Allahabad High Court
Surendra Kumar Sharma vs Central Bureau Of Investigation, ... on 2 June, 2020
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?In Chamber Case :- BAIL No. - 1722 of 2020 Applicant :- Surendra Kumar Sharma Opposite Party :- Central Bureau Of Investigation, S.C.B., Lucknow Counsel for Applicant :- Pranjal Krishna,Shivam Pandey Counsel for Opposite Party :- A.S.G. Hon'ble Rajeev Singh,J.
Heard Shri Pranjal Krishna, learned counsel for the applicant as well as Shri S.B. Pandey, learned Senior Counsel/Assistant Solicitor General assisted by Mr. Varun Pandey, learned counsel for the C.B.I. through video conferencing and perused the record.
The present bail application has been filed on behalf of the applicant in Case Crime No. RC0532014A0006, under Sections 120B r/w 201, 204, 409, 420, 467, 468, 471 & 477(A) I.P.C. and Sections 13(2) r/w 13(1)(c) & (d) P.C. Act and Section 66 of I.T. Act, 2000, Police Station - CBI/SCB/Lucknow, District - Lucknow with the prayer to enlarge him on bail.
The submission of learned counsel for the applicant is that the applicant is an innocent person and in jail since 18.01.2020. It is further submitted on behalf of the applicant that as per the prosecution case, the present case was registered as RC0532014A0006, under Sections 120B r/w 409, 420, 467, 468, 471 & 477A I.P.C., Sections 13(2) r/w 13(1)(c) & (d) of P.C. Act, 1988 and Section 66 of I.T. Act,2000 byCBI/SCB/Lucknow on 28.08.2014 against Indra Jeet Tiwari, Shailesh Khare, Vinod Kumar Chaudhary, Sunil Tiwari, Anil Jain and Manoj Singhai on the basis of written complaint of Mr. Mahendra Kumar Srivastava (Senior Superintendent of Post Offices, Jhansi Division, Jhansi) with the allegation that the accused persons misappropriated the money by making fake deposit entries and some accounts were opened in applicant's own name as well as in the name of other members, subsequently, they withdrew the money from these account on different dates at different places.
Learned counsel for the applicant further submitted that initially it was alleged that the offence was committed in relation to the 52 Savings Accounts and the fraud amount was of Rs.44,01,800/- but during the course investigation, it was found that Senior Supt. of Post Offices, Jhansi Division, Jhansi has reported some more fraudulent deposits/withdrawal were taken place in 323 SB accounts and the total amount of money included is of Rs.3,07,74,350/-. He further submitted that after investigation, CBI submitted police report/charge sheet dated 30.06.2017 against Indra Jeet Tiwari, Shailesh Kishore Khare, Vinod Kumar Chaudhary, Suneel Kumar Tiwari, Anil Kumar Jain, Manoj Singhai, Awadhesh Kumar Khare, Ashok Kumar Jain, Sukumar Jain, Mayank Sharma, Surendra Kumar Sharma (applicant), Kalu Ram Yadav, Hariom Tripathi and Babu Ram Dohare under Sections 120B r/w 201, 204, 409, 420, 467, 468, 471 & 477(A) I.P.C. and Sections 13(2) r/w 13(1)(c) & (d) P.C. Act and Section 66 of I.T. Act, 2000.
Learned counsel for the applicant further submitted that the applicant co-operated in the investigation and the charge sheet was filed then he was taken into custody. He further submitted that he was working on the post of Postal Assistant but in para No.12 of the charge sheet, averments have been mentioned by the Investigating Officer that Mayank Sharma and the applicant worked as system managers at Lalitpur HPO, during the said period and the duties of system manager is to ensure timely back-up of data and maintenance of Server and all other peripherals (computers, printers, scanners, UPS etc.) and they were under obligations to keep history sheets and stock registers of all the nodes, server, Gen set, stablizer and all other peripheral, ensure keep up of statistical register and other work assigned by postmaster. As it is disclosed in the investigation that both system managers deliberately and fraudulently did not follow the work assigned to them during the said period and the other accused persons took the benefit and mis-appropriated the money from the savings bank accounts, as these fake deposits entries were not reflecting in the system on the same date.
