence, professionals such as lawyers, doctors,
architects and others are included in the category of
persons professing some special skills. A lawyer does not     B
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   c
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 that branch of profession which he is practising and
while undertaking the performance of the task entrusted       0
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    E
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. 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     F
was abetting or aiding the original conspirators. [Paras
22, 23 and 26) [83-D-G; 84-A-E]

     3.4. A lawyer owes an "unremitting loyalty" to the
interests of the client and it is the lawyer's responsibility G
to act in a manner that would best advance the interest
of the client. However, 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 H
    60       SUPREME COURT REPORTS              [2012] 9 S.C.R.


A 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 of IPC along with other
  conspirators without proper and acceptable link between
B them. 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. There
C is no prima facie case for proceeding in respect of the
  charges alleged insofar as respondent is concerned. The
  High Court was right in quashing the criminal
  proceedings against Respondent (A-6). [Paras 27, 28] [84-
  F-H; 85-A-B]
D       Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC
    1: 2005 (2) Suppl. SCR 307 and Pandurang Dattatraya
    Khandekar vs. Bar Council of Maharashtra & Ors. (1984) 2
    sec 556: 1984 (1) SCR 414 - relied on.
E        Rupan Deol Bajaj (Mrs.) and Another vs. Kanwar Pal
    Singh Gill and Another (1995) 6 SCC 194: 1995 (4) Suppl.
    SCR 237; Mahavir Prashad Gupta and Another vs. State of
    National Capital Territory of Delhi and Others (2000) 8 SCC
    115 and State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC
F   335: 1990 (3) Suppl. SCR 259 - referred to.
                        Case Law Reference:
         1978 (1) SCR 257          relied on          Para 9
         2010 (2) SCR 78           relied on          Para 9
G
         2010 (11) SCR 669         relied on          Para 9
         1995 ,(4) Suppl. SCR 237 referred to         Para 13
         1990 (3) Suppl. SCR 259 referred to          Para 13
H
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v. 61
              K. NARAYANA RAO

     (2000) 8 sec 115             referred to        Para 14       A

     (1980) 2 sec 465             referred to        Para 15

     2005 (2) Suppl. SCR 307 relied on               Para 24

     1984 (1) SCR 414             relied on          Para 25
                                                                   B
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1460 of 2012.

     From the Judgment & Order dated 09.07.2010 of the High
Court of Andhra Pradesh at Hyderabad in Crl. Petition No. 2347     c
of 2008.

     H.P. Raval, ASG, Rajiv Nanda, Padmalakshmi Nigam,
Arvind Kumar Sharma for the Appellant.

    R. Venkataramani, Ashok Panigrahi, Aljo Joseph, Surajit D
Bhaduri for the Respondent.

     The Judgment of the Court was delivered by

     P. SATHASIVAM, J. 1. Leave granted.
                                                                   E
      2. This appeal is directed against the final judgment and
order dated 09.07.2010 passed by the High Court of
Judicature, Andhra Pradesh at Hyderabad in Criminal Petition
No. 2347 of 2008 whereby the High Court allowed the petition
filed by the respondent herein under Section 482 of the Code       F
of Criminal Procedure, 1973 (in short "the Code") and quashed
the criminal proceedings pending against him in CC No. 44 of
2007 (Crime No. 36 of 2005) on the file of the Special Judge
for CBI cases, Hyderabad.
                                                                   G
    3. Brief facts:

     (a) According to the prosecution, basing on an information,
on 30.11.2005, the CBI, Hyderabad registered an FIR being
RC 32(A)/2005 against Shri P. Radha Gopal Reddy (A-1) and
Shri Udaya Sankar (A-2), the then Branch Manager and the           H
    62        SUPREME COURT REPORTS                 (2012] 9 S.C.R.


A   Assistant Manager, respectively of the Vijaya Bank,
    Narayanaguda Branch, Hyderabad, for the commission of
    offence punishable under Sections 120-B, 419, 420, 467, 468
    471 read with Section 109 of the Indian Penal Code, 1860 (in
    short 'the IPC') and Section 13(2) read with Section 13( 1)( d)
B   of the Prevention of Corruption Act, 1988 for abusing their
    official position as public servants and for having conspired with
    private individuals, viz., Shri P.Y. Kondala Rao - the builder (A-
    3) and Shri N.S. Sanjeeva Rao (A-4) and other unknown
    persons for defrauding the bank by sanctioning and
C   disbursement of housing loans to 22 borrowers in violation of
    the Bank's rules and guidelines and thereby caused wrongful
    loss of Rs. 1.27 crores to the Bank and corresponding gain for
    themselves. In furtherance of the said conspiracy, A-2
    conducted the pre-sanction inspection in respect of 22 housing
    loans and A-1 sanctioned the same.
0
         (b) After completion of the investigation, the CBI filed
    charge sheet along with the list of witnesses and the list of
    documents against all the accused persons. In the said charge
    sheet, Shri K. Narayana Rao, the respondent herein, who is a
E   legal practitioner and a panel advocate for the Vijaya Bank, was
    also arrayed as A-6. The duty of the respondent herein as a
    panel advocate was to verify the documents and to give legal
    opinion. The allegation against him is that he gave false legal
    opinion in respect of 10 housing loans. It has been specifically
F   alleged in the charge sheet that the respondent herein (A-6)
    and Mr. K.C. Ramdas (A-7)-the valuer have failed to point out
    the actual ownership of the properties and to bring out the
    ownership details and name of the apartments in their reports
    and also the falsity in the permissions for construction issued
G   by the Municipal Authorities.

