Allahabad High Court
Vivek Kumar vs C.B.I on 28 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19139 of 2023 Applicant :- Vivek Kumar Opposite Party :- C.B.I Counsel for Applicant :- Rajiv Lochan Shukla,Marjeet Mishra,Yogesh Narayan Shukla Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Rajeev Misra,J.
1. Heard Mr. Rajiv Lochan Shukla, Advocate alongwith Mr. Marjeet Mishra, the learned counsel for applicant and Mr. Gyan Prakash, Senior Advocate, Deputy Solicitor General of India assisted by Mr. Sanjay Kumar Yadav, the learned counsel representing opposite party-1 i.e. C.B.I.
2. Perused the record.
3. This application for bail has been filed by applicant-Vivek Kumar in connection with F.I.R. No. RCC No. 1202018A0008 of 2018, dated 25.10.2018 under sections 409, 420, 468, 471, 120B I.P.C. and Sections 13(1) C, 13(1) (d) Prevention of Corruption Act, 1988, Police Station C.B.I./ACB, District-Ghaziabad, during the pendency of trial.
4 Record shows that an F.I.R. dated 25.10.2018 was lodged by first informant namely C.B.I., which was registered as F.I.R. No. 1202018A0008 of 2018, dated 25.10.2018 under sections 120B, 409, 420, 467, 468, 471, 120B I.P.C. and Sections 13(2) r/w, 13(1) (a) Prevention of Corruption Act, 1988, Police Station C.B.I./ACB, District-Ghaziabad. In the aforesaid F.I.R. two persons namely, Robin Bansal and Vivek Kumar (applicant herein) have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R is to the effect that named accused by playing fraud and forgery have misappropriated bank money and thereby caused loss to the Bank to the tune of Rs. 473.96 Lakhs.
6. After registration of aforesaid E.I.R, Investigating Officer proceeded with statutory investigation of aforementioned F.I.R. in terms of Chapter XII Cr.P.C. He examined first informant and other witnesses under Sections 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of other named accused is also established in the crime in question. Accordingly he opined to submit the charge-sheet against named accused as well as not named accused. Resultantly, he submitted police report (charge sheet) dated 13.11.2021 under section 173(2) Cr.P.C. whereby and where-under named accused Robin Bansal and Vivek Kumar (applicant herein) have been charge-sheeted. Subsequently, Investigating Officer submitted supplementary charge sheet dated 31.12.2021, whereby 13 persons not named in the F.I.R. have been charge sheeted.
7. Learned counsel for applicant submits that in the interregnum, the applicant, who is an employee of Indian Overseas Bank, Which is a Private Sector Bank, departmental proceedings were initiated against applicant. However, in the departmental proceedings no substantial evidence was found against applicant. Resultantly, Enquiry Officer submitted the enquiry report dated 09.10.2018. On the basis of aforesaid enquiry report, the applicant was awarded minor punishment, whereby three increments of applicant were stopped for a period of 2 years.
8. On the above premise, the learned counsel for applicant submits that in view of above, it can be said that applicant is guilty of having committed an economic offence, which is punishable under any of the charging sections. He also submits that applicant is an employee of the Bank. He is in custody since 21.02.2023. As the charge sheet have been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant stands crystallised. There is no such circumstance warranting custodial arrest of applicant during the pendency of trial. The role of the applicant, ifany in the crime in question is of a limited nature. At this stage, it can be conclusively concluded that appliant is guilty of misappropriating public money. The main role has been assinged to co-accused Robin Bansal. Moreover, complicity is a closed door affair and therefore, same is subject to trial evidence. He therefore submits that applicant is liable to be enlarged on bail. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial.
9. Mr. Gyan Prakash, the Deputy Solicitor General of India assisted by Mr. Sanjay Kumar Yadav, the learned counsel representing opposite party-1 i.e. C.B.I. has vehemently opposed this application for bail. He submits that since the applicant is a charge-sheeted accused, therefore, applicant does not deserve any indulgence by this Court. It is next contended that applicant is guilty of committing an economic offence. The parameters for granting bail in respect of economic offence are far more stringent than the parameters for grant of bail for an offence under common criminal law. Since the applicant is guilty of committing an economic offence and he has also been charge-sheeted under the Prevention of Corruption Act, therefore, the bail application of applicant is liable to the rejected. In case the applicant is enlarged on bail, he shall hamper the trial proceedings. He has then invited the attention of Court to the order dated 14.02.2023 passed in Criminal Misc. Anticipatory Bail Application U/S 438 Cr/P.C. No. 429 of 2023 (Vivek Kumar Vs. C.B.I.). For ready reference, the same is reproduced herein-uncer:
"1. Heard learned counsel for the applicant, Sri Gyan Prakash Srivastava, learned Deputy Solicitor General/ Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the CBI and perused the record.
2. The present application under Section 438 Cr.P.C. has been filed by the applicant seeking bail in anticipation of his arrest in Special Case No. 1 of 2022, arising out of Case Crime No.R.C. 1202018A0008, under Sections 409, 420, 468, 471, 120B IPC and Section 13(2), 13(1)(C), 13(1)(D) of Prevention of Corruption Act, Police Station-C.B.I./ A.C.B., Ghaziabad.
