Krishan Pahal, J.

1. List has been revised.

2. Heard Sri Prabhakar Awasthi and Sri Niraj Kumar Dwivedi, learned counsels for the applicant and Sri I.K. Chaturvedi, learned Advocate assisted by Sri Rajat Sharma, learned counsel for the informant as well as Sri R.P. Patel, learned A.G.A. for the State and also perused the record.

3. Applicant seeks bail in F.I.R./Case Crime No. 55 of 2023, under Sections 420, 409, 467, 468, 471 IPC, Police Station Sujanganj, District Jaunpur, during the pendency of trial.

PROSECUTION STORY:-

4. As per prosecution story, the applicant is stated to be the Additional Clerk in the institution being run by the informant, who happens to be its manager. The job of the applicant was to take care of the documents of the College including pertaining to the bank accounts in Union Bank of India, Branch Sujanganj, Jaunpur and he used to take care of all the transactions. Without any information, the applicant is stated to have absented himself since 9.3.2022. Despite many letters and reminders being sent to the applicant, no clarification was accorded by him. On suspicion, the statement of the account of the institution was taken from the Bank which indicated that an amount of Rs. 31,39,638/- has been wrongly withdrawn and the same has been transferred to the account number 366602010020750 of the applicant and he has misused the same.

5. It is also alleged in the FIR that the applicant had forged the signatures of the informant on the cheques and has caused loss to the State Ex-chequer including the institution. The Principal of the institution is also stated to have sent several letters to the applicant but he did not respond to any of them. On 16.1.2023, the Management Committee of the institution held an extraordinary meeting and passed a resolution that a 3-member committee shall open the wardrobe belonging to the applicant and get it video graphed. The said 3-member committee of Vijay Shankar Mishra, Sri Rakesh Kumar Tiwari and Heera Lal, in presence of the informant, had broke open the said wardrobe on 28th, 29th and 30th of January, 2023 and found several documents and files missing from it. A bare perusal of the record indicated that the applicant (Anil Kumar Mishra) had interpolated the documents and had taken them away.

RIVAL CONTENTIONS:

Contention On Behalf of Applicant:-

6. Learned counsel for the applicant has stated that the applicant is maliciously being prosecuted in the present case due to ulterior motive and has the apprehension of his arrest. The applicant has nothing to do with the said offence as alleged by the prosecution. Learned counsel has next stated that the applicant is stated to be working on the said post since 2018. Learned counsel has further stated that as per the letters sent to the applicant dated 25.12.2022, filed as Annexure-7 to the affidavit, an amount of Rs. 18,09,263/- is stated to have been withdrawn by the applicant, an amount of Rs. 13,30,375/- is stated to have been withdrawn by Kallu, and an amount of Rs. 3,39,537/- is stated to have been withdrawn by one Shyam Bahadur Yadav. It is next stated that the said letter indicates towards the embezzlement of Rs. 34,79,175/- but the FIR has been instituted regarding the embezzlement of Rs. 31,39,638/- only, which pertains to the said amount withdrawn by the applicant and Kallu. Learned counsel has stated that the said fact itself falsifies the prosecution story. It is stated that the alleged third person i.e. Shyam Bahadur Yadav had deposited the said amount in the account of the institution.

7. Learned counsel has stated that the co-accused person Kallu is stated to have sent a letter to the Manager/Principal of the institution on 18.4.2023 stating that he was ready to return the stipulated amount of Rs. 13,30,375/- due towards him. It is also alleged by the said person Kallu that it was the applicant, who used to give him cheques and take him to the Branch of the Bank and used to get the amount withdrawn from the account and retained the money with him. He was fleeced and fooled on the ground that he shall be promoted from Class IV employee to the post of Clerk. It is stated that the said statement is also contradictory, as the said Kallu is stated to be committing the said forgery from the year 2013 and the applicant came into existence on the said post in the year 2018, as such, the complete prosecution story falls to the ground.

8. Learned counsel has also stated that all the money transactions have taken place through cheques and there is no FSL report on record to suggest that the said signatures of the informant have been forged by anybody. Learned counsel has further stated that no bank official could pass such large number of cheques bearing fake signatures without collusion.

9. Learned counsel has also placed reliance on the account statement of the applicant filed as Annexure-2 to the rejoinder affidavit dated 11.1.2024, whereby he has indicated that the money deposited was immediately withdrawn, as is evident from the transactions dated 6.11.2018, 29.5.2019, 12.7.2019, 30.8.2019, 30.12.2019, 17.1.2020, 8.5.2020, 5.8.2020 and 18.5.2021. Learned counsel has stated that it was the modus operandi of the informant was that he himself issued cheques to the applicant and other persons including Kallu and Shyam Bahadur Yadav and used to retain the amount in cash with him but he has himself exonerated the two other persons and the applicant has been made a scapegoat by the informant, to save his own skin.

10. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is further stated that there is no criminal history of the applicant. The applicant is languishing in jail since 17.3.2023. In case, the applicant is released on bail, he will not misuse the liberty of bail.

Contention On Behalf Of The Informant:-

11. On the other hand, learned A.G.A. and learned Senior Counsel for the informant have vehemently opposed the prayer for grant of anticipatory bail on the ground that the applicant is the chief architect of the said crime and the signatures on the said cheques through which the amount has been withdrawn have been sent to the forensic laboratory by the investigating officer, although final report (charge sheet) has been filed. The FSL report is still awaited. Learned Senior Counsel has further stated that the said amount received in the account of the applicant has been siphoned off to the loan account of the applicant and even income tax has been paid from it.

CONCLUSION:-

12. This Court in Emperor vs. H.L. Hutchinson, AIR 1931 All 356, [LQ/AllHC/1931/92] has observed that the grant of bail is a rule and refusal is an exception. A liberal interpretation to the provision for bail is the cardinal principle of criminal jurisprudence. It has also been observed by the Apex Court and this Court in a number of judgements that bail is not to be withheld as a punishment.

13. Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India, and taking into consideration the fact that in total, an amount of Rs. 34,79,175/- has been embezzled and FIR has been instituted regarding the embezzlement of amount of Rs. 31,39,638/- only, as such, there cannot be pick and choose in the said matter of embezzlement and also taking into consideration that all the withdrawal has been made through cheques and there is no FSL report on record to suggest that the signatures have been forged, coupled with the fact that the applicant has no criminal history, without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

14. Let the applicant- Anil Kumar Mishra who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with evidence.

(ii) 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.

15. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

16. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.