          (c) Being aggrieved, the respondent herein (A-6) filed a
    petition being Criminal Petition No. 2347 of 2008 under Section
    482 of the Code before the High Court of Andhra Pradesh at
    Hyderabad for quashing of the criminal proceedings in CC No.
H
 CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                63
       K. NARAYANA RAO [P. SATHASIVAM, J.]

 44 of 2007 on the file of the Special Judge for CBI Cases, A
 Hyderabad. By impugned judgment and order dated
 09.07.2010, the High Court quashed the proceedings insofar
 as the respondent herein (A-6) is concerned.

     (d) Being aggrieved, the CBI, Hyderabad filed this appeal      B
 by way of special leave.

      4. Heard Mr. H.P. Raval, learned Additional Solicitor
 General for the appella.nt-CBI and Mr. R. Venkataramani,
 learned senior counsel for the respondent (A-6).
                                                                    c
     5. After taking us through the allegations in the charge
sheet presented before the special Court and all other relevant
materials, the learned ASG has raised the following
contentions:

     (i) The High Court while entertaining the petition under D
Section 482 of the Code has exceeded its jurisdiction. The
powers under Section 482 are inherent which are to be
exercised in exceptional and extraordinary circumstances. The
power being extraordinary has to be exercised sparingly,
cautiously and in exceptional circumstances;                  E

     (ii) The High Court has committed an error in holding that
no material had been gathered by the investigating agency
against the respondent herein (A-6) that he had conspired with
the remaining accused for committing the offence; and               F
       (iii) There is no material on record to show that the
  respondent herein (A-6) did not verify the originals pertaining
  to housing loans before giving legal opinion and intentionally
· changed the proforma and violated the Bank's circulars.
                                                                    G
     6. On the other hand, Mr. Venkataramani, learned senior
counsel for the respondent (A-6), after taking \JS through the
charge sheet and the materials placed before the respondent
seeking legal opinion, submitted that he has not committed any
offence much less an offence punishable under Section 120-B         H
    64        SUPREME COURT REPORTS               [2012] 9 S.C.R.


A   read with Sections 419, 420, 467, 468, 471 and 109 of IPC
    and Section 13(2) read with Section 13(1 )(d) of the Prevention
    of Corruption Act, 1988. He further submitted that based on the
    documents placed, the respondent herein after perusing and
    on satisfying himself, furnished his legal opinion for which he
B   cannot be implicated as one of the conspirators for the offence
    punishable under Section 420 read with Section 109 IPC.

        7. We have carefully perused all the relevant materials and
    considered the rival submissions.

c        8. In order to appreciate the stand of the CBI and the
    defence of the respondent, it is necessary to refer the specific
    allegations in the charge sheet. The respondent herein has
    been arrayed as accused No. 6 in the charge sheet and the
    allegations against him are as under:
D
         "Para 20: Investigation revealed that legal opinions in
         respect of all these 10 loans have been given by Panel
         Advocate - Sri K. Narayana Rao (A-6) and valuation
         reports were given by Approved Valuer - Sri V.C.
         Ramdas(A-7). Both, the advocate and the valuer, have
E
         failed to point out the actual ownership of the property and
         failed to bring out the ownership details and name of the
         apartments in their reports. They have also fail1Sd to point
         out the falsehood in the construction permission issued by
         the municipal authorities.
F
         Para ·2a: Investigation revealed that the municipal
         permissions submitted to the bank were also fake.

         Para 29: Expert of Finger Print Bureau confirmed that the
         thumb impressions available on the questioned 22 title
G
         deeds pertain to A-3, A-4 and A-5.

         ·Para 30: The above facts disclose that Sri P. Radha Gopal
          Reddy (A-1) and Sri M. Udaya Sankar (A-2) entered into
          criminal conspirary with A-3 and abused their official
H         position as public servants by violating the bank norms and
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                 65
      K. NARAYANA RAO [P. SATHASIVAM, J.]

    in the process caused wrongful gain to A-3 to the extent        A
    of Rs.1,00,68,050/- and corresponding wrongful loss to the
    bank in sanctioning 22 housing loans. Sri P.Y. Kondal
    Rao(A-3) registered false sale deeds in favour of
    borrowers using impostors as site owners, produced false
    municipal permissions and cheated the bank in getting the       B
    housing loans. He is liable for conspiracy, cheating, forgery
    for the purpose of cheating and for using forged documents
    as genuine. Sri B. Ramanaji Rao(A-4) and Sri R. Sai Sita
    Rama Rao(A-5) impersonated as site owners, executed
    the false sale deeds. They are liable for impersonation,        c
    conspiracy, cheating, forging a valuable security and
    forgery for the purpose of cheating. Sri K. Narayana Rao
    (A-6) submitted false legal opinions and Sri K.C.
    Ramdas(A-7) submitted false valuation reports about the
    genuineness of the properties in collusion with A-3 for         D
    sanction of the loans by Vijaya Bank, Narayanaguda
    branch, Hyderabad and abetted the crime. Sri A.V. Subba
    Rao(A-8) managed verification of salary slips of the
    borrowers of 12 housing loans in collusion with A-3 and
    abetted the crime.
                                                                    E
    Para 33: In view of the above, the accused A-1, A-2, A-3,
    A-4, A-5, A-6, A-7 & A-8 are liable for offences punishable
    under Section 120-B read with Sections 419, 420, 467,
    468, 471 and 109 read with Section 420 IPC and Section
    13(2) read with Section 13(1 )(d) of the Prevention of          F
    Corruption Act and substantive offences thereof."

