Pawan Kumar (in jail) vs State of U.P. and Another

Vijay Kumar Verma, J.—By means of this application u/s 439 of the Code of Criminal Procedure (in short, "the Cr.P.C."), the applicant Pawan Kumar, a Class-IV employee of District Court Ghaziabad, has sought his release on bail in case crime No. 152 of 2008 under Sections 420 467 471 409 468 477A 120B IPC and 8 9 14 and 13(1)(D) 13(2) of Prevention of Corruption Act, P.S. Kavi Nagar, District Ghaziabad.

In pursuance of the direction of High Court of Judicature at Allahabad, an FIR was lodged by Smt. Rama Jain, the then Special Judge, CBI, Ghaziabad on 15.02.2008 at P.S. Kavi Nagar, District Ghaziabad, where a case under Sections 409 420, 466 468 471 477A 120-B IPC and 13(i) and 13(ii) Prevention of Corruption Act was registered at crime No. 152 of 2008 against Central Nazir Ashutosh Asthana of District Court, Ghaziabad along with 39 private persons, 13 Class III employees and 30 Class-IV employees of Ghaziabad Judgeship.

In bird eye view the factual matrix contained in the FIR (Annexure-I), in brief, is that an inquiry conducted by the Vigilance Department of High Court, Allahabad has surfaced conspiracy of embezzlement of class-IV employees provident fund money worth millions of rupees with Ashutosh Asthana, Central Nazir of the District Court Ghaziabad, at the helm of the whole conspiracy. The period of such crime lies between the years 2001 to 2008, and the adopted ways were by showing outsiders and class three employees as district court class four employees, and thereby embezzling Provident Fund money.

Such a registered crime was initially investigated by the local police, which, after investigation conducted by it, has now laid charge sheet against some of the accused. However, under the directions issued by the Apex Court in SLP No. 12981 of 2008 and also under the orders passed by Government of U.P. by it''s notification dated 10.9.08, u/s 6 of Delhi Police Establishment Act, the investigation of the crime was transferred to C.B.I. which is now seized of the investigation. Commenced investigations conducted uphill now reveal the planned dexterous methodology employed by the main accused in spacing the coffer chest of provident fund money in execution of the offences. Some genuine payments due to outsiders for the services rendered by them, who were not the employees of the court, were made through government treasury cheques, involving them in the crime, in some cases outsiders were shown to be employees of the court and money was withdrawn in their names. In other cases class three employees were bracketed as class four employees to withdraw the money, in some other types of cases money was withdrawn more than the entitlement of class four employees and so on which methodology is under process of being fully unearthed by C.B.I.

According to the short counter affidavit filed on behalf of the Central Bureau of Investigation, four treasury cheques amounting to Rs. 7,59,000/- were deposited in different accounts of applicant Pawan Kumar, the details of which have been given in para 5 of the affidavit. The said amount is said to have been embezzled by the applicant after withdrawing the same from bank.

I have heard Sri S.P.S. Raghav, Senior Advocate assisted by Sri Anil Raghav, learned Counsel for the applicant, Sri G. S. Hajela, Advocate appearing for the CBI and AGA for the State.

It is submitted by learned Counsel for the applicant that the applicant is a victim of nefarious criminal activity of the then Central Nazir Ashutosh Asthana and the applicant does not have any criminal history nor he is wanted in any other case. It is also submitted by learned Counsel that the applicant did not withdraw any amount as alleged in the short counter affidavit of CBI and entire amount was withdrawn by the then Central Nazir Ashutosh Asthana.

Next submission made by learned Counsel for the applicant is that after getting the embezzled amount deposited, the co-accused Nand Kishore (Stenographer) has been granted bail by another Bench of this Court vide order dated 17.04.2009 passed in criminal misc. bail application No. 16520 of 2008 and another co-accused Ved Prakash, who is alleged to have embezzled Rs. 10,10,000/- also has been granted bail by another Bench vide order dated 16.04.2009 passed in bail application No. 21254 of 2008. Further submission is that another co-accused Radhey Shyam, who is also a Class-IV employee of District Court, Ghaziabad and who is alleged to have embezzled Rs. 9,46,000/- has been granted bail by this Bench vide order dated 29.06.2009 passed in criminal misc. bail application No. 16527 of 2008 and hence, the applicant also should be released on bail, as he is also ready to deposit the entire amount, which is said to have been embezzled by him. It is also submitted by learned Counsel in this context that the applicant is in jail for more than a year and by keeping him in jail for indefinite period, the government money is not likely to be recovered, whereas the applicant is ready to deposit the entire amount of embezzlement and hence the release of the applicant on bail on getting the embezzled amount deposited would be in the interest of State of U.P. also

The bail application has been vehemently opposed by Sri G. S. Hajela, Advocate appearing for the C.B.I. and AGA contending that the applicant has embezzled Rs. 7,59,000/- during the period 2001 to 2007 as per details given in para 5 of the short counter affidavit of CBI and hence, in this heinous crime, the applicant should not be admitted to bail.

Having given my thoughtful consideration to the rival submissions made by the parties'' counsel and keeping in view the fact that the applicant is ready to deposit the entire amount of embezzlement and also having regard to the fact that co-accused Nand Kishore (Stenographer), Radhey Shyam, Class-IV employee (Safai Karamchari) and another co-accused Ved Prakash have been granted bail by this Court after getting the amount of embezzlement deposited, I consider it appropriate to admit the applicant to bail. I am conscious that due to deposit of the embezzled amount, the offences against the applicant would not be wiped out and on being convicted, he will have to face legal consequences, but since the applicant, who is in jail since 16.02.2008, is ready to deposit the entire amount of embezzlement, hence he may be admitted to bail now.

Accordingly subject to the condition of depositing Rs. 7,59,000/- under the appropriate Head of State of U.P. and filing treasury challan in the court concerned, let the applicant Pawan Kumar s/o Kaluwa Singh involved in case crime No. 152 of 2008 u/s 420 467 471 409 468 477A 120B IPC and 8/9/14 13(1)(D) and 13(2) Prevention of Corruption Act, P.S. Kavi Nagar, Ghaziabad be released on bail on his executing a personal bond of Rs. 40,000/- and furnishing two sureties each in the like amount to the satisfaction of the court concerned and executing an undertaking in the following terms:

That the applicant shall cooperate with the investigating agency.

2.That he shall not leave District Ghaziabad without intimation to the concerned Court.

3.That he will make himself available as and when required either by the prosecution or by the Court concerned.

Aforesaid amount shall be subject to final outcome of the case.