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Allahabad High Court · body

2021 DIGILAW 793 (ALL)

Anshuman Dubey v. State of U. P.

2021-08-04

SAURABH SHYAM SHAMSHERY

body2021
JUDGMENT : 1. This bail application under Section 439 of Code of Criminal Procedure is filed by the applicant seeking enlargement on bail during trial in connection with Case Crime No.153 of 2020, under Sections 406, 409, 411, 120-B, 420, 467, 468, 471 IPC, Police Station - Civil Lines, District - Allahabad, after rejection of his bail application, vide order dated 15.10.2020 passed by Sessions Judge, Allahabad. 2. Amit Malviya Manager, Kotak Mahindra Bank, Branch at S.P. Marg Civil Lines, Allahabad (complainant) submitted a written report against the applicant for the commission of offence under Section 409 and 406 of Indian Penal Code on 5.4.2020, alleging that applicant was working as Service Developer Officer (S.D.O.) at the said Branch since 2015. On 4.4.2020, it came into the knowledge of Branch that applicant has misappropriated the amount of Rs.9,46,27,500/-. It was further alleged that the Central Reading Unit (C.R.U.), had intimated through email that details of account of Kotak Bank in the Bank of Baroda Branch, Khuldabad, which was used for the purpose for Currency Chest were not matching. On the basis of said email, further investigation were undertaken; that applicant was authorized to send cash from the Branch of Kotak Bank to the Branch of Bank of Baroda and Union Bank of India to deposit in the Currency Chest Account. This facility was undertaken because there was no currency Chest of the Kotak Bank. During inquiry, the applicant has admitted in writing that he alone misappropriated the entire amount. He also admitted that while disposing the amount in Chest Branch, he used to deposit less amount and converted the remaining amount to his personal use, for the last 1 1/2 years. Applicant also shared the name and phone numbers of those persons with whom, he shared the proceeds, with details of amounts. 3. After lodging the First Information Report, investigation commenced. The Investigating Officer arrested the applicant when he was trying to flew away on 10.4.2020, along with cash money and jewellery. The total cash recovered was of Rs.42,33,500/-. Jewellery made of gold and silver weighting about 1.2 kilogram, was also recovered from his possession. 4. The Investigating Officer recorded the statement of first informant, who discloses that the applicant during preliminary inquiry, has disclosed the names of the persons to whom he has given different amounts which were running in lakhs. The total cash recovered was of Rs.42,33,500/-. Jewellery made of gold and silver weighting about 1.2 kilogram, was also recovered from his possession. 4. The Investigating Officer recorded the statement of first informant, who discloses that the applicant during preliminary inquiry, has disclosed the names of the persons to whom he has given different amounts which were running in lakhs. It was further revealed that wife of applicant had purchased a plot in District - Basti, a flat in Gorakhpur and also purchased jewellery amounting Rs.50-60 lakh during the relevant period. Applicant has also purchased Compass Jeep, registered in his name and other vehicles also, registered in the name of his associates. Huge amounts were also found transferred from the account of wife of the applicant during relevant period. 5. After conclusion of investigation, charge-sheet dated 3.7.2020 was filed against the applicant and other six co-accused for commission of offence under above referred Sections. Further investigation was kept pending in relation to the other 16 co-accused. 6. Shri Manish Tiwary, learned Senior Advocate assisted by Shri Gaurav Tripathi, learned counsel for the applicant has vehemently argued in support of prayer made in application to enlarge the present applicant on bail, which are summarized as follows :- (i) Applicant was kept under illegal detention from 4.4.2020 and his arrest was shown only on 10.4.2020 during lock-down (due to Covid-19 pandemic) period. The alleged recovery of huge amount of cash and jewellery, from the possession of the applicant, was not only false and fabircated but was improbable, rather it was a planned recovery. The recovery was completely denied. It was part of the money extracted from family and friends of the applicant during his illegal detention. (ii) Learned Senior Advocate pointed out that in the banking system, there exists several mechanisms of checks and balance. Surprisingly during 1 1/2 year, not a single instance of mismatching of account was detected. It was pointed out that only duty assigned to the applicant was to hand over the cash to the C.M.S. Manager and thereafter, it was their duty to deposit money in Currency Chest either at the Bank of Baroda or the Union of India and to return the vouchers to the Kotak Bank. It was pointed out that only duty assigned to the applicant was to hand over the cash to the C.M.S. Manager and thereafter, it was their duty to deposit money in Currency Chest either at the Bank of Baroda or the Union of India and to return the vouchers to the Kotak Bank. (iii) Learned Senior Advocate has relied upon a tabulation chart prepared on behalf of the applicant appended along with the supplementary affidavit to show that total cash amount off load from the Kotak Bank and the total amount deposited at Currency Chest Account at Bank of Baroda and Union of India was totally matched. Not a single penny was misappropriated, further admittedly, there was no 'paper trail'. Therefore, no offence is made out. (iv) Learned Senior Advocate also read out certain parts of the case diary, annexed with the supplementary affidavit and submitted that the Investigating Officer in Parcha No.21 of the case diary dated 12.5.2020 noted that the amount of money allegedly not deposited in Bank of Baroda Chest Branch was found deposited