With the above details, let us consider whether there is prima
facie allegation(s) and material(s) in order to pursue the trial
against the respondent herein. In the same way, we have to see      G
whether the reasoning and the ultimate conclusion of the High
Court in quashing the charge sheet against the respondent
herein (A-6) is sustainable. We are conscious of the power and
jurisdiction of the High Court under Section 482 of the Code
for interfering with the criminal prosecution at the threshold.
                                                                    H
    66        SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A        9. Mr. Raval, learned ASG in support of his contentions
    relied on the following decisions:

         (i) State of Bihar vs. Ramesh Singh, (1977) 4 SCC 39;

         (ii) P. Vijayan vs. State of Kera/a and Another, (2010) 2
B        sec 398; and
         (iii) Sajjan Kumar vs. Central Bureau of Investigation,
         (2010) 9 sec 368.

C          10. The first decision Ramesh Singh (supra) relates to
    interpretation of Sections 227 and 228 of the Code for the
    considerations as to discharge the accused or to proceed with
    trial. Para 4 of the said judgment is pressed into service which
    reads as under:
D        "4. Under Section 226 of the Code while opening the case
         for the prosecution the Prosecutor has got to describe the
         charge against the accused and state by what evidence
         he proposes to prove the guilt of the accused. Thereafter
         comes at the initial stage the duty of the Court to consider
E        the record of the case and the documents submitted
         therewith and to hear the submissions of the accused and
         the prosecution in that behalf. The Judge has to pass
         thereafter an order either under Section 227 or Section
         228 of the Code. If "the Judge considers that there is no
F        sufficient ground for proceeding against the accused, he
         shall discharge the accused and record his reasons for so
         doing", as enjoined by Section 227. If, on the other hand,
         "the Judge is of opinion that there is ground for presuming
         that the accused has committed an offence which- ... (b)
G        is exclusively triable by the Court, he shall frame in writing
         a charge against the accused", as provided in Section 228.
         Reading the two provisions together in juxtaposition, as
         they have got to be, it would be clear that at the beginning
         and the initial stage of the trial the truth, veracity and effect
         of the evidence which the Prosecutor proposes to adduce
H
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                  67
      K. NARAYANA RAO [P. SATHASIVAM, J.]
   are not to be meticulously judged. Nor is any weight to be        A
   attached to the probable defence of the accused. It is not
   obligatory for the Judge at that stage of the trial to consider
   in any detail and weigh in a sensitive balance whether the
   facts, if proved, would be incompatible with the innocence
   of the accused or not. The standard of test and judgment          B
   which is to be finally applied before recording a finding
   regarding the guilt or otherwise of the accused is not
   exactly to be applied at the stage of deciding the matter
   under Section 227 or Section 228 of the Code. At that
   stage the Court is not to see whether there is sufficient         c
   ground for conviction of the accused or whether the trial is
   sure to end in his conviction. Strong suspicion against the
   accused, if the matter remains in the region of suspicion,
   cannot take the place of proof of his guilt at the conclusion
   of the trial. But at the initial stage if there is a strong
                                                                     0
   suspicion which leads the Court to think that there is
   ground for presuming that the accused has committed an
   offence then it is not open to the Court to say that there is
   no sufficient ground for proceeding against the accused.
   The presumption of the guilt of the accused which is to be
   drawn at the initial stage is not in the sense of the law         E
   governing the trial of criminal cases in France where the
   accused is presumed to be guilty unless the contrary is
   proved. But it is only for the purpose of deciding prima
   facie whether the Court should proceed with the trial or not.
   It the evidence which the Prosecutor proposes to adduce           F
   to prove the guilt of the accused even if fully accepted
   before it is challenged in cross-examination or rebutted by
   the defence evidence, if any, cannot show that the accused
   committed the offence, then there will be no sufficient
   ground for proceeding with the trial. An exhaustive list of       G
   the circumstances to indicate as to what will lead to one
   conclusion or the other is neither possible nor advisable.
   We may just illustrate the difference of the law by one more
   example. If the scales of pan as to the guilt or innocence
   of the accused are something like even, at the conclusion         H
    68        SUPREME COURT REPORTS                  [2012] 9 S.C.R.


A        of the trial, then, on the theory of benefit of doubt the case
         is to end in his acquittal. But if, on the other hand, it is so
         at the initial stage of making an order under Section 227
         or Section 228, then in such a situation ordinarily and
         generally the order which will have to be made will be one
B        under Section 228 and not under Section 227."

