Point of Law; charge under Section 120B I.P.C. criminal conspiracy postulates an agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal, by illegal means. It differs from the other offences in that mere agreement is made an offence even if no step is taken to carry out the agreement. A conspiracy from its very nature is generally hatched in secret. It is, therefore, extremely rare that direct evidence in proof of conspiracy can be forthcoming. But like other offences criminal conspiracy can be proved by circumstantial evidence.

JUDGMENT :

SUNEET KUMAR, J.

1. The matter is taken up through video conferencing.

2. Heard Mr. Sri. Prakash Sinha, Advocate, assisted by Sri. Mehul Khare, learned counsel for revisionist and Sri. Gyan Prakash, learned Addl. Solicitor General of India, assisted by Sri. Sanjay Kumar Yadav, Advocate, appearing for C.B.I.

3. The instant revision has been filed seeking following reliefs:

“It is therefore, most respectfully prayed that this Hon’ble Court may kindly be pleased to set-aside the judgment and order dated 15.07.2019, as well as judgment and order 09.08.2019, passed by the Learned Special Court, Anti Corruption, CBI, Ghaziabad in Special Case No. 10/2012 (CBI vs. Manoj Srivastava).

It is further prayed that this Hon’ble Court may be pleased to stay the effect and operation of the orders dated 15.07.2019 and 09.08.2019, passed by the Learned Special Court, Anti Corruption, CBI, Ghaziabad in Special Case No. 10/2012 (CBI vs. Manoj Srivastava) as well as to stay the proceedings of Special Case No. 10/2012 (CBI vs. Manoj Srivastava) under Sections 120-B IPC r/w 420, 467, 568, 471 IPC and 13(2) r/w 13(1)(d) Prevention of Corruption Act, 1988, pending before Learned Special Court, Anti Corruption, CBI Ghaziabad during the pendency of the present criminal revision before this Hon’ble Court, and/or pass such other and further order which this Hon’ble Court may deem fit and proper under the circumstances of the case.”

4. The revisionist, a Chartered Accountant, is aggrieved by rejection of the discharge application filed before the court below.

5. The facts, stated briefly, is as follows.

6. A case came to be registered by C.B.I. Ghaziabad, on 14.12.2010 on a written complaint of the Union Bank of India, Branch Noida, wherein it was alleged that Sri. Manoj Srivastava functioning as Branch Manager of SSI, Noida Branch, during May 2007 to May 2008, abusing his position as a public servant entered into criminal conspiracy with Proprietors of several (six) nominated firms/companies, thereby dishonestly causing loss to the bank and corresponding gain to the Proprietors and himself.

7. During investigation it was found that co-accused Manoj Srivastava entered into criminal conspiracy with Sri. Kaushal Kishore Sharma, Proprietor of M/s Surendera Electricals, whereby, accepting the audit reports, balance-sheets, trading account, profit and loss account as on 31.03.2006, 31.03.2007 and 31.03.2008, forged statement of account of Corporation Bank, Janakpuri, New Delhi, and forged sale-tax returns to obtain loan, thereby, caused loss to the bank. It is further alleged that these financial papers were prepared by the revisionist in conspiracy with the borrower.

8. Upon investigation charge sheet dated 29.09.2012 was filed, revisionist was made an accused. The Special Judge took cognizance of the offence on 19.10.2012. The challenge to the charge-sheet and cognizance before this Court and the Supreme Court failed, consequently revisionist filed discharge application which came to rejected by the impugned order dated 15.07.2015. Hence, the present revision.

9. It is submitted by learned counsel for revisionist that the revisionist had specifically pleaded in the discharge application that he had audited the financial statements (balance-sheets, trading account and profit and loss account) of the firm whose Proprietor is a co-accused. The audit was done in compliance of Section 44 AB of Income Tax Act, 1961, and thereon he had given his opinion which is the audit report. It was further contended that the audit report is an opinion of the auditor and such an opinion may be a wrong opinion but certainly is not a false opinion. Revisionist cannot be charged for the opinion given as a professional. In support of his submissions, reliance has been placed on Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao, (2012) 9 SCC 512.

10. Reliance is also placed on Chartered Accountants Act, 1949, and the Auditing and Assurance Standards-2 (hereinafter referred