Vijendra Nath Gupta vs State Of Uttarakhand

Ravindra Maithani, J

A common question of law has been raised in both these bail applications, hence, they are being decided by this common order.

Applicant Vijendra Nath Gupta is in judicial custody in FIR No. 04 of 2018, under Sections 408, 420, 467 and 120-B IPC, Police Station â€" Tallital,

District Nainital. In this case he has sought his release on bail in BA1 No. 2403 of 2018.

Applicant Vijendra Nath Gupta is also in judicial custody in FIR No. 15 of 2018, under Sections 408 and 420 and 120-B IPC, Police Station â€

Talital, District Nainital. In this case he has sought his release on bail in BA1 No. 2404 of 2018.

Heard learned counsel for the parties through Video Conferencing and perused the records.

The applicant was Accountant in a school run by Prema Jagati Saraswati Vihar, Senior Secondary School Society. Earlier, he was posted with the

school situated in Veer Bhatti. He was transferred from there on 11.07.2017 to a school in Saraswati Vihar, Shanti Puri No.2. According to the FIR

no. 04 of 2018, the applicant did not handover charge and when the record was examined, it was found that the applicant misappropriated Rs.

88,94,635/- of the Society. He withdrew the money by keeping in dark the Chairman and the Secretary of the Society and made payment to Om

Associates and Sai Constructions, whereas both these firms had not done any work with the society. According to the FIR, this embezzlement was

done by the applicant in conspiracy with the Om Associates and Sai Constructions.

In FIR No. 15 of 2018, details have been given with regard to the amount of Rs. 45 Lakh, which was transferred by the applicant by way of

demand draft to Om Associates and there have been other details recorded in it.

Learned counsel for the applicant would argue that in both the bail applications, the applicant was granted short term bail on his depositing total Rs.

50 Lakh with the Registry of this Court and parties are in the process of amicably settling the dispute and if settled, then, the deposited amount may be

given to the parties who may be found entitled to it as per the settlement; the irregularities, according to the FIR, were done since 2010 but, since then,

every year the accounts were audited; in fact, the applicant was transferred and the applicant challenged the transfer before the Tribunal. Due to this

reason, applicant has been implicated in many cases. Learned counsel would also argue that no money was transmitted in the account of the applicant.

He is in jail since 25.07.2018; co-accused has been granted bail. It is also argued that in the FIR No. 15 of 2018, the incident allegedly took place in

the year 2010, but, FIR was filed in the year 2018. The cases are pending at the stage of charge, but, the trial has been stayed as one of the orders

has been challenged in the Sessions Court.

Learned counsel for the applicant would also submit that given some time perhaps parties may arrive at an amicable settlement because due to

Covid-19 pandemic, at present, the formalities of arriving at settlement could not be finalized.

On behalf of the State, learned counsel would argue that the applicant has misappropriated the amount; there is evidence available against him;

witnesses have stated about it; he referred to the statements of the complainant and others.

Instant is a case of misappropriation of amount by the Accountant of a Society who was posted in a school. The gravity of offence is one of the

considerations while considering bail. It is true that in both these bail applications, the applicant was granted short term bail on 22.10.2019, subject to

his depositing Rs. 25 Lakh in each of these cases. The Court may record at this stage only that the bail of co-accused was granted by the Court on

4.11.2019 and that time, it was argued before the Court that the present applicant had been granted bail by this Court. In fact, the applicant was never

granted bail in these matters. As stated, he was granted short term bail on 22.10.2019 therefore, there is no question of parity, as such.

The Secretary of Society Kameshwar Prasad Kala, the Chairman of the Society Shyam Lal, the Bank Managers Sarvesh Katiyal and Chandra

Mohan Singh and Auditor Pawan Kumar have been interrogated by the Investigating Officer. Copies of their statements recorded during investigation

have been enclosed by the State. At the stage of deciding the bail application, deeper analysis of material is not expected of, particularly, when the trial

is underway. The Court is conscious of it.

The Secretary and Chairman of the Society have stated as to how the money was withdrawn and siphoned off by the applicant. According to

Kameshwar Prasad Kala, apart from other deeds, the applicant filed the bank draft on his own and transferred the money through RTGS/NEFT to

OM Associates and Sai Constructions. He has also stated about the money withdrawn by the applicant. Similarly, the Chairman of the Society Shyam

Lal has also stated about it. According to them, their signatures were obtained, based on trust, keeping them in dark. The Bank Managers and Auditor

have also stated about it. The Auditor categorically states in answer to one of the questions that the applicant had withdrawn the money in cash also;

his statements are quite detailed.

The applicant was an Accountant with the society which runs Educational Institutions. There is evidence and statements that he misappropriated

the amount, he withdrew the amount and he transmitted the amount of the society to such firms, which had no business at all with the society.

Having considered the submissions, under the facts and circumstances of the case, this Court is of the view that this is not a case fit for bail. At

this stage, the applicant is not entitled to be enlarged on bail. The bail applications of the applicant in both these matters deserve to be rejected.

The bail application Nos. 2403 of 2018 and 2404 of 2018 are dismissed accordingly.

Learned counsel for the applicant, at this stage, would submit that total amount of Rs. 50 Lakh deposited by the applicant in both these applications

on 22.10.2019 may be refunded to him.

In bail application no. 2403 of 2018, on 22.10.2019, the Court while permitting the applicant to deposit Rs. 25 Lakh, had recorded the arguments

made by the learned counsel for the applicant as hereunder:-

“Learned counsel for the applicant would submit that the applicant is ready to deposit Rs. 25 Lakhs out of Rs. 44,00,075/- before the Registrar

General of this Court and for that purpose, he may be released on short term bail for a period of six weeks.â€​

Similarly, in bail application no. 2404 of 2018 while permitting the applicant and directing him to deposit Rs. 25 Lakhs on 22.10.2019, the Court

observed that:-

“Learned counsel for the applicant would submit that the applicant is ready to deposit Rs. 25 lacs out of Rs. 45,00,000/- before the Registrar

General of this Court and for that purpose, he may be released on short term bail for a period of six weeks.â€​

In both these bail orders according to the applicants, he deposited the amount of Rs. 25 Lakhs out of Rs. 44,00,075/- and Rs. 45 Lakhs

respectively. Why? Was it a kind of admission of guilt by the applicant? These and many more questions would require deliberations. The applicant is

free to move a separate application for this purpose which may be heard separately.

At this stage, learned counsel for the applicant would again submit that at least Registry may be directed to deposit this amount in term deposits,

which may be auto-renewable so that it may also incur interest. Definitely, the amount deposited by the applicant should be kept in auto-renewable

term deposits so that this amount may also incur some interest.afa