        11. Discharge of accused under Section 227 of the Code
    was extensively considered by this Court in P. Vijayan (supra)
    wherein it was held as under:

c        "10 ........ If two views are possible and one of them gives
         rise to suspicion only, as distinguished from grave
         suspicion, the trial Judge will be empowered to discharge
         the accused and at this stage he is not to see whether the
         trial will end in conviction or acquittal. Further, the words
D        "not sufficient ground for proceeding against the accused"
         clearly show that the Judge is not a mere post office to
         frame the charge at the behest of the prosecution, but has
         to exercise his judicial mind to the facts of the case in
         order to determine whether a case for trial has been made
E        out by the prosecution. In assessing this fact, it is not
         necessary for the court to enter into the pros and cons of
         the matter or into a weighing and balancing of evidence
         and probabilities which is really the function of the court,
         after the trial starts.
F        11. At the stage of Section 227, the Judge has merely to
         sift the evidence in order to find out whether or not there
         is sufficient ground for proceeding against the accused.
         In other words, the sufficiency of ground would take within
         its fold the nature of the evidence recorded by the police
G        or the documents produced before the court which ex facie
         disclose that there are suspicious circumstances against
         the accused so as to frame a charge against him."

       12. While considering the very same provisions i.e.,
H framing of charges and discharge of accused, again in Sajjan
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                    69
      K. NARAYANA RAO [P. SATHASIVAM, J.]

Kumar (supra}, this Court held thus:                                   A

    "19. It is clear that at the initial stage, if there is a strong
    suspicion which leads the court to think t~at there is ground
    for presuming that the accused has committed an offence,
    then it is not open to the court to say that there is no           B
    sufficient ground for proceeding against the accused. The
    presumption of the guilt of the accused which is to be
    drawn at the initial stage is only for the purpose of deciding
    prima facie whether the court should proceed with the trial
    or not. If the evidence which the prosecution proposes to          C
    adduce proves the guilt of the accused even if fully
    accepted before it is challenged in cross-examination or
    rebutted by the defence evidence, if any, cannot show that
    the accused committed the offence, then there will be no
    sufficient ground for proceeding with the trial.
                                                                       D
    20. A Magistrate enquiring into a case under Section 209
    CrPC is not to act as a mere post office and has to come
    to a conclusion whether the case before him is fit for
    commitment of the accused to the Court of Session. He
    is entitled to sift and weigh the materials on record, but only    E
    for seeing whether there is sufficient evidence for
    commitment, and not whether there is sufficient evidence
    for conviction. If there is no prima facie evidence or the
    evidence is totally unworthy of credit, it is the duty of the
    Magistrate to discharge the accused, on the other hand,            F
    if there is some evidence on which the conviction may
    reasonably be based, he must commit the case. It is also
    clear that in exercising jurisdiction under Section 227
    CrPC, the Magistrate should not make a roving enquiry into
    the pros and cons of the matter and weigh the evidence             G
    as if he was conducting a trial.

    Exercise of jurisdiction under Sections 227 and 228
    CrPC

    21. On consideration of the authorities about the scope of         H
    70        SUPREME COURT REPORTS                   [2012] 9 S.C.R.


A        Sections 227 and 228 of the Code, the following principles
         emerge:

         (i) The Judge while considering the question of framing the
         charges under Section 227 CrPC has the undoubted
         power to sift and weigh the evidence for the limited
B
         purpose of finding out whether or not a prima facie case
         against the accused has been made out. The test to
         determine prima facie case would depend upon the facts
         of each case.
c        (ii) Where the materials placed before the court disclose
         grave suspicion against the accused which has not been
         properly explained, the court will be fully justified in framing
         a charge and proceeding with the trial.

D        (iii) The court cannot act merely as a post office or a
         mouthpiece of the prosecution but has to consider the
         broad probabilities of the case, the total effect of the
         evidence and the documents produced before the court,
         any basic infirmities, etc. However, at this stage, there
         cannot be a roving enquiry into the pros and cons of the
E
         matter and weigh the evidence as if he was conducting a
         trial.

         (iv) If on the basis of the material on record, the court could
         form an opinion that the accused might have committed
F        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.
         (v) At the time of framing of the charges, the probative value
G        of the material on record cannot be gone into but before
         framing a charge the court must apply its judicial mind on
         the material placed on record and must be satisfied that
         the commission of offence by the accused was possible.

         (vi) At the stage of Sections 227 and 228, the court is
H
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                   71
      K. NARAYANA RAO [P. SATHASIVAM, J.]
    required to evaluate the material and documents on record         A
    with a view to find out if the facts emerging therefrom taken
    at their face value disclose the existence of all the
    ingredients constituting the alleged offence. For this limited
    purpose, sift the evidence as it cannot be expected even
    at that initial stage to accept all that the prosecution states   B
    as gospel truth even if it is opposed to common sense or
    the broad probabilities of the case.

     (vii) If two views are possible and one of them gives rise
     to suspicion only, as distinguished from grave suspicion,        C
     the trial Judge will be empowered to discharge the
     accused and at this stage, he is not to see whether the
     trial will end in conviction or acquittal."