Learned counsel for the applicant further submitted that as per the instructions dated 21/28.07.2004 in relation to the working of computerized post offices (appended as annexure No.5 to the bail application), which clearly reveals that head of the office will ensure proper maintenance of Stock Register. All items of hardware and software available in the office should be entered in the Stock Register and also ensure that history sheets are maintained in respect of all computers, printer, UPS etc and keep it up-to-date. Head of the office will also ensure that later version of the departmental software is being used and also ensure that use of pirate software, unauthorized software, games and unapproved departmental software should not be used, in case, it is found, then he would he held personally responsible in this regard.
Learned counsel for the applicant further submitted that the applicant never worked on the post of system manager for the alleged period as he was the postal assistant and there are no evidences of mis-appropriation of any money by the applicant. He further submitted that departmental proceeding was also initiated against the applicant by issuing departmental charge sheet and he was placed under suspension, but in the fact finding departmental inquiry, inquiry officer observed that neither the applicant was the system manager not he was responsible for not taking the back-up of the data (this fact is mentioned in the para No.12 of the bail application) and the same has not been denied by the CBI in its reply.
Learned counsel for the applicant further submitted that in the counter affidavit wrong description of the order of posting of applicant is mentioned as in the counter affidavit, it is mentioned that the name of applicant came into the light in the statement of Prayag Narayan Verma under Section 161 Cr.P.C. that during the said period applicant was working as PA/System Manager. He further submitted that in the para No.7 of the counter affidavit general allegation has been levelled against Surendra Sharma and Mayank Sharma but specific averments have been made during scrutiny of the order book, in which it was found that Mayank Sharma was ordered by post master to feed the BPL (Below Poverty Lines) acounts in the system using SB data entry module etc. and nothing has been mentioned for the applicant. He further submitted that on para No.11 of the counter affidavit, it has been mentioned that the name of applicant came into the light in the confessional statement of Prayag Narayan Verma and he has also given the details of same orders but during the investigation these facts were not placed by the Investigating Officer on record, which relates to the applicant.
Learned counsel for the applicant further submitted that he does not have any criminal history and there is no allegation in the charge sheet for defrauding/mis-appropriation of the money by the applicant. He further submitted that in para No.122 of the charge sheet, there are specific allegation against Shailesh Kumar Khare, who defrauded the money and invested the same in purchasing 07 properties and he has been granted bail by the court below vide order dated 24.01.2019 in Bail Application No.302 of 2019 (appended as annexure No.6 to the bail application). He further submitted that other co-accused namely Anil Kumar Jain, Manoj Kumar Singhai and Suneel Kumar Tiwari vide orders dated 17.07.2019, 17.07.2019 and 06.02.2020 in Bail Application Nos.10688 of 2018, 10530 of 2018 and 11944 of 2019 respectively. In these circumstances, the applicant is entitled for bail. In case of being enlarged on bail, he will not misuse the liberty of bail.
Learned A.S.G. has opposed the prayer for grant of bail to the applicant and submitted that he was the system manager along with Mayank Sharma and his name came into the light in the confessional statement of Prayag Narayan Verma. He further submitted that it was duty of applicant to ensure timely back-up of data and maintenance of servers and all other peripherals as in the investigation involvement of both the system managers were found by the Investigating Officer that they deliberately/ fraudulently did not follow the work assigned to them during the said period and computer systems were loaded with the unauthorized SB data entry module for data entry work, which was used for fake deposit and deletion of account from the systems but he conceded the fact that the F.I.R. was lodged on 27.05.2016 and the applicant co-operated in the investigation and thereafter, charge sheet was filed then the applicant was taken into custody on 28.01.2020 and he also conceded that other co-accused persons, who defrauded the money have already been granted bail by this Court.
Considering the rival submissions of learned counsel for parties, material available on record as well as totality of fact and circumstances, and without expressing any opinion on the merits of the case, I am of the view that the applicant is entitled to be released on bail.
Let applicant - Surendra Kumar Sharma - be released on bail in aforesaid Case Crime, on his furnishing personal bond to the satisfaction of the court concerned forthwith. Applicant is also directed to furnish two reliable sureties each of the like amount to the satisfaction of the court concerned within two months from the date of lifting of Covid-19 lock-down, subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(4) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(5) The computer generated copy of such order shall be self attested by the counsel of the party concerned.
(6) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
Order Date :- 2.6.2020 S. Shivhare