in Union Bank of India Chest Branch. Therefore, he submits that it is apparent even, prima facie, no case is made out against the applicant. (v) The Investigating Officer has not able to connect the role of the applicant with the CCTV footage which was provided only of 3 days though demanded of 90 days. Bank has not provided the bank account statements of days of alleged embezzlement and agreement between Bank and C.M.S.. (vi) Learned Senior Advocate also submitted that applicant was dealing as a broker in big land deals also. Deposits in his accounts was the profit proceeds from those land deals. Applicant's wife is a Government Teacher having salary of Rs.70,000/-per month, who belonged to a well affluent family also. She had certain fixed deposits even before the period of offence. The vehicle Compass Jeep was purchased on loan and with financial help from friends. She had sufficient source of money. There was no criminality if the same was utilized for the use of her family. Investigating Officer has taken into account the deposits in her account even prior to relevant period. The properties were purchased in February and April 2019, whereas the period of alleged embezzlement was after April 2019. (vii) Co-accused have been granted anticipatory bail. Charge-sheet has already been filed. Investigating Officer has taken into account the deposits in her account even prior to relevant period. The properties were purchased in February and April 2019, whereas the period of alleged embezzlement was after April 2019. (vii) Co-accused have been granted anticipatory bail. Charge-sheet has already been filed. The entire evidence is in the nature of documents, already in possession of the Investigating Authorities. Applicant was neither authorized to handle case nor there was any evidence of such authorization. Only applicant was held responsible for alleged embezzlement through many employee were sharing similar responsibilities. There is no chance for the applicant to flew away from the due process of law and the learned counsel lastly prayed that bail application be allowed, considering applicant is languishing in jail since 4.10.2020. 7. Shri Brijesh Sahai, learned Senior Advocate assisted by Shri Varad Nath, learned counsel for the complainant Bank/informant and learned A.G.A. for the State have vehemently opposed the above referred submissions and submitted that :- (i) Applicant, in a planned manner, siphoned off a huge amount. It is not a simple breach of trust rather a criminal breach of trust by a Banker, which is punishable under Section 409 of Indian Penal Code and in case of conviction, sentence is upto imprisonment for life. Investigation is still pending against 16 other named persons. (ii) Applicant was working in a Banking Department for the last many years. He had complete knowledge about the scheme of transactions. His modus operandi was of adopting methodology of "teeming and lading". He used to hood wing the process and procedures adopted by the complainant Bank by tallying balance by making forged entries in the mirror account and he intentionally switch money between the two Currency Chest Accounts, maintained at the Bank of Baroda and Union Bank of India so that the misappropriation could not be surfaced. (iii) Applicant was working on a monthly salary of Rs.22,000/-per month and a person having such monthly income could not have such huge amount in his Bank or could purchase number of cars, plots and flats. There is no disclosure about the business of the wife of the applicant except salaried employment as a Government Teacher, who had also undertaken transactions of huge amounts. The applicant has miserably failed to disclose the source of huge recovery of cash and jewellery from his possession at the time of his arrest. There is no disclosure about the business of the wife of the applicant except salaried employment as a Government Teacher, who had also undertaken transactions of huge amounts. The applicant has miserably failed to disclose the source of huge recovery of cash and jewellery from his possession at the time of his arrest. The plea taken by the applicant that he was also working as a broker in big land deals, not only false but without any basis also. (iv) Learned Senior Advocate further submitted that present case is required a stringent view, considering the nature and gravity of the accusation. Applicant was the master mind and primary beneficiary of embezzled amount. Applicant had not only admitted the offence but information of beneficiaries was also given in written form. Learned Senior Counsel relied upon judgment passed by the Apex Court in Rohit Tandon vs. Directorate Enforcement, (2018) 11 SCC 46 and Y.S. Jagan Mohan Reddy vs. C.B.I., (2013) 7 SCC 439 . (v) The Director of Enforcement has commenced investigation in the present case under the Prevention of Money Laundering Act, 2002. A notice was served on the Kotak Bank, which was replied, vide letter dated 13.4.2021. Applicant and his accompanies are also facing a case under Gangster Act. (vi) Applicant has rights of Manager Class 9, wherein cash debit limit was Ten crores and his user Intel GL Unit was Hundred crore. There is an unimpeachable CCTV footage recording where the applicant could be seen taking out money from the cash trunk in contravention of the established procedures. (vii) A huge amount of about Rs. 77 lacs were deposited in the account of applicant's wife between April 2018 to April 2020. She has about Rs.2 crore in her various account during the relevant time. She has purchased properties of high value. Deposits and expenditure are irreconcilable with her monthly salary. Her anticipatory bail application was rejected by the Court. (viii) Learned Senior Counsel also submitted that in case bail is granted to the applicant, it is very likely that proceeds of crime will be alienated. Evidence of the cash trail will be destroyed. Cash embezzled could be recovered with the aid of testimony of the accused persons. The chart prepared on behalf of the applicant is nothing but an attempt to create conducive narrations for himself based on incorrect entries., therefore, bail application be rejected. 