Allahabad High Court
Bhikhari Singh vs State Of U.P. on 18 August, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 91 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16787 of 2022 Applicant :- Bhikhari Singh Opposite Party :- State of U.P. Counsel for Applicant :- Abhinav Gaur, Ankit Shukla, Mohd. Rashid Siddiqui, Sr. Advocate Counsel for Opposite Party :- Sanjay Kumar Yadav with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15136 of 2022 Applicant :- Vinod Singh Opposite Party :- State of U.P. and Another Counsel for Applicant :- Raghav Dev Garg, Sr. Advocate Counsel for Opposite Party :- G.A., Sanjay Kumar Yadav Hon'ble Samit Gopal, J.
1. These two bail applications are connected together as they arise out of same case crime number and thus are being decided together by a common order.
2. Supplementary counter affidavits dated 15.08.2022 filed by the C.B.I. in both the matters are taken on record.
3. Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Ankit Shukla, Advocate appearing on behalf of the applicant- Bhikhari Singh, Sri Nandit Srivastava, learned Senior Advocate assisted by Sri Raghav Dev Garg, Advocate appearing on behalf of the applicant- Vinod Singh, Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, Advocate learned counsels for the C.B.I. in both the matters and perused the records.
4. These bail applications under Section 439 of Code of Criminal Procedure have been filed by the applicants- Bhikhari Singh and Vinod Singh, seeking enlargement on bail during trial in connection with Special Case No. 07 of 2020, R.C. No. 1202015A0008, under Sections 120-B, 420, 409, 201 I.P.C., registered at Police Station C.B.I., AC.B, Ghaziabad, District Ghaziabad.
5. The matter started with the filing of a writ petition being Misc. Bench No. 12802 of 2011 (Sachchidanand Gupta (Sachchey) Vs. Union of India Through Secy., Ministry of Rural Development & Others) before the Lucknow Bench of this Court under Article 226 of the Constitution of India relating to misappropriation of funds allotted to different districts of the State of Uttar Pradesh by the Central Government under the MGNREGA Act, 2005.
6. A Division Bench of this Court on 31.01.2014 while allowing the writ petition passed its judgment and order, the operative portion of which is extracted herein below:-
"ORDER In view of above, we allow the writ petition with following order :
(I) A writ in the nature of mandamus is issued directing the Central Bureau of Investigation to investigate the abuse and misappropriation of fund as well as the abuse of power under Mahatma Gandhi National Rural Guarantee Scheme with regard to seven districts of State of U.P, namely Balrampur, Gonda, Mahoba, Sonbhadra, Sant Kabir Nagar, Mirzapur and Kushinagar in the years 2007 to 2010 with appropriate action and prosecution in accordance with law.
(II) A further writ in the nature of mandamus is issued directing the Central Bureau of Investigation to hold a preliminary enquiry under Chapter IX of CBI Manual with regard to other districts of the State of U.P for the aforesaid three years relating to abuse, misuse or misappropriation of fund provided by the Government of India under Mahatma Gandhi National Rural Guarantee Scheme(supra) with follow-up regular enquiry, if required.
(III) The State Government is further directed to provide all necessary assistance including manpower to CBI within a month from the date of receipt of request to proceed for investigation in pursuance to the present judgment.
(IV) A writ in the nature of mandamus is issued directing the State Government to consider for establishment of multi-member State Quality Monitor at district and State level to supervise utilisation of fund under Mahatma Gandhi National Rural Guarantee Scheme till the Government of India frames appropriate rules, regulations or issue appropriate order keeping in view the observation made in the body of judgment.
The CBI shall submit status report to this Court at the interval of every three months with regard to investigation done in pursuance to the present judgment.
The writ petition is allowed accordingly. No order as to costs.
Since it is a final judgment, Registry shall ensure to list the writ petition before the present Bench to monitor the compliance of the judgment.
Let a copy of the judgment be sent to the Chief Secretary, Government of U.P., Principal Secretary, Home, Government of U.P., Secretary, Ministry of Law & Justice, Government of India, Director, C.B.I., New Delhi for compliance and appropriate action in pursuance to the observation made in the body of the judgment."
