Allahabad High Court
Ajay Gupta vs State Of U.P. Thru. Prin. Secy. Home ... on 9 November, 2022
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1856 of 2022 Applicant :- Ajay Gupta Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. And Another Counsel for Applicant :- Salil Kumar Srivastava,Rahul Srivastava Counsel for Opposite Party :- G.A.,Sarvesh Kumar Dubey Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate for the State of U.P., learned counsel appearing on behalf of first informant and perused the record.
This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicant after rejecting his anticipatory bail application by the order dated 17.10.2022 passed by learned Sessions Judge, Lucknow, seeking Anticipatory Bail in Case Crime No. 460 of 2022, under Sections 420, 406, 120-B, 467, 468, 471, 506 IPC, Police Station Gomti Nagar, District Lucknow.
It is argued by learned counsel for the applicant that informant/complainant Amit Kumar Singh is running two petrol pumps in the names and styles of Sri Filling Station situated at Transport Nagar, Kanpur Road, Lucknow and Gomti Nagar, Husariya Crossing, Lucknow, respectively. The applicant Ajay Gupta was engaged as Part-time Typist / Data Entry Operator to work for two days in a week on both the aforesaid filling stations of the complainant for the purpose of feeding data in respect of preparation of balance-sheet and maintaining ledger for the purpose of filing income tax return to be finalized by the chartered accountant of the complainant and he was paid Rs. 12,500/- per month towards his salary. It is next submitted that dispute in this case arose with the allegation of making wrong entries in the ledger book and it is the case of the prosecution inter alia that accused persons of this case adopting different modus operandi, taking the benefit of wrong entry, embezzled huge amount of the complainant. In this regard, it is submitted by learned counsel for the applicant that on 16.03.2022, first information report was lodged by opposite party no. 2 as Case Crime No. 133 of 2022 for the alleged offence under Sections 420, 406, 120-B, 467, 468, 471, 506 IPC after five years against Lal Bahadur Yadav, Manoj Yadav and present applicant Ajay Gupta regarding the entries made by the applicant between 22.01.2017 to 04.11.2018, in which charge-sheet was submitted on 02.08.2022 only against co-accused Lal Bahadur Yadav and Manoj Yadav. Thereafter, they have surrendered and are presently languishing in jail. So far as present applicant Ajay Gupta is concerned, it is pointed out that no charge-sheet was submitted against him as no material evidence was found and the investigation against him is still going on. It is also argued that except making entries in the ledger of the filling stations concerned, the applicant was not involved with regard to embezzlement of any money and has no concern with the alleged transactions. So far as this case is concerned, it is argued that the first information report of this case was lodged on 06.07.2022 as Case Crime No. 460 of 2022 for the alleged offence under Sections 406, 420, 467, 468, 471, 120-B, 506 IPC against the same accused persons, namely, Lal Bahadur Yadav, Manoj Yadav and present applicant Ajay Gupta at Police Station Gomti Nagar, District Lucknow with regard to entries made by the applicant during the period from 14.04.2018 to 04.11.2018 and on 15.02.2019 in which investigation is also pending. Much emphasis has been given by contending that in the present case till date, no material evidence has been collected by the Investigating Officer with regard to involvement of the applicant relating to embezzlement of any amount. On the strength of aforesaid facts, it is argued that the case of the present applicant Ajay Gupta stands on different footing to that of co-accused Lal Bahadur Yadav and Manoj Yadav. Placing reliance upon the judgments of the Apex Court in the cases of T.T. Antony Vs. State of Kerala, (2001) 6 SCC 181; Upkar Singh Vs. Ved Prakash and others, (2004) 13 SCC 292; and Prem Chand Singh Vs. State of U.P. and another, (2020) 1 SCC (Crl.) 740, it is submitted that it is well settled that second first information report on same set of facts with some additional material is not maintainable. It is also pointed out that earlier in aforesaid Case Crime No. 133 of 2022, the applicant had moved Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 680 of 2022 which was disposed of vide order dated 12.05.2022 considering the submission of learned counsel for the applicant that the applicant does not want to press the same with the direction to the applicant to file regular bail application before the concerned Court below but he did not apply for bail, because in Case Crime No. 133 of 2022, charge-sheet dated 02.08.2022 was not submitted against him. So far as present case being Case Crime No. 460 of 2022 is concerned, this is the first anticipatory bail application of the applicant. It is also submitted that the applicant has no criminal history to his credit. Pursuant to F.I.R. of this case, the applicant has apprehension of imminent arrest. Lastly, it is submitted that in case, applicant is granted anticipatory bail, he would not misuse the liberty and will co-operate with the investigation of this case.
On the other hand, learned Additional Government Advocate for the State of U.P. and learned counsel for the complainant vehemently opposed the prayer for granting anticipatory bail to the applicant by contending that the applicant worked as Part Time Data Entry Operator (Typist) but he had not made wrong entry in computer and ledger/cash book. It is also argued that the applicant was main instrumental to cause irreparable loss and injury to the complainant. As on date there is no material on record to presume the false implication of the applicant. Investigation of this case is going on. Considering the prosecution case, offence is made out against the applicant.
Having heard the learned counsel for the parties, I find that in the first F.I.R. of Case Crime No. 133 of 2022, charge-sheet was submitted on 02.08.2022 against two other persons, namely, Lal Bahadur Yadav and Manoj Yadav and with regard to the applicant, the investigation is pending. In the present case also, investigation is pending and till date, no material evidence has been collected by the Investigating Officer regarding the embezzlement of any amount on the part of the applicant. There is no dispute between the parties concerned that the applicant was part-time typist/data entry operator and he was engaged to make entries in the ledger /cash book, computer, etc. for two days in a week. First F.I.R. of Case Crime No. 133 of 2022 was lodged after five years. The case of the applicant is distinguishable with the case of co-accused of this case. Considering the facts of the case and the undertaking given on behalf of the applicant that he shall appear before the investigating officer as and when he will be called for the purpose of interrogation, this Court feels that the applicant has made out a case for granting anticipatory bail during investigation.
In the event of arrest of the applicant - Ajay Gupta involved in the aforesaid case shall be released on anticipatory bail on his furnishing a personal bond of Rs.25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned till submission of police report, if any, under Section 173(2) Cr.P.C. with the following conditions :-
i) The applicant shall make himself available for interrogation by a police officer / investigating officer as and when required.
ii) 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.
iii)The applicant shall not leave India without the previous permission of the Court.
iv) In default of any of the conditions mentioned above or in case it is found that applicant has obtained this order concealing any material facts, the investigating officer shall be at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
It is clarified that observations made in this order at this stage is limited for the purpose of determination of this anticipatory bail application only and will in no way be construed as an expression on the merits of the case. The investigating officer of this case shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials/evidences on record.
With the aforesaid observations and directions, this anticipatory bail application is allowed.
Order Date :- 9.11.2022 Shubham