8. Evidence of the cash trail will be destroyed. Cash embezzled could be recovered with the aid of testimony of the accused persons. The chart prepared on behalf of the applicant is nothing but an attempt to create conducive narrations for himself based on incorrect entries., therefore, bail application be rejected. 8. Heard learned counsel for the rival parties and perused the material available on record including the written arguments submitted on behalf of applicant and informant. 9. (A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused. (B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. (C) It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. (D) It is also well settled that economic offences constitute a class apart and needs to be visited with a different approach in the matter of bail. The economic offence of having deep routed conspiracies and involving huge loss of public funds, needs to be viewed seriously and considered as grave offences affecting the economic of the country, as a whole, and thereby, posing serious threat to the financial health of the country (see para 25 of the judgment Nimmagadda Prasad vs. Central Bureau of Investigation, (2013) 7 SCC 466 also Jagan Mohan Reddy vs. C.B.I., (2013) 7 SCC 439 and Rohit Tandon vs. Directorate of Enforcement (2018) 11 SCC 46 ). 10. The applicant was working as Service Developer Officer with the Kotak Bank Branch at Allahabad since 2015 and also during the relevant time and that applicant was the person, who in normal course of working, handed over the cash to the CMS Manager to deposit the amount in the Chest Currency Account. The applicant had vast knowledge of banking system. The plea taken on behalf of the applicant, that there was no complaint about any mismatching of accounts during the period of 1 1/2 years despite there were various checks and balance and that on the basis of the chart prepared on behalf of the applicant not a single penny was misappropriated. However, the argument submitted on behalf of the complainant and the State that applicant was using methodology of “teeming and lading” for committing the crime, cannot be bushed off at the face of it, which is a possible reason that no complaint surfaced during the relevant time. 11. The Investigating Officer has found huge discrepancies of amount in the Chest Currency Account, maintained at Bank of Baroda and Union Bank of India. 11. The Investigating Officer has found huge discrepancies of amount in the Chest Currency Account, maintained at Bank of Baroda and Union Bank of India. The applicant has not able to provide any plausible explanation of the recovery of huge amount of money in cash and jewellery amounting lakh of rupees and more than 1 kg respectively at the time of his arrest except bald denial. There is absolutely no explanation for source of amount spent in purchase of jeep, cars, land, flat and other valuable items either by the husband or his wife during the relevant time except that the applicant's wife belonged to a well to do family and she is earning a good salary and that applicant was working as a broker in big land deals, which remained uncorroborated even, prima facie, with any material on record. The total amount alleged to misappropriate is more than 9 crores which belongs to hard earned money of the depositors at the Bank. Charge-sheet has been filed against the applicant and five others co-accused. However, further investigation is still in progress against the other 16 co-accused. 12. The chart prepared on behalf of the applicant, which is forcefully relied upon by the learned Senior Advocate for the applicant cannot be considered to the extent to absolve the applicant from the alleged offence more so when the learned Senior Advocate for the informant has argued the use of methodology of “teeming and lading” by the applicant to siphoned off huge amount. The case is based on 'cash trail', therefore, in the event of bail, it is very likelihood that evidence in regard to 'cash trail' will be distroyed. Investigation is still pending to recover remaining siphoned amount, which is very huge. During investigation, offences under Sections 411, 120-B, 420, 467, 468 and 471 were also found to be committed. 13. It is also relevant to note that applicant has himself disclosed the details of the persons and the amount shared to them out of embezzled amount before the Bank Authorities including his modus operandi. So far as recovery of huge cash amount and jewellery during arrest is concerned, prima facie, it can't be disbelieved. It is improbable to plant recovery of such a huge amount of Rs.42,33,500/- and jewellery of gold and silver about 1.2 kg. So far as recovery of huge cash amount and jewellery during arrest is concerned, prima facie, it can't be disbelieved. It is improbable to plant recovery of such a huge amount of Rs.42,33,500/- and jewellery of gold and silver about 1.2 kg. Prima facie, there are sufficient material and evidence including some CCTV footage against the applicant to connect him with the crime. Prima facie, applicant is the master mind and main beneficiary of the alleged offence of misappropriation of huge amount of more than 9 crores and further taking note of the above mentioned law on bail specifically in regard to the economic offences, I am unable to accept the submissions made on behalf of the applicant. In case of conviction, the applicant could be convicted by the sentence up to life imprisonment. In event of bail, it is very likelihood that the applicant would try to influence the witnesses and also try to avoid the due process of law. In these circumstances, no case for bail is made out. 14. In view of the above, the present application is rejected.