High Court · 2022

Legal Reasoning

Heard Sri Sri V.M. Zaidi, learned Senior Advocate assisted by Sri M.J. Akhtar, learned counsel for the applicant, Sri Gyan Prakash, learned Senior Advocate / Deputy Solicitor General assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Subhan Ali, seeking enlargement on bail during trial in connection with RC-120 2017 A-0002 (Special Case No. 8 of 2020), under Sections 120-B r/w 420, 467, 468, 471 I.P.C., Section 13(2) r/w 13(1)(d) Prevention of Corruption Act, 1988, Section 13(2) r/w 13(1)(d) Prevention of Corruption Act and Section 66 of Information Technology Act, registered at Police Station C.B.I. A.C.B., District Ghaziabad. The First Information Report of the case was lodged on the basis of a complaint dated 13.01.2017 received from R.K. Srivastava on 16.01.2017 with the subject of fraudulent withdrawal of funds from accounts maintained in the Post Office. The accused named therein were are Rajiv Shankar the then Sub-Postmaster, Govindpuri (Modinagare), Ghaziabad, Mohan Singh the then Postal Agent, Head Post Office, District Ghaziabad, Deepak Garg a private person and other unknown persons. The allegations in the First Information Report are that during the year 2015 Ghaziabad Head Post Office was under the process of migration from Sanchay Post Offline software to Finacle online software. Before migration 61 already closed accounts being 49-RD accounts and 12 MIS accounts were reopened at Ghaziabad Head Office on different dates by making fake deposit entries by the Data Entry person. The said accounts were closed at Ghaziabad Head Office and Govindpuri Sub Office on different dates on the basis of fake and forged documents and the money which was transferred in the said accounts, was fraudulently withdrawn from the said closed accounts. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that for the same allegations the applicant was proceeded departmentally also and the department gave him a charge-sheet after which the applicant gave reply to the same and after full- fledged enquiry dropped four charges against him but only the charge no.1 stood proved and the conclusion as drawn was that part of the charges has been proved against him. He has placed the enquiry report before the Court which is annexed as Annexure-4 to the affidavit the allegation as drawn thereupon which is at page 54 of the paper-book to be more precise. It is argued that the applicant can be said to be negligent at the most but no criminality can be attached to the allegations as can be seen from the enquiry report which has been placed before the Court. While placing supplementary affidavit dated 23.12.2021 in which charge-sheet as filed by the C.B.I. in the present case has been annexed as Annexure-SA-7 learned counsel has drawn the attention of the Court to internal page 24 of the same being at page 88 of the supplementary affidavit and it is argued that the allegations against the applicant were that while being posted in Ghaziabad HO from 27.04.2012 to 15.04.2015 he passed the closure / withdrawal forms in favour of the so called depositors without matching their signatures, obtaining their ID's and ID's of the witnesses. Further it is alleged that he has not maintained any record for deposit of ID / password during his tenure. He had sanctioned withdrawals / closure violating the provisions of SB Rules. It is argued that the same clearly shows that the applicant was negligent in his duties. It is argued that there is no evidence whatsoever to show that the applicant was the beneficiary of the said amount as alleged to have been withdrawn on the sanction of him. It is further argued that the applicant has no criminal history as stated in para 27 of the affidavit in support of bail application which has not been denied or disputed by the C.B.I. in its counter affidavit dated 23.01.2022 while giving reply to the same in paragraph 48 of it. It is argued that since charge-sheet in the matter has been submitted as such there are no chances of the applicant tampering with the evidence or not co-operating in the investigation. It is further argued that co-accused Zahiruddin Khan and Rajeev Shankar have been granted bail by this Court vide orders dated 28.07.2022 and 15.11.2022 passed in Criminal Misc. Bail Application Nos. 35973 of 2021 and 53424 of 2021, the copy of the said order is annexed as Annexure-SA-1 to the second supplementary affidavit dated 24.10.2022. The applicant is in jail since 07.09.2021. Per contra, learned counsel for the C.B.I. opposed the prayer for bail and argued that since the applicant had sanctioned the withdrawal / closure of accounts without following the due procedure money was withdrawn and the said accounts were closed. The applicant did not even verify the genunity of the signatures by matching them with the originals and also did not verify through the IDs of the said persons and of the witnesses. It is argued while placing paragraph 15 of the counter affidavit that the applicant after several summons, bailable warrants, non-bailable warrants and then proceedings under Section 82 Cr.P.C. issued by the trial court surrendered before the court concerned and as such there are good chances of his absconding and not co-operating in the trial. The bail application thus be rejected. After having heard the learned counsel for the parties and perusing the record, it is evident that the applicant is said to have not followed the procedure for sanction for withdrawal / closure of account regarding verification of signatures. The investigation concluded and charge-sheet has been submitted. Co-accused Zahiruddin Khan and Rajeev Shankar have been granted bail. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. Let the applicant- Subhan Ali, be released on bail in the aforesaid case crime number on furnishing a personal bond and two heavy sureties (one of the sureties will be of family members) each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. The bail application is allowed. Order Date :- 8.12.2022 AS Rathore SINGH RATHOR Reason: Location: High Court of Judicature at Allahabad (Samit Gopal,J.)