From the above decisions, it is clear that at the initial stage, if
there is a strong suspicion which leads the Court to think that       D
there is ground for presuming that the accused has committed
an offence, in that event, it is not open to the Court to say that
there is no sufficient ground for proceeding against the
accused. A judicial magistrate enquiring into a case under
Section 209 of the Code is not to act as a mere post office           E
and has to arrive at a conclusion whether the case before him
is fit for commitment of the accused to the Court of Session.
He is entitled to sift and weigh the materials on record, but only
for seeing whether there is sufficient evidence for commitment,
and not whether there is sufficient evidence for conviction. On       F
the other hand, ifthe Magistrate finds that there is no prima facie
evidence or the evidence placed is totally unworthy of credit, it
is his duty to discharge the accused at once. It is also settled
law that while exercising jurisdiction under Section 227 of the
Code, the Magistrate should not make a roving enquiry into the        G
pros and cons of the matter and weigh the evidence as if he
was conducting a trial. This provision was introduced in the
Code to avoid wastage of public time and to save the accused
from unavoidable harassment and expenditure. While analyzing
the role of the respondent herein (A-6) from the charge sheet         H
    72        SUPREME COURT REPORTS                 [2012] 9 S.C.R.


A and the materials supplied along with it, the above principles
  have to be kept in mind.

        13. In Rupan Deol Bajaj (Mrs.) and Another vs. Kanwar
  Pal Singh Giff and Another, (1995) 6 SCC 194, this Court has
  considered the scope of quashing an FIR and held that it is
8
  settled principle of law that at the stage of quashing an FIR or
  complaint, the High Court is not justified in embarking upon an
  enquiry as to the probability, reliability or genuineness of the
  allegations made therein. By noting the principles laid down in
C State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335, this
  Court held that an FIR or a complaint may be quashed if the
  allegations made therein are so absurd and inherently
  improbable that no prudent person can ever reach a just
  conclusion that there is sufficient ground for proceeding against
  the accused.
D
       14. In Mahavir Prashad Gupta and Another vs. State of
  National Capital Territory of Delhi and Others, (2000) 8 SCC
  115, this Court considered the jurisdiction of the High Court
  under Section 482 of the Code and held as under:
E
         "5. The law on the subject is very clear. In the case of State
         of Bihar v.. Murad Ali Khan (1988) 4 SCC 655 it has been
         held that jurisdiction under Section 482 of the Code of
         Criminal Procedure has to be exercised sparingly and with
         circumspection. It has been held that at an initial stage a
F        court should not embark upon an inquiry as to whether the
         allegations in the complaint are likely to be established by
         evidence or not. Again in the case of State of Haryana v.
         Bhajan Lal 1992 Supp. (1) SCC 335 this Court has held
         that the power of quashing criminal proceedings must be
G        exercised very sparingly and with circumspection and that
         too in the rarest of rare cases. It has been held that the
         court would not be justified in embarking upon an inquiry
         as to the reliability or genuineness or otherwise of the
         allegations made in the FIR or the complaint. It has been
H        held that the extraordinary or inherent powers did not
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                   73
      K. NARAYANA RAO [P. SATHASIVAM, J.]

     confer an arbitrary jurisdiction on the court to act according   A
     to its whim or caprice.

     15. Regarding conspiracy, Mr. Raval, learned ASG after
taking us through the averments in the charge sheet based
reliance on a decision of this Court in Shivnarayan                   B
Laxminarayan Joshi and Others vs. State of Maharashtra,
( 1980) 2 sec 465 wherein it was held that once the conspiracy
to commit an illegal act is proved, act of one conspirator
becomes the act of the other. By pointing out the same, learned
ASG submitted that the respondent herein (A-6), along with the        C
other conspirators defrauded the Bank's money by sanctioning
loans to various fictitious persons.

      16. We have already extracted the relevant allegations and
the role of the respondent herein (A-6). The only allegation
against the respondent is that he submitted false legal opinion       D
to the Bank in respect of the housing loans in the capacity of a
panel advocate and did not point out actual ownership of the
properties. As rightly pointed out by Mr. Venkataramani,
learned senior counsel for the respondent, the respondent was
not named in the FIR. The allegations in the FIR are that A-1 to      E
A-4 conspired together and cheated Vijaya Bank,
Narayanaguda, Hyderabad to the tune of Rs. 1.27 crores. It is
further seen that the offences alleged against A-1 to A-4 are
the offences punishable under Sections 120B, 419, 420, 467,
468 and 471 of IPC and Section 13(2) read with Section 13             F
(1 )(d) of the Prevention of Corruption Act, 1988. It is not in
dispute that the respondent is a practicing advocate and
according to Mr. Venkataramani, he has experience in giving
legal opinion and has conducted several cases for the banks
including Vijaya Bank. As stated earlier, the only allegation         G
against him is that he submitted false legal opinion about the
genuineness of the properties in question. It is the definite stand
of the respondent herein that he has rendered Legal Scrutiny
Reports in all the cases after perusing the documents submitted
by tl:le Bank. It is also his claim that rendition of legal opinion
                                                                      H
    74          SUPREME COURT REPORTS            (2012) 9 S.C.R.