7. In compliance of the said order a Preliminary Enquiry No. 1202014A007 was registered at C.B.I., AC.B, Ghaziabad. Vide order dated 12.11.2014, in the said writ petition the C.B.I. was permitted to conclude the enquiry in two phases in which the first phase was where the amount was of more than Rs. 40 lakhs and in the second phase where the amount was less than Rs. 40 lakhs.
8. The preliminary enquiry of the present case relates to District Mathura, U.P. which was done by the Inspector C.B.I., A.C.B., Ghaziabad.
9. The Investigating Officer after conducting the enquiry made a complaint addressed to the head of the branch of the C.B.I., Ghaziabad on the basis of which first information report of the present case was lodged on 21.09.2015 as R.C. No. 1202015A0008, Police Station- C.B.I., A.C.B., Ghaziabad, District Ghaziabad, under Sections 120-B, 201, 420, 409 I.P.C. and Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 against the following accused persons :-
(i) Chaudhary Laxmi Narayan, the then Minister of Agriculture, Government of Uttar Pradesh;
(ii) Shri Santosh Kumar Srivastava the then District Magistrate cum D.P.C. (MGNREGA), Mathura, U.P.;
(iii) Shri Narendra Kumar Paliwal, the then Chief Development Officer cum A.D.P.C. (MGNREGA), Mathura, U.P.;
(iv) Shri Devi Prasad Mishra, the then Project Director, DRDA cum J.D.C. (MGNREGA), Mathura, U.P.;
(v) Shri Bhikhari Singh, the then Chairman, M/s. Uttar Pradesh Co-operative Construction and Development Ltd. Lucknow (M/s. UPCCDL.) (U.P.).;
(vi) Shri Vinod Singh, Managing Director/C.E.O., M/s. Uttar Pradesh Co-operative Construction and Development Ltd. Lucknow (M/s. UPCCDL.) (U.P.).;
(vii) Shri Lalit Sharma, then then Regional Manager, Agra, M/s. Uttar Pradesh Co-operative Construction and Development Ltd., Mathura unit (U.P.).;
(viii) Shri Santosh Kumar Mishra, the then Project Manager, M/s. Uttar Pradesh Co-operative Construction and Development Ltd., Mathura unit (U.P.).;
(ix) Shri Chander Shekhar Gupta, Assistant Project Manager/Accountant, M/s. Uttar Pradesh Co-operative Construction and Development Ltd., Mathura unit (U.P.).;
(x) Shri Nitin Gupta s/o late Shri Mukesh Gupta, R/o 361, General Ganj, Mathura, Near Kotwali, Mathura, U.P.;
(xi) Shri Khem Chand, ex. Gram Pradhan, Gram Panchayat Pilkhu, Block Chaumuha, District Mathura, U.P.;
(xii) M/s UPCCDL through its M.D./CEO of M/s UPCCDL, 19 Raj Apartment, Lal Bagh, Lucknow;
(xiii) Other unknown persons.
10. The allegations in the First Information Report are that enquiry has revealed that during the period 2008-09 and 2009-10, the 11 named accused persons and other unknown persons conspired with each other and in furtherance of the conspiracy, payment of Rs. 55.30 lakhs was got made dishonestly and fraudulently in violation of the prescribed norms and thereby huge pecuniary loss to the tune of Rs. 55.30 lakhs was caused to the Government with corresponding gain to themselves. In furtherance of the said criminal conspiracy, Chaudhary Laxmi Narayan, wrote a letter in February, 2009 to Chief Development Officer (CDO), Mathura that execution of certain inter locking work in his constituency ''Chhata' should be done by M/s. Uttar Pradesh Co-operative Construction and Development Ltd. Lucknow (M/s. UPCCDL). M/s. UPCCDL is a society registered under the Multi State Co-operative Society Act, 2002 with no share or participation of Government and as such was ineligible for allotment of any work under MNREGA. There was no approval of any Panchayat body and also sanction of work in the administrative / technical capacity was missing. The work was not covered in the yearly budget plan and labour budget under the MNREGA scheme of the District Mathura but even though N.K. Paliwal, the CDO marked the said letter to the Project Director Devi Prasad Mishra and Jai Pal Singh, the Technical Investigator with an endorsement on the back of it.
