Allahabad High Court
Rajeev Kumar vs State Of U,P, Thru. C.B.I. Lko. And ... on 2 August, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:50996 Court No. - 16 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 593 of 2023 Applicant :- Rajeev Kumar Opposite Party :- State Of U,P, Thru. C.B.I. Lko. And Another Counsel for Applicant :- Sharad Nandan Ojha Counsel for Opposite Party :- Anurag Kumar Singh Hon'ble Subhash Vidyarthi,J.
1. On 02.03.2023, after hearing the learned counsel for the applicant and the learned counsel for the respondent-CBI, this Court had passed the following interim order -
"Heard Sri Sujeet Kumar along with Sri Sharad Nandan Ojha and Ms. Chhaya Gupta, learned counsel for the applicant and Sri Anurag Kumar Singh, learned counsel for the CBI.
Sri Anurag Kumar Singh, learned counsel for the CBI prays for and is granted four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within a period of two weeks.
List this case in the week commencing 17.04.2023 as fresh.
Sri Sujeet Kumar, learned counsel for the applicant, has pressed this anticipatory bail application of the present applicant by submitting that the present applicant is apprehending his arrest in Criminal Case No.898 of 2022 (C.B.I. Vs. Ranjeet Singh & Others) arising out of Crime No.RC0532018S0001, under Sections 120-B r/w 420, 467, 468, 471 of IPC and Sections 13 (2) r/w 13 (1) (d) of Prevention of Corruption Act, 1988, Police Station - CBI/SCB, Lucknow.
As per learned counsel for the applicant, the present applicant is at present Assistant Manager in State Bank of India. M/s Shivang Carpets Pvt. Ltd. (hereinafter referred to as "Company") had taken loan from the Bank in the name of State Bank of Bikaner and Jaipur (now said Bank has been merged into the State Bank of India) to the tune of Rs.80 lakh. However, as soon as the Bank from which the loan was taken was merged into the State Bank of India, later on, a FIR has been lodged against the Company and the matter was directed to be investigated by the CBI. The CBI lodged an FIR on 12.02.2018 and called the present applicant to participate in the investigation proceedings. Admittedly, the applicant participated in the investigation proceedings properly and on 30.09.2021, the CBI has filed charge sheet before the learned trial court concerned and learned trial court has taken cognizance on 12.12.2022 summoning the present applicant.
The learned counsel for the applicant further submitted that in the charge sheet the role which has been assigned to the applicant was recorded as follows:-
(viii) Investigating revealed that Sri Rajeev Kumar was posted Deputy Manager/Forex Officer from as 1.10.2015 to 5.8.2017 (till merger of the Branch with SBI, commercial branch and main branch). Forex Department/Accounts of the said branch (eSBBJ) was being looked after by him during 1.10.2015 to 5.8.2017. He had dealt all 19 export bills and on his recommendation bills were negotiated by the Bank. He failed to perform due diligence on his part while dealing with documents and photocopy documents were negotiated. set of It is also pertinent to mention here that a departmental enquiry was also conducted against the applicant and the applicant after the enquiry has been exonerated, except a penalty of reduction in rank, because the applicant was not able to perform due diligence and for lapses, but the applicant was never suspended and he is performing the duty of the Bank regularly without any break and at present the applicant is posted as Assistant Manager in Regional Business Office, State Bank of India, Karanjora, Raiganj, District North Dinajpur, West Bengal.
The Bank has found applicant suitable for his duty despite charges and after enquiry penalty has been imposed, but the services of the applicant are not terminated and the applicant is working regularly in the Bank and there is no chance that he will abscond anywhere.
There is no allegation of financial embezzlement has been leveled against the applicant and no recovery of any kind has been made from the applicant.