A cannot be construed as an offence. He further pointed out that
  it is not possible for the panel advocate to investigate the
  genuineness of the documents and in the present case, he only
  perused the contents and concluded whether the title was
  conveyed through a document or not. It is also brought to our
B notice that LW-5 (Listed Witness), who is the Law Officer of
  Vijaya Bank, has given a statement regarding flaw in respect
  of title of several properties. It is the claim of the respondent
  that in his statement, LW-5 has not even made a single
  comment as to the veracity of the legal opinion rendered by the
c respondent herein. In other words, it is the claim of the
  respondent that none of the witnesses have spoken to any overt
  act on his part or his involvement in the alleged conspiracy.
  Learned senior counsel for the respondent has also pointed out
  that out of 78 witnesses no one has made any relevant
  comment or statement about the alleged involvement of the
0
  respondent herein in the matter in question.

         17. In order to appreciate the claim and the stand of the
  respondent herein as a panel advocate, we have perused the
  legal opinion rendered by the respondent herein in the form of
E Legal Scrutiny Report dated 10.09.2003 as to the title relating
  to Sri B.A.V.K. Mohan Rao, S/o late Shri Someshwar Rao
  which is as under.
         "Legal Scrutiny Report
                                  Dated 10.09.2003.
F        To
         The Branch Manager,
         Vijaya Bank,
         Narayanaguda
         Hyderabad
G
         Sir,
         Sub:- Title Opinion Shri BAVK Mohan Rao
                            S/o Late Shri Someswar Rao.
         With reference to your letter dated NIL. I submit my
H        Scrutiny Report as hereunder:-
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.               75
      K. NARAYANA RAO [P. SATHASIVAM, J.)
     1.     Name and address of the Mortgagor                    A
            Shri. BAVK Mohan Rao
            S/o Late Shri Someswar Rao
            Rio 1-1 290/3, Vidyanager, Hyderabad.
     2. Details/Description of documents scrutinized:
                                                                 B
SI.No. Date          Name of the documents Whether
                                              Original/
                                              Certified True
                                              Copy
1.        12.05.2003 C.C. Pahais for the year Xerox Copy
                                                                 c
                     1972-73 and 1978-79
2.        08.02.1980 Death Certificate of Shri Xerox Copy
                     PV Narahari Rao
                                                                 D
3.        07.03.1980 Legal Heir Certificate of Xerox Copy
                     Shri PV Narahari Rao
4.        24.04.1980 C.C. of Regd. GPA No. Xerox Copy
                     58/80
5.        19.09.1980 Regd. Sale Deed No.                         E
                                               Xerox Copy
                     1243/80 with Plan
6.        07.12.1998 Sanctioned Plan vide   Xerox Copy
                     proceeding No. 2155/98
7.        02.01.2003 Development Agreement Xerox Copy            F

8.        25.04.2003 EC No. 6654/2003 for      Xerox Copy
                     the period from
                     28.06.1980 to
                     31.03.1982                                  G
9.        25.04.2003 EC No. 4136/2003          Xerox Copy
                     for the period from
                     01.04.1982 to
                     23.03.1984
                                                                 H
    76         SUPREME COURT REPORTS               [2012] 9 S.C.R.


A 10.       21.04.2003    EC No. 3918/2003         Xerox Copy
                          for the period from
                          24.03.1994 to 20.04.2003
    11.     28.07.2003    Agreement for Sale           Original

B 3. Details/Description of Property:-
    Sl.No. Sy. No./H.No. Extent of land Location      Boundaries
                          Building      Dist. Village
          All that Flat bearing No. F-5 on First Floor, admeasuring
          900 sq. Ft, along with undivided share of land 28 sq yds,
c         out of total admeasuring 870 sq. yds constructed on Plot
          Nos. 3, 4 and 5 in Sy. Nos. 84 and 85 in the premises of
          "Guru Datta Nivas", situated at Nerdmet, Malkajagiri
          Municipality, and Manda!, Ranga Reddy Dist. Hyderabad
          and bounded by:
D
          FLAT BOUNDARIES:                LAND BOUNDARIES
          NORTH: Flat No. F-6             20-0"
          SOUTH: Open to sky              Wide Road, Sy No. 86
          EAST : Corridor & Stair Case    Sy. Nos. 76 and 78 open
                                         to sky.
E
          WEST : Open to sky
          4. Brief History of the Property and How the owner/
          Mortgagor has derived title:

          The Pahains for the years 1972-73 and 1978-79 under
F
          document No. 1 reveals that Sri. Venkat Naraari Rao is
          the pattadar and possessor of the land admeasuring Ac.
          1-31 guntas in Sy No. 84 and Ac. 1-22 guntas in Sy No.
          85 of Malkajgiri, Hyderabad.

G         The document No. 2 shows that Sri. PV Narahari Rao was
          expired on 23. 01.1980 as per the Death Certificate issued
          by MCH.

          The document No 3 shows that Smt. Saraswathi Bai is only
H         the legal heir of Late Shri PV Narahari Rao.
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v. 77
      K. NARAYANA RAO [P. SATHASIVAM, J.]