11. The endorsement of N.K. Paliwal to Santosh Kumar Srivastava, the then District Magistrate and District Programme Coordinator of Mathura dated 26.02.2009 was done despite the said shortcomings who recommended financial sanction of the total estimated cost of Rs. 73.67 lakhs for 07 inter locking works under Chaumuha, Chhata and Nandgaon Blocks of Mathura District on 27.02.2015 and released Rs. 55.30 lakhs as advance in favour of M/s. UPCCDL vide cheque no. 094660 dated 02.03.2009 which was signed under the joint signatures of N.K. Paliwal and Santosh Kumar Srivastava. Work order was issued on 02.03.2009 itself. The financial approval was thus accorded in violation of the mandated procedure of MGNREGA Act and Rules. The progress of the work was to be monitored / supervised but the same was not done.
12. A note was initiated by Rajpal Singh, the then Clerk / DRDA, Mathura and endorsed by Jaipal Singh, Technical Investigator, DRDA, Mathura and Devi Prasad Mishra, the then Project Director, DRDA, Mathura on 24.08.2009 highlighting non-observance of mandatory requirements by M/s. UPCCDL. Basant Lal, the then Chief Development Officer marked for an enquiry to Devi Prasad Mishra, the then Project Director, DRDA, Mathura who conducted a sham of an enquiry probably to cover up the matter. The said work was done to be executed in three blocks and concerned BDOs who were responsible for supervision, monitoring of works to be executed in MNREGA Act and issuance of muster rolls in their blocks. J.K. Trivedi and Raj Kumar Verma were BDOs cum POS of the three blocks but not such work was monitored and supervised by them. In order to procure muster rolls from BDOs and Nandgaon and Chaumuha blocks, Nitin Gupta fraudulently signed and submitted a requisition as an Assistant Project Manager, M/s UPCCDL, Mathura. In Chhata block, muster roll was got issued and received on 12.03.2009 by Khem Chand, Gram Pradhan, Pelkhu for M/s UPCCDL. The amount of the said cheque which was issued as advance was credited in the main account of M/s UPCCDL at UCO Bank, Lucknow. The account was operated jointly by Bhikhari Singh, the then Chairman and Vinod Singh, the Managing Director / CEO in UPCCDL. The funds were thereafter transferred to another account of this firm in the UCO Bank, Mathura which was operated jointly by Santosh Mishra and Chandra Shekhar Gupta which was subsequently distributed / drawn by various persons through cheques issued by Santosh Mishra and Chandra Shekhar Gupta. Out of the said amount of Rs. 55.30 lakhs, payment has been received by M.D./C.E.O. of UPCCDL, Vinod Singh, Nitin Gupta, Khem Chand from Mathura unit account.
13. Till July, 2009 no payment was made to job card beneficiaries under MNREGA scheme. Basant Lal, the then CDO passed an order for payment to labours which was then showed to have been made between 07.09.2009 to 29.09.2009. There were forged entries made in the job card. No entry was done in the Government records of District Mathura of subject works under MNREGA. No expenditure voucher for subject work was found. The expenditure vouchers and muster rolls and other relevant documents could not be found at any Government / Panchayat place of District Mathura. M/s UPCCDL did not provide these documents to DRDA/CDO office, Mathura against release of Rs. 55.30 lakhs in its favour. The first information report was thus lodged.
14. The investigation concluded and a charge-sheet No. 8 dated 31.01.2020 was submitted against Bhikhari Singh, the then Chairman M/s. UPCCDL, Lucknow, Vinod Singh, the Managing Director/C.E.O. UPCCDL, Lucknow, Santosh Kumar Mishra, the then Project Manager, UPCCDL, Mathura, Chandra Shekhar Gupta, the then Assistant Project Manager, UPCCDL, Mathura and M/s UPCCDL through its representative Managing Director, under Sections 120-B, 201, 409, 420 I.P.C. In so far as Chaudhary Laxmi Narayan, Santosh Kumar Srivastava, Narendra Kumar Paliwal, Devi Prasad Mishra, Lalit Sharma, Nitin Gupta and Khem Chand are concerned, their complicity was not found in the matter and as such they were the persons not charge-sheeted as per column 12 of the charge-sheet. Amongst the charge-sheeted persons, Bhikhari Singh, the then Chairman and Vinod Singh, the then Managing Director, of UPCCDL, Lucknow are the applicants before this Court.
15. Learned counsel for the applicant- Vinod Singh argued that the first information report was although lodged against 11 named persons, M/s UPCCDL and other unknown persons but charge-sheet has been submitted only against 04 named persons. Amongst 04 named persons, the applicant is named as one of the accused. The implication of the other persons named in the first information report as accused was found to be false and they were exonerated.
