Allahabad High Court
Ankur Srivastava vs State Of U.P. on 7 December, 2019
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 27 Case :- BAIL No. - 2103 of 2019 Applicant :- Ankur Srivastava Opposite Party :- State of U.P. Counsel for Applicant :- Rajesh Chandra Mishra,Avinash Chandra Counsel for Opposite Party :- G.A.,Aakash Prasad,Amitav Singh,Suyas Manjul Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the record.
It is submitted that information regarding the alleged incident was initially given by the bank of Baroda to the A.G.S. Tansact Technologies Ltd. which is a parent company to the M/s Secure Value India Limited through email and after receiving this information, the informant had inquired from all three accused persons who could not give any satisfactory reply then it was found out after enquiry that a sum of Rs. 35,92,000/- were missing.
As per the prosecution case, the applicant who was the cash loader of Secure Value India Limited in District Bahraich had embezzled along with the co-accused persons and have committed embezzlement from three ATM Machines of the aforesaid company and allegedly Rs. 35,92,000/- has been embezzled and lesser amount has been inserted into the ATM machines. This embezzlement has been done by the accused persons namely Ashish Kumar Jaiswal, Dharmendra Kumar and Ankur Srivastava by tempering the electronic general of the ATM Machine using the admin password and by forging documents and sending the copy of said documents through pen drive to the office of the complainant.
Learned counsel for the applicant submits that the matter is triable by magistrate. The applicant is languishing in jail since 25.10.2018 although the charge sheet in the matter has already been filed on 22.01.2019, however till date even the charge has not been framed in the trial court. He further submits that the alleged recovery memo is false and to which there is no public witness. Although it is a case of the prosecution that the complainant was present at the spot even he has not been made witness of the recovery memo. It is further submitted that the complainant was not a technical person. The entire enquiry as alleged in the F.I.R. has been done by the complainant unilaterally without taking any technical hand and therefore the allegation in the F.I.R. is false as he could not have conducted any enquiry regarding the tempering of the ATM machines. It is further submitted that being the cash loader the applicant was provided the admin password and the same password was with the complainant also, therefore, possibility of alleged withdrawal by the complainant himself cannot be ruled out.
It is further submitted that there is no possibility of the applicant of fleeing away from judicial custody or tampering with the witnesses. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail.
Learned A.G.A. as well as learned counsel for the complainant opposed the prayer for bail but could not dispute the aforesaid facts as argued by the learned counsel for the applicant.
Learned counsel for the applicant at this stage submits that the applicant is ready to give the undertaking that within a period of two months from the date of his release, he shall deposit a sum of Rs. 6,00,000/- before the trial court.
Learned counsel for the complainant has no objection to the said undertaking.
Considering the fact that the matter is triable by magistrate and applicant is languishing in jail for last one year even then charge has not been framed by the trial court and the undertaking given by the applicant and also considering the nature of allegations, arguments advanced by learned counsel for the parties for the period for which he is in jail and without expressing any opinion on the merits of the case, I find it to be a fit case for enlarging the applicant on bail.
Let the applicant, Ankur Srivastava, involved in Case Crime/F.I.R. No. 10/2018, under Sections 379/409/467/468/471/411/420 I.P.C. and Section 43-A and 66 of Information Technology (Amendment) Act, 2008, Police Station - Cyber Crime, District - Lucknow, 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 with the following conditions which are being imposed in the interest of justice:-
(i) The applicant will not tamper with the evidence during the trial.
(ii) The applicant will not pressurize/ intimidate the prosecution witness.
(iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(vi) 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. is issued and the 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 of the Indian Penal Code.
(vii) The applicant shall deposit a sum of Rs. 6,00,000/- before the trial court within two months from his release from jail.
Order Date :- 7.12.2019 R.C.