Mukesh Kumar vs The State Of Bihar on 2 September, 2015

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Patna High Court - Orders

Mukesh Kumar vs The State Of Bihar on 2 September, 2015

The petitioner apprehending his arrest in respect of allegation for the offences punishable under Sections- 419, 420, 467, 468 and 471 of the Indian Penal Code had come out with a defence that the sole allegation of misappropriation of the Government fund against him was based on non est and non existent materials.

This Court on 14.05.2015, in fact having noticed the submission to the aforesaid effect had passed an order directing the Additional Collector, Gaya, the informant and the Superintendent of Anugrah Narayan Patna High Court Cr.Misc. No.51096 of 2014 (7) dt.02-09-2015 2 Medical College Hospital, Gaya to explain as to how much amount was drawn by the petitioner beyond what he was capable to get as per the terms and conditions of the contract in relation to outsourcing of the services for maintaining computers in the Anugrah Narayan Medical College Hospital, Gaya. The Superintendent of Anugrah Narayan Medical College Hospital, Gaya having appeared had sought to explain that though there was no direct evidence to connect the petitioner with the allegation of misappropriation or having over drawn in excess the amount, but then some of the bills submitted by the petitioner were found to be inflated and were accordingly not passed by taking into account the actual state of affairs. In such circumstances, this Court had passed a reasoned order on 22.07.2015, which becomes relevant and is quoted hereinbelow:-

"Today, when the case has been taken up, Mr. Sudhir Kumar Sinha, Superintendent of Anugrah Narayan Medical College, Gaya (hereinafter referred to as 'the Medical College') has appeared in person and has sought to support the averment made by him in his counter affidavit. He explains that the petitioner had an agreement for the period of five years from May, 2011 but then he has stopped working since 14.09.2012. He has also submitted that the payment to the petitioner and the firm, being the out source agency, was made for the period of May 2011 to February, 2012 and no further payment has been made for the period March 2012 to Patna High Court Cr.Misc. No.51096 of 2014 (7) dt.02-09-2015 3 14.09.2012. He has also, on the basis of records available with him, disclosed the figure of the number of workers for whom the bill, on scrutiny, was passed. According to him, the number of workers for which bills were passed were as follows:

                                         May, 2011         -25 October, 2011 -27
                                         June, 2011        -25 November, 2011 -27
                                         July, 2011        -26 December, 2011 - 27
                                         August,2011       -20 January, 2011        -
                                                                 27
                                         September, 2011 -23 February, 2012         -
                                                                 27

2. He has, in fact, also clarified that though there are 33 computers installed in the Medical College, which were to be operated in different shifts with the assistance of 40 data operators round the clock at the total cost of Rs. 2,36,00/- per month, but then no loss has been caused to the Government because even if inflated bills were submitted by the petitioner as with regard to total number of data operators engaged by it, the payment was restricted to the number of data operators, as indicated above.

3. From the relevant portion of the F.I.R., it further transpires that Mr. Uday Kumar, Additional Collector (Special), Gaya, the informant, had alleged as follows:

^^tkap izfrosnu dh Nk;k izfr layXu djrs gq, dguk gS fd bl vLirky ds fofHkUu foHkkxksa esa vkmVlksflZxa ds vk/kkj ij vkj0 th0 ,l ,tsUlh }kjk dqy 40 dEI;wVj vkWijsVjksa dh izfrfu;qfDr dh x;h gS ysfdu tkap ds fnu ek= 17 dEI;wVj vkWijsVj mifLFkr ik;s x;sA tkap dh frfFk vFkkZr fnukad 03-03-2012 dks dEI;wVj vkWijsVjksa dh mifLFkfr iath dh Hkh tkap dh x;h ¼Nk;kizfr layXu½ ftleas dqy 25 dEI;wVj vkWijsVjksa dh mifLFkfr ntZ ik;h x;h gSaA izfrekg dqy 40 dEI;wVj vkWijsVjksa dks fu/kkZfjr nj ij ekuns; dk Hkqxrku fd;k tk jgk gSA bl rjg ls vkmVlksflZax ,tsl a h }kjk izfrfu;qDr dqy dEI;wvj vkWijsVjksa dh la[;k] okLrfod :i ls dk;Zjr ik;s x;s dEI;wVj vkWijsVjksa dh la[;k ,oa ekuns; dk Hkqxrku fd;s tk jgs dqy dEI;wVj vkWijsVjksa dh la[;k esa dkQh fHkUurk gS tks wrongful Loss ,oa vf/kdkbZ O;; dk izrhd gSA**

4. As would be apparent from the above, a complete conflicting stand has now been taken by the Superintendent of the Medical College, Gaya as against the allegation made by the Additional Collector in the F.I.R. based on his enquiry report.