16. Learned counsel has further argued that in so far as the applicant- Vinod Singh is concerned, the allegations against him is totally baseless and without any credible evidence. It is argued that the work of the applicant- Vinod Singh as per the bye-laws of the society as he was the Managing Director of it was to aid and assist the Board of Directors in its function in formulation of policies, objectives to planning, to implement policies and plans, to summon meetings of various committees, to maintain funds of the society, to attain the maintenance and to be responsible for conclusion and safety of funds, to sign the deposit receipts, to endorse transfers and such administrative functions. It is argued that the case as is evident from the investigation itself is apparent that the money was transferred in the account of UPCCDL after which through a cheque bearing the signatures of the applicant and co-accused Bhikhari Singh was transferred to its Mathura Branch from where it was disbursed. The end use of the money was through the Mathura office and not from the applicants. The work was executed in District Mathura and the payment was done therein. The applicant cannot be held responsible in any manner with the disbursement of funds which were done by the Mathura unit of the society. The work was done at the concerned place for which a report was duly given which is dated 30/31.01.2020. While placing the supplementary affidavit dated 01.08.2022, learned counsel has placed before this Court paragraph 2 and has argued that the applicant was previously involved in 03 other cases being Case Crime No. 03 of 2012, Case Crime No. 235 of 2013 and Case Crime No. 343 of 2013 in which in the first case, he has been granted bail by this Court whereas in the other 02 cases, he is in interim bail vide order dated 12.01.2015 passed by the Sessions Judge, Mirzapur and the interim bail is still continuing as the same was granted to the applicant with a direction that he shall get the remaining work completed and finished but since the State Government has not released the payment so far to enable him to complete the remaining work, the interim bail is continuing. It is argued that as such the previous cases of the applicant are fully explained. The applicant is in jail since 04.03.2022.
17. Learned counsel for the applicant- Bhikhari Singh adopted the arguments of learned counsel appearing for the applicant- Vinod Singh. He further supplemented the arguments by stating that the applicant was the then Chairman of UPCCDL Ltd, Lucknow. The payment of labours have been made in full in compliance of the order of Sri Basant Lal, the then CDO. It is argued that the first information report does not disclose in any manner as to how the applicant is the beneficiary of the said transaction. The Chairman has no executive authority whatsoever over the functioning of the society and the entire work is done in the meetings of general bodies, Board of Directors and executive committees. The applicant has no role in the day to day functioning of it. While placing paragraph 2 of the supplementary affidavit dated 02.08.2022, learned counsel has stated that the applicant was involved in a case being Case Crime No. 03/2022 in which he has been granted bail vide order dated 01.08.2022. Further while placing paragraph 2 of the supplementary affidavit dated 30.07.2022, it is argued that the applicant is being prosecuted in Case Crime No. 03/2022 in which charge-sheet has been submitted. The applicant is in jail since 23.02.2022.
18. Learned counsel for the C.B.I. while opposing both the bail applications argued that the applicant Bhikhari Singh was the Chairman and the applicant Vinod Singh was the Managing Director of the UPCCDL, Lucknow. It is argued that the applicants entered into a conspiracy with the other accused persons and were involved in misappropriation of funds. The documents as asked for could not be made available to show regarding the end use of money and its proper utilization. Rs. 55.30 lakhs was disbursed to UPCCDL which was credited in its bank account maintained at Lucknow of which the applicants were joint signatories, the said money was then transferred in the Mathura account of the society for its utilization. There is no document to show that out of Rs. 9.98 lakhs as assigned for the inter locking work in Badangarh, Block Nandgaon, District Mathura Rs. 7.50 lakhs has been utilized and properly disbursed. There has been no document produced relating to the receiving of money, its expenditure and record of labour and material payment in execution of the said work. By the said act, the Government Exchequer has been cheated and the money has been misappropriated which was received as advance from the Government. It is argued that the applicants are even involved in identical cases which are of previous years and this a repetition of the offence.