   The document No. 4 shows that Smt. Saraswathi Bai A
   executed a GPA in favour of Sri. CV Prasad Rao,
   empowering him to deal and sell the above said property.
   The GPA was registered in the office of sub-Registrar of
   Hyderabad-East vide document No. 58/80 dated
   24.04.1980.                                              B

   The document No. 5 shows that Smt. Saraswathi Bai sold
   the Plot Nos. 3, 4 and 5 admeasuring 870 sq yds. situated
   at Malkajgiri, Hyderabad to Smt. N. Samson Sanjeeva
   Rao and executed a sale deed in his favour by virtue of
   document No. 1243/80 dated 19.09.1980 registered in the C
   office of sub-registrar of Uppat, Ranga Reddy.

   The document No. 6 shows that Shri N. Samson Sanjeeva
   Rao obtained permission from Malkajgiri Municipality for
   construction of Residential building consisting of Ground       D
   + 4 floors vide permit No. G1/2155/98 dated 07.12.1998.
   The document No. 7 shows that Shri N. Samson Sanjeeva
   Rao entered into development agreement with Shri PY
   Kondal Rao for construction of residential flats in the above   E
   said plots.

   The document Nos. 8, 9 and 1O are the Encumbrance
   Certificates for the period from 28.06.1998 tQ-20.04.2003
   (23 years) which disclose only the transactions mentioned
   in document No. 5.                                              F

   The document No. 11 shows that Shri N. Samson
   San1eeva Rao (owner) along with Shri PY Kondal Rao
   (builder) agreed to sell the Schedule Property (referred
   under Item No. Ill of this opinion) to Shri BAVK Mohan Rao      G
   (applicant) for a total sale consideration of Rs. 5,50,000/-
   and Shri. BAVK Mohan Rao (applicant) also agreed to
   purchase the said property for the same consideration.

   5. Search and Investigation.
                                                                   H
    78         SUPREME COURT REPORTS                    [2012] 9 S.C.R.


A    5.1           The person who is           Shri NS Sanjeeva Rao
                   the present owner of        (present
                   the property                owner/vendor) and
                                               Shri BAVK Mohan Rao
                                               (purchaserNendee)
B
    5.2            )()()(                      )()()(

    to 5.5
    5.6            Whether there the           The document No. 5
                   latest title deed and       is available in Xerox
c                  immediately previous        (original verified)
                   title deed(s) are
                   available in original
    5.7            )()()(                      )()()(

D   to 5.13
    5.14           Whether the proposed       Yes, Equitable
                   equitable mortgage by      mortgage is possible.
                   deosit of title deed is    The original registered
                   possible? If so, what      Sale Deed executed
E                  are the documents to       in favour of Shri BAVK
                   be deposited? If deposit   Mohan      Rao (applicant)
                   is not possible, can there by the Vendors along
                   be simple mortgage or a with all the
                   registered memorandum documents as
F                  or by any other mode of mentioned in the
                   mortgage?                  list in Item No. 2
                                              of this opinion should
                                              be deposited.
    5.15           )()()(                      )()()(

G   to 5.20
    6-8      xxx        xxx   xxx
           9. CERTIFICATE
           I am of the opinion that Shri NS Sanjeeva Rao is having
H          clear marketable title by virtue of Regd. Sale Deed No.
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                  79
      K. NARAYANA RAO [P. SATHASIVAM, J.)

      1243/1980 dated 19.09.1980 referred document No. 5 of A
      this opinion. He can convey a valid clear marketable title
      in favour of Shri BAVK Mohan Rao (applicant) in respect
      of the schedule property (referred under Item No. 3 of this
      opinion) by duly executing a Regd. Sale Deed in his favour.
                                                                     B
      Shri BAVK Mohan Rao (applicant) can create a valid
      equitable mortgage with the Bank by depositing the
      original Regd. Sale deed executed in his by the vendors
      and also depositing all the documents as mentioned in the
      list in Item No. 2 of this opinion. I further certify that:-
                                                                     c
 1.   There are no prior mortgage/charge
       whatsoever as could be seen from
       the encumbrance certificate for the
       period     from    28.06.1980    to          Yes
       20.04.2003 pertaining to the
                                                                     D
       immovable property covered by the
       above title deed(s).

2.    There are prior mortgages/charges to
                                                    NA
       the extent, which are liable to be
       cleared or satisfied by complying with                        E
       the following.

3.    There are claims from minors and his/
       her/their interest in the property to the    NA
       extent of (specify) the share of
       minor(s) with name
                                                                     F

4.    The undivided share of minor of
                                                    NA
       (specify the liability that is fastended
       or could be fastened on the property).

5.    The property is subject to the payment                         G
                                                    NA
       of Rupees (specify the liability that is
       fastened or could be fastened on the
       property)
 6.   Provisions of Urban Land (Ceiling and                          H
    80        SUPREME COURT REPORTS                    [2012] 9 S.C.R.