5. This Court would accordingly, direct now Mr. Uday Kumar, Additional Collector (Special), Gaya to file his affidavit as to on what basis he has come out to make an allegation that there was a loss to the Government on account of payment made to the petitioner and his company.

6. Learned counsel for the State prays for and is allowed three weeks time for enabling her to file affidavit by Mr. Uday Kumar, Additional Collector (Special), Gaya. Such counter affidavit before being filed, this Court shall be vetted Patna High Court Cr.Misc. No.51096 of 2014 (7) dt.02-09-2015 4 by the Commissioner of Magadh Division and the Collector of Gaya District under whose joint order dated 12.03.2012 the F.I.R. was filed against the petitioner.

7. It may be also open for the Superintendent of Anugrah Narayan Medical College, Gaya to file his supplementary counter affidavit clarifying the aspects which has been discussed today or any other matter related to the petitioner.

8. Put up this case on 12.08.2015 when not only the Superintendent of Anugrah Narayan Medical College, Gaya with his records but also Mr. Uday Kumar, Additional Collector (Special), Gaya shall remain present in person.

9. The interim protection given to the petitioner shall accordingly also stand extended till 12.08.2015."

Pursuant to the aforementioned order, Mr. Uday Kumar, the informant, who was at that point of time Additional Collector of Gaya district has also appeared before this Court and has filed his affidavit, wherein, he sticks to his stand taken in the FIR by explaining that on the date, on which, he had held the inspection of the Anugrah Narayan Medical College Hospital, Gaya, he had found only 17 staff of the petitioner to be working whereas the bill for that day also was submitted by the petitioner showing to have engaged 25 persons. On this basis, Mr. Uday Kumar, is of the view that whatever was said by him in the FIR was based on his actual spot verification and therefore, offence alleged in the FIR was prima facie made out against the petitioner. Patna High Court Cr.Misc. No.51096 of 2014 (7) dt.02-09-2015 5

The Superintendent of Anugrah Narayan Medical College Hospital, Gaya, however as noted above had already clarified this aspect in his affidavit and the same has also been reiterated today that the bill for that particular month in which the inspection was held by the Additional Collector, Gaya has not been cleared/ passed/paid to the petitioner and in fact some of the bills of the petitioner are still pending for its being processed and passed.

In that view of the matter, this Court would prima facie find that the allegations of defalcation or misappropriation of Government fund levelled against the petitioner has not been substantiated as on date and thus the aspect as to can be alleged that whether the petitioner was submitting false bill or whether the petitioner was trying to extract some more money, beyond, he was entitled as the per the terms and conditions of the contract is a matter which can still be gone into at the stage of trial. For the moment, this Court would find that the petitioner does make out a prima Patna High Court Cr.Misc. No.51096 of 2014 (7) dt.02-09-2015 6 facie case for grant of privilege of anticipatory bail.

That being so, the earlier provisional bail granted to the petitioner by order dated 14.05.2015, is hereby confirmed. The amount of Rs. 75000/- which was deposited by the petitioner shall remain subject to the outcome of the pending trial against the petitioner and in fact if the petitioner is acquitted of the charge, the amount of Rs. 75,000/- shall be refunded to the petitioner.

With the aforesaid observations and directions this application is disposed of.

The personal appearance of Mr. Uday Kumar, Retired Additional Collector of Gaya District and Mr. Sudhir Kumar Sinha, Superintendent of Anugrah Narayan Medical College Hospital, Gaya is also dispensed with.

(Mihir Kumar Jha, J) Ranjan/-

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Patna High Court - Orders