19. After having heard the learned counsel for the parties and perusing the record, it is evident that the applicants are the Chairman and Managing Director of UPCCDL Ltd., Lucknow. Money was transferred in the account of the society of which the applicants were the joint signatories. Money was further transmitted by them to Mathura Branch. The documents regarding the end use of money are missing. There is no explanation given regarding the same. The present case is a case of misappropriation of government funds which were allotted for development and betterment of block areas in the district. The money was disbursed in advance but the work was not done/completed. There was a conspiracy within the society for swindling off the funds received as advance in which the accused persons succeeded. The state exchequer thus suffered a loss with equal personal gain to the accused persons by not doing the allotted work in spite of money being paid in advance. The applicant- Bhikhari Singh is previously involved in one case of misappropriation of Government funds in which charge-sheet has even been submitted against him under Sections 409, 420 I.P.C. The applicant- Vinod Singh apart from the present case is involved in 03 other cases which are under Sections 409, 420 and 408 I.P.C. One of the cases being Case Crime No. 03 of 2012, Police Station Kotwali, District Bijnor is common in which both the accused are involved. In the other two cases, the order granting interim bail to the accused Vinod Singh passed by the Sessions Judge, Mirzapur dated 12.01.2015 in two bail applications are as per the pleadings in the supplementary affidavit are still in existence and he is on interim bail till date as the condition imposed therein has not been completed due to non release of payment of the State Government shows an active involvement in the said matters also.
20. Looking to the positive nature of evidence, the charge-sheet submitted against the applicants and the previous criminal antecedents, I do not find it a fit case for bail.
21. Accordingly, both the bail applications are rejected.
22. Before parting with the case it would be apt to record that in the matter of accused Vinod Singh while addressing on his criminal history/ antecedents, learned counsel appearing on his behalf placed before the court paragraph 2 of the supplementary affidavit dated 01.08.2022 in which the affidavit is sworn by Vikas Singh disclosing him as the son of the accused-applicant. The said paragraph reads as under:
"2. That during the arguments it is felt necessary to bring the details of the other cases in which the applicant is arraigned as accused as such the deponent after consultation with the applicant, declares that there are only three cases against the applicant and he is on bail in both the cases, the details are as under :
2.1 The Case Crime No. 03 of 2012, under sections 409 & 420 of the Indian Penal Code 1860, Police Station - Kotwali Shahar, District Bijnor. In this case the applicant has been ordered to be enlarged on bail vide Order dated 08.12.2021 by this Hon'ble Court in Cri. Misc. Bail Application No. 47339 of 2021. The website downloaded copy of the Order dated 08.12.2021 is being annexed here-with as Annexure No. SA-1.
2.2 The Case Crime No. 235 of 2013, under Sections 409 & 420 of the Indian Penal Code 1860, Police Station - Lalganj, District - Mirzapur. In this case the Applicant has been ordered to be enlarged on Interim Bail vide Order dated 12.01.2015, passed by the Ld. Sessions Judge, Mirzapur in Bail Application No. 4 of 2015. The interim bail is still continuing as the state has not released the payment so far to enable the applicant to complete the remaining work. The true copy of the certified copy of the Order dated 12.01.2015 along-with typed copy there-of is being annexed here-with as Annexure No. SA-2.
2.3 The Case Crime No. 343 of 2013, under Sections 408 of the Indian Penal Code 1860, Police Station - Madihan, District - Mirzapur. In this case the has been ordered to be enlarged on Interim Bail vide Order dated 19.01.2015 passed by the Ld. Sessions Judge, Mirzapur in Bail Application No. 31 of 2015. The interim bail is still continuing as the state has not released the payment so far to enable the applicant to complete the remaining work. The true copy of the certified copy of the Order dated 19.01.2015 along-with typed copy there-of is being annexed here-with as Annexure No. SA-3."
23. A perusal of the orders dated 12.01.2015 and 19.01.2015, the copies of which are annexed as annexure No's. SA-2 and SA-3 respectively, it transpires that the applicant has been granted interim bail in both the matters by the Sessions Judge concerned on the condition that he shall get the remaining work and finishing etc. completed and surrender before the court and inform it.
Further as per the pleadings in the supplementary affidavit, the said work has not been completed and the accused in still on interim bail and it appears that the said two bail applications are still pending disposal.
24. A copy of this order be placed within seven (7) days by the Registrar General of this Court before the Hon'ble Administrative Judge, Mirzapur.
Order Date :- 18.08.2022 AS Rathore (Samit Gopal, J.)