Sri Sujeet Kumar has tried to demonstrate that the allegations so levelled by the Bank against the present applicant are in contradiction of the charge sheet so filed against the present applicant by the CBI and on that, some further investigation is required. As per the material of the charge sheet so filed by the CBI, at least the present applicant is not forger of the forged bill. Therefore, Sri Sujeet Kumar has placed reliance upon the dictum of the Apex Court in re; Sheila Sebastian Vs. R. Jawaharaj and Another, (2018) 7 SCC 581, referring paras 19, 20 & 25 to submit that the Hon'ble Apex Court has held that a charge of forgery cannot be imposed on a person, who is not the maker of the same. Paras 19, 20 & 25 in re; Sheila Sebastian (supra) are as under:-
"19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence of forgery under Section 463 IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e. making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and until ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete.
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 IPC. As Collin, J., puts it precisely in Dickins v. Gill [Dickins v. Gill, (1896) 2 QB 310 (DC)] , a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
25. Keeping in view the strict interpretation of penal statute i.e. referring to rule of interpretation wherein natural inferences are preferred, we observe that a charge of forgery cannot be imposed on a person who is not the maker of the same. As held in plethora of cases, making of a document is different than causing it to be made. As Explanation 2 to Section 464 further clarifies that, for constituting an offence under Section 464 it is imperative that a false document is made and the accused person is the maker of the same, otherwise the accused person is not liable for the offence of forgery."
Learned counsel for the applicant has submitted that since the present applicant has not been declared as maker of the forged bill, therefore, he may not be implicated for the forgery in any manner whatsoever. He has also submitted that since the present applicant has not flouted the process of law and has cooperated in the investigation and the charge sheet has been filed, therefore, only for the reason that the charge sheet has been filed, the present applicant may not be taken into custody in view of the dictum of the Apex Court in re; Aman Preet Singh vs. C.B.I. through Director, Criminal Appeal No.929 of 2021. He has further submitted that if the allegations are further investigated by the CBI, the applicant shall cooperate in such further investigation and if pursuant to the charge sheet, trial commences, he shall cooperate in the trial proceedings in the same manner as he has cooperated in the investigation, therefore, liberty of the present applicant may be protected till conclusion of the proceedings.
Sri Anurag Kumar Singh, learned counsel for the CBI, has stated that since the CBI is willing to further investigate the issue, therefore, at this stage, the present applicant may not take benefit of the dictum of Apex Court in re; Sheila Sebastian (supra). He has also submitted that on the basis of complaint filed by the Bank and also on the basis of material available on record, culpability of the present applicant in the present case has been surfaced, therefore, he is not entitled for anticipatory bail. However, he shall bring on record all relevant documents and evidences to convince the Court that the present applicant is liable to be prosecuted in the offence in question.
Be that as it may, since the present applicant has participated in the investigation w.e.f. 12.02.2018 till filing of charge sheet on 30.09.2021 and has not avoided the process of law and he is still giving his undertaking that he shall participate in the further investigation, if it takes place and if the trial commences, he shall participate in the trial proceedings and shall not misuse the liberty of anticipatory bail, I find it appropriate that liberty of the present applicant may be protected till the next date of listing in view of the dictum of the Apex Court in re; Sushila Aggarwal vs. State (NCT of Delhi), 2020 SCC Online SC 98.
Therefore, till the next date of listing, it is directed that in the event of arrest/ appearance before the trial court, applicant- Rajeev Kumar shall be released on interim anticipatory bail in the aforesaid crime case on his furnishing a personal bond of Rs.1,00,000/- with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-
1. that the applicant shall make himself available for interrogation by a police officer as and when required;
2. that 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;
3. that the applicant shall not leave India without the previous permission of the court;
4. that the applicant shall not pressurize/ intimidate the prosecution witness;
5. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted."
2. Although a counter affidavit has been filed on behalf of the respondent-CBI, nothing has come to light which may persuade this Court to take a view, different from the view taken while passing the aforesaid order, nor the learned counsel for the respondent-CBI has pointed out violation of any of the conditions of interim anticipatory bail committed by the applicant.
3. In view of the aforesaid circumstances, the interim order dated 02.03.2023 is hereby made absolute and the application is allowed in terms of the aforesaid order.
Order Date :- 2.8.2023 Pradeep/-