A          Regulation) Act are not applicable.               NA
           Permission obtained.
     7.   Holdi_ng/Acquisitions in accordance
          with the provisions of the land:                   NA

B    8.   The mortgage if created will be perfect
           and available to the bank for the
           liability of the intending borrower: Shri
           BAVK Mohan Rao (Applicant)
          The Bank is advised to obtain the encumbrance certificate
c         for the period from 21.04.2003 till the date after obtaining
          a registered sale deed in favour of Shri BAVK Mohan Rao
          (applicant)
          SEARCH REPORT:

D        I have verified the title de¢d of Shri N.S. Sanjeeva Rao in
         the office of sub-Regis'trar of Uppal, Hyderabad on
         18.07.2003 and found that the sale transaction between
         parties, schedule property stamp papers, regd. Sale Deed
         No. 1243/1980 are genuine. The verification receipt is
         enclosed herewith.
E
                                               (K. NARAYANA RAO)
                                                       ADVOCATE"
    The above particulars show that the respondent herein, as a
    panel advocate, verified the documents supplied by the Bank
    and rendered his opinion. It also shows that he was furnished
F   with Xerox copies of the documents and very few original
    documents as well as Xerox copies of Death Certificate, Legal
    heir-ship Certificate, Encumbrance Certificate for his perusal
    and opinion. It is his definite claim that he perused those
    documents and only after that he rendered his opinion. He also
G   advised the bank to obtain Encumbrance Certificate for the
    period from 21.04.2003 till date. It is pointed out that in the
    same way, he furnished Legal Scrutiny Reports in respect of
    other cases also.

H         18. We have already mentioned that it is an admitted case
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                 81
      K. NARAYANA RAO [P. SATHASIVAM, J.]

of the prosecution that his name was not mentioned in the FIR.      A
Only in the charge-sheet, the respondent has been shown as
Accused No. 6 stating that he submitted false legal opinion to
the Bank in respect of the housing loans in the capacity of a
panel advocate and did not point out actual ownership of the
properties in question.                                             8
     19. Mr. Venkataramani, learned senior counsel for the
respondent submitted that in support of charge under Section
1208, there is no factual foundation and no evidence at all.
Section 120A defines criminal conspiracy which reads thus:
                                                                    c
    "120A. Definition of criminal conspiracy.- When two or
    more persons agree to do, or cause to be done,-

    (1) an illegal act, or
                                                                    D
    (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            E
    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."
                                                                    F
Section 1208 speaks about punishment of criminal conspiracy.
While considering the definition of criminal conspiracy, it is
relevant to refer Sections 34 and 35 of IPC which are as under:

    "34. Acts done by several persons in furtherance of G
    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."
                                                                    H
    82        SUPREME COURT REPORTS                [2012] 9 S.C.R.


A        "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
s        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."

          20. The ingredients of the offence of criminal conspiracy
    are that there should be an agreement between the persons
C   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
D   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
E   are proved to have 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
F   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.

G      21. In the earlier part of our order, first we have noted that
  the respondent was not named in the FIR and then we extracted
  the relevant portions from the charge-sheet about his alleged
  role. Though statements of several witnesses have been
  enclosed along with the charge-sheet, they speak volumes
  about others. However, there is no specific reference to the role
H of the present respondent along with the main conspirators.
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                 83
      K. NARAYANA RAO [P. SATHASIVAM, J.]

     22. The High Court while quashing the criminal                 A
 proceedings in respect of the respondent herein has gone into
the allegations in the charge sheet and the materials placed
for his scrutiny and arrived at a conclusion that the same does
 not disclose any criminal offence committed by him. It also
concluded that there is no material to show that the respondent     B
herein joined hands with A-1 to A-3 for giving false opinion. In
the absence of direct material, he cannot be implicated as one
of the conspirators of the offence punishable under Section 420
read with Section 109 of IPC. The High Court has also opined
that even after critically examining the entire material, it does   c
not disclose any criminal offence committed by him. Though as
pointed out earlier, a roving enquiry is not needed, however, it
is the duty of the Court to find out whether any prima facie
material available against the person who has charged with an
offence under Section 420 read with Section 109 of IPC. In the
                                                                    0
banking sector in particular, rendering of legal opinion for
granting of loans has become an important component of an
advocate's work. In the law of negligence, professionals such
as lawyers, doctors, architects and others are included in the
category of persons professing some special skills.
                                                                    E
     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   F
person operated on. The only assurance which such a
professional can give or can be given by implication is that he
is p9ssessed of the requisite skill in that branch of profession
which he is practising and while undertaking the performance
of the task entrusted to him, he would be exercising his skill      G
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
                                                                    H
    84       SUPREME COURT REPORTS                [2012) 9 S.C.R.


A 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
B 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.
c
          25. In Pandurang Oattatraya 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
D 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
E 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
F 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
G 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 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
H to connect him with the other conspirators for causing loss to
CENTRAL BUREAU OF INVESTIGATION, HYDERABAD v.                   85
      K. NARAYANA RAO [P. SATHASIVAM, J.)

the institution, undoubtedly, the prosecuting authorities are         A
entitled to proceed under criminal prosecution. Such tangible
materials are lacking in the case of the respondent herein.

      28. In the light of the above discussion and after analysing
all the materials, we are satisfied that there is no prima facie
                                                                      8
case for proceeding in respect of the charges alleged insofar
as respondent herein is concerned. We agree with the
conclusion of the High Court in quashing the criminal
proceedings and reject the stand taken by the CBI.

     29. In the light of what is stated above, the appeal fails and   C
the same is dismissed.

B.B.B.                                        Appeal dismissed.