Patna High Court
Birendra Kumar Mishra vs Central Bureau Of Investigation ... on 24 February, 2023
Author: Nawneet Kumar Pandey
Bench: Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.14294 of 2022
Arising Out of PS. Case No.-13 Year-2017 Thana- C.B.I CASE District- Patna
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BIRENDRA KUMAR MISHRA SON OF SHRI JAICHANDRA MISHRA
Resident of Village - and Post - Kothia, P.S.- Bhairav Asthan, Distt.-
Madhubani (Bihar).
... ... Petitioner/s
Versus
Central Bureau of Investigation through its Superintendent of Police, Patna
Bihar.
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Manish Kumar No. 2, Adv.
For the Opposite Party/s : Ms. Nivedita Nirvikar, Sr. Adv.
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CORAM: HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
Date : 24-02-2023
I have already heard the learned counsel for the petitioner
as well as Ms. Nivedita Nirvikar, the learned Senior counsel for
the Central Bureau of Investigation (CBI).
The petitioner apprehends his arrest in connection with
Special Case No. 02 of 2021, arising out of R.C. Case
No.13/A/2017, arisen from Bhagalpur Kotwali P.S. Case No.500
of 2017, registered for the offences punishable under Sections
409, 420, 467, 468, 471 and 120B of the Indian Penal Code and
the charge-sheet has been submitted under Sections 409, 420,
467, 468, 471, 477A and 120B of the Indian Penal Code and
Section 13(2) r/w 13 (1) (d) of the Prevention of Corruption Act.
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This matter relates to infamous Srijan scam. A huge
public money, i.e., crores of rupees were illegally transferred
into bank account of Srijan Mahila Vikash Sahyog Samiti
Limited (hereinafter referred to as SMVSSL), which is a non-
governmental organization. A number of public servants were
alleged to be involved in that scam.
Brief fact of this case is one of the cases in Srijan Scam
and was registered by CBI, AC-II, New Delhi on 25.08.2017, by
taking over investigation of FIR No. 500/2017 dated 08.08.2017
of Kotwali Thana (Tilkamanjhi), Bhagalpur, registered under
Sections 409, 420, 467, 468, 471, 120B and 34 of the Indian
Penal Code, in compliance to the notification no. 8/CBI-80-
05/2017HP-6715 under Section 6 of DSPE Act, issued by the
Home Department, Government of Bihar, Patna and notification
no. 228/41/2017-AVD-II dated 21.08.2017, under Section 5(1)
r/w Section 6 of DSPE Act, issued by the Department of
Personnel & Training, Government of Indian, New Delhi. It is
alleged that during the period 2014-2015, the proceeds of
cheques worth Rs.2,70,03,32,693/- issued by DLAO, Bhagalpur
for crediting the same in A/c No. 10010100014403, maintained
in the name of DLAO, Bhagalpur, was either not credited in the
said account of DLAO, Bhagalpur or was fraudulently diverted
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in the account of SMVSSL, Bhagalpur. Further alleged that
during the period 2014-15, an amount of Rs. 15,29,17,881/- was
fraudulently siphoned off from A/c No. 10010200000114 and
an amount of Rs. 101555043.30 was fraudulently siphoned off
during the year 2016-17, from A/c Nos. 10010100016113,
10010100016114 and 10010100016162 maintained in the name
of DLAO, Bhagalpur with Bank of Baroda, Bhagalpur. It is
further alleged that during the period 2007-2017, the proceeds
of cheques worth Rs.76,44,35,083.80 issued/received by DLAO,
Bhagalpur for crediting the same in account nos. 6477544592,
6459455501, 730435850 and 6437511585 of DLAO, Bhagalpur
maintained with Indian Bank, Bhagalpur, was either not credited
in these accounts or was fraudulently siphoned off from these
accounts during the said period.
The learned counsel for the petitioner has submitted that
the petitioner has falsely been implicated in this case. He has not
made any transaction in the account of SMVSSL. He joined as
District Land Acquisition Officer, Bhagalpur in the month of
July, 2007 and he was transferred therefrom in the first week of
December, 2008. During his one year of service at Bhagalpur,
he never transferred any amount in the account of above-
mentioned NGO. He has submitted further that in the year 2008,
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the petitioner sent a letter to the Secretary of SMVSSL,
Bhagalpur to close the bank account in his Society and deposit
the entire amount in the government account. The petitioner
kept writing letters to the said NGO, informing the Controlling
Officer for closing the account. He was not charge-sheeted in
the main charge-sheet, but in the supplementary charge-sheet
submitted by the CBI, he was made accused for transferring the
amount in favour of the said NGO. He has also submitted that
this allegation is also false that he is beneficiary of the alleged
transfer of amount of Rs. 1.5 crore mentioned in the
supplementary charge-sheet,but it was not deposited in the
account of the said NGO, rather it was deposited in the account
of District Land Acquisition Officer (hereinafter referred to as
DLAO). He has also submitted that, though the petitioner
admits that a flat was booked in Gayatri Homes, Bhagalpur in
the name of his wife, Mrs. Rita Mishra, but it is not true that the
consideration money of the flat was paid from the money earned
by him through illegal sources. As a matter of fact, he issued
cheques in lieu of consideration money from his salary account
and some cash were also given by him. He has also submitted
that the sale deed of that flat has not been executed up-till-now,
as such, it is not true to say that he is a purchaser of that flat. He
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has also submitted that some accused persons have been granted
anticipatory bail.
On the other hand, Ms. Nivedita Nirvirkar, the learned
Senior counsel for CBI has opposed the prayer for anticipatory
bail and submitted that there are eight bank accounts in the
name of DLAO, Bhagalpur. The petitioner actively participated
in misappropriation of funds from the account of DLAO,
Bhagalpur to the account of SMVSSL in criminal conspiracy
with the officials of Bank of India, Indian Bank, SMVSSL and
other accused persons. She has submitted further that the
petitioner took charge from Smt. Jayshree Thakur, DLAO,
Bhagalpur and he transferred Rs. 1 crore, vide Cheque
No.566349 dated 09.02.2008 from Account No. 730435850 in
Indian Bank, Bhagalpur to the account No. 37 in the name of
SMVSSL without any public interest, just to make available
government funds for the use of Smt. Manorma Devi, Secretary
of SMVSSL. However, previous DLAO, Sri Shiv Nath Kunwar
had transferred all the amounts lying in Account No. 37 in
SMVSSL to Nationalized Bank, as SMVSSL was not a
government bank. The petitioner, Birendra Kumar Mishra had
booked a flat in Gayatri Homes, Bhagalpur in the name of his
wife, Smt. Rita Mishra and made payment in cash while he was
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posted as DLAO, Bhagalpur.
It emerged during the investigation that Birendra Kumar
Mishra, the petitioner, was posted as DLAO, Bhagalpur from
07.08.2007to 12.12.2008 and he actively participated in misappropriation of government funds. He illegally transferred Rs. 1 Crore, vide Cheque No. 566349 dated 09.02.2008 from the Account No. 730435850, Indian Bank, Bhagalpur to the Account No. 37 in the name of SMVSSL, without any public interest. It has also been revealed during the investigation that he had booked a flat no. 404 at his place of posting, i.e. Bhagalpur, in the name of his wife, Smt. Rita Mishra, and most of the consideration money was paid in cash while he was posted there.
In my view, it is not a fit case for anticipatory bail. Accordingly, it is rejected.
(Nawneet Kumar Pandey, J)
Mahesh/Nirmal
AFR/NAFR NAFR
CAV DATE 11.01.2023
Uploading Date 24.02.2023
Transmission Date 24.02.2023