3. On complaint of General Manager, Indian Overseas Bank, Regional Branch, Meerut, CBI registered an FIR as R.C. No. 1202018A0008 at CBI/ACB, Ghaziabad. The allegation and the FIR are that Robin Bansal, Assistant Manager is Bantikhera, Shamli, U.P. has sanctioned 14 demand loans for amount of Rs.331.27, 6 saving accounts for Rs.19.26 lakh, six KCC loan for amount of Rs.15.89 lakh and 24 Mudra loan for amount of Rs.37.44 lakh total amount of Rs.4,77,00,000/-. These amounts were deposited by Robin Bansal in his own account. Thereafter, the entire amount was transferred in the account of M/s India Infoline Ltd., Yes Bank, Mumbai for investment in equities and commodities. The accused applicant was also Assistant Manager of the Overseas Bank along with Robin Bansal. His user ID was used and some accused applicant had accessed the said accounts by using of login user ID and some accounts were allegedly verified by him. There are 17 mudra loan accounts were opened which were accepted and transactions were verified by the accused applicant. There are 8 KCC saving accounts and which were similarly accessed and transactions were verified by the accused applicant. Some transactions are in the bank account of the brother of the accused applicant in which money got transferred from the fraudulent account opened in the Bank allegedly by Robin Bansal.
4. Learned counsel for the accused applicant submits that he was the person who informed the higher authority regarding fraud having been been committed by Robin Bansal on which inquiry was held and FIR came to be registered. He also submits that entire amount which was transferred in his account and his brother's account had been returned to the Bank. Charge sheet has already been filed and therefore there is no purpose would be served in keeping the applicant in custody as he is not in a position to influence to any witnesses or tempering with the evidence. Therefore, he submits that the accused applicant may be enlarged on bail.
5. Sri Gyan Prakash Srivastava, Deputy Solicitor General/ Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the CBI submits that involvement of the accused applicant has been fully established during the course of investigation and there is sufficient evidence against the applicant regarding involvement in commission of offence along with other co-accused. He further submits that merely on the ground that the accused applicant has not been visited major penalty in departmental proceedings and he has been awarded minor punishment withholding three increments for two years. Accused applicant is said to be involved in commission of crime and CBI has collected sufficient evidence against him. In view thereof, looking at the allegation against the accused applicant and the evidence collected during the course of investigation, the case of the accused applicant does not fall within the parameter of Section 438 Cr.P.C. and therefore application of the accused applicant may be dismissed.
6. I have considered the submissions advanced by learned counsel for the parties.
7. The allegation against the accused applicant is that he in connivance with Robin Bansal and other co-accused had misappropriated the bank money to the extent of Rs.4.77 crore. Whether it was accused applicant who used the user ID or allowed the co-accused to use his user ID is question of fact. However looking at the allegations and financial and banking fraud by allegedly none other than the accused and Robin Bansal who were the Assistant Manager of the bank and were trustees of the bank fund, who allegedly had committed financial fraud, this court does not find that the case of the accused applicant falls within the parameter of Section 438 Cr.P.C.. Therefore, the bail application is rejected.
8. However, it is provided that if the accused-applicant surrenders before the court concerned within 10 days from today and applies for regular bail, his bail application shall be considered expeditiously, in accordance with law, keeping in mind the accused applicant has been visited with minor penalty in departmental proceedings and he is serving in the Bank as well as charge sheet has already been filed.
Order Date :- 14.2.2023 "
10. On the above premise, he submits that same submissions that have been urged in support of present application were also urged before this Court at the time of consideration of aforementioned anticipatory bail application but they did not favour with the Court. He therefore submits that in view of similar situation, no indulgence be granted by this Court in favour of applicant.
11. In rejoinder Mr. Rajiv Lochan Shukla, the learned counsel for applicant contends that anticipatory bail is granted on the premise that there exists an exceptional circumstance whereas all other grounds available to an accused can be considered at the time considering the bail application. The order dated 14.02.2023 passed by this Court rejecting the anticipatory bail application of applicant, cannot be construed as res-judicata or estoppel against applicant.
12 Having heard Mr. Rajiv Lochan Shukla, alongwith Mr. Marjeet Mishra, the learned counsel for applicant and Mr. Gyan Prakash, Senior Advocate, Deputy Solicitor General of India assisted by Mr. Sanjay Kumar Yadav, the learned counsel representing opposite party-1 i.e. C.B.I., upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that the charge-sheet has already been submitted against applicant, as such evidence sought to be relied upon by the prosecution against applicant stands synchronised, there is no such exceptional circumstance on the basis of which it can be said that custodial arrest of applicant is absolutely necessary during the course of trial, in the departmental proceedings initiated against applicant in respect of same charge, only minor punishment of stopping three increments for a period of two years has been imposed against applicant, the main role has been assigned to co-accused Robin Bansal, the role of applicant if any is of a limited nature, conspiracy is a closed door affair and thus subject to trial evidence, applicant being a man of clean antecedents inasmuch he has not criminal history to his credit except the present one but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
13. Accordingly, present application for bail is allowed.
14. Let the applicant-Vivek Kumar involved in aforesaid case crime number be released on bail on furnishing a personal bond and two sureties 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) Applicant will not tamper with prosecution evidence.
(ii) 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) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
15. 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 of applicant and send him to prison Order Date :- 28.4.2023 YK