Allowed

Zahiruddin Khan v. Central Bureau of Investigation.

Allahabad HC28 Jul 2022BAIL/35973/2021

Case brief

AI extract

What is this about?

The bail application was allowed for the applicant falsely named in a corruption case, as he was not in the First Information Report, never arrested, and there was no evidence of tampering with evidence.

What did the court decide?

Warrant of bail allowed with personal bond and two sureties; conditions imposed regarding attendance, non-tampering, and specific appearances for case opening, framing of charges, and Section 313 stat

Zahiruddin Khan Vs Central Bureau of Investigation. — Corruption | Allahabad HC (2022)

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Court No. - 91

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35973 of 2021

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Applicant :- Zahiruddin Khan Opposite Party :- Central Bureau Of Investigation. Counsel for Applicant :- Birendra Singh,A.K.S.Parihar,Javed Raza,Rohan Gupta Counsel for Opposite Party :- Sanjay Kumar Yadav,Gyan Prakash(Senior Adv.),Javed Raza

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Hon'ble Samit Gopal,J.

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Heard Sri Rohan Gupta, learned counsel for the applicant and Sri Gyan Prakash, Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for the CBI and perused the material on record.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Zahiruddin Khan, seeking enlargement on bail during trial in connection with Special Case No. 8 of 2020, arising out of RC No. 120-2017-A0002, under Sections 120-B IPC read with Sections 420, 468, 471 I.P.C. and Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Substantial Offence under Sections 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 66 of the Information Technology Act, Police Station C.B.I, N.C.B., District Ghazaibad.

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The First Information Report of the case was lodged on the basis of a complaint dated 13.01.2017 received from R.K. Srivastava on 16.01.2017 with the subject of fraudulent withdrawal of funds from accounts maintained in the Post Office. The accused named therein were are Rajiv Shankar the then Sub-Postmaster, Govindpuri (Modinagare), Ghaziabad, Mohan Singh the then Postal Agent, Head Post Office, District Ghaziabad, Deepak Garg a private person and other unknown persons.

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The allegations in the First Information Report are that during the year 2015 Ghaziabad Head Post Office was under the process of migration from Sanchay Post Offline software to Finacle online software. Before migration 61 already closed accounts being 49-RD accounts and 12 MIS accounts were reopened at Ghaziabad Head Office on different dates by making fake deposit entries by the Data Entry person. The said accounts were closed at Ghaziabad Head Office and Govindpuri Sub Office on different dates on the basis of fake and forged

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documents and the money which was transferred in the said accounts, was fraudulently withdrawn from the said closed accounts.

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Learned counsel for the applicant argued that the applicant is not named in the First Information Report and he has been falsely implicated in the present case. It is argued that the applicant is at the present posted as Sub-Postmaster, Post Office Shipra Sun City, Indirapuram, District Ghaziabad and is going to be superannuated in October, 2022. The applicant is a government servant working in the Postal Department after being appointed there in the year 1983 on the post of Postal Assistant. He was promoted from time to time in his department looking to his satisfactory work and has been working at various places after regular transfers since last about 37 years. He was promoted to the post of Assistant Postmaster (SB)-I and transferred to Ghaziabad on 18.09.2014 and remained posted there till 28.05.2016.

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Learned counsel has further argued that charge sheet in the matter has been submitted on 25.11.2020 against eight persons including the applicant. It is further argued that the matter was taken up departmentally and with regards to account of one Rita Agarwal a statement of imputation of misconduct dated 18.05.2021 was given to the applicant after which a charge sheet was issued to him and then an order of punishment was passed by Senior Superintendent of Post Offices, Ghaziabad Division, Ghaziabad on 22.06.2021 imposing a penalty of recovery of Rs. 5 lakhs in equal installments over the period of 16 months from the pay of the applicant starting from the payment of July, 2021. It is argued that the said amount as ordered is being deducted from the pay of the applicant.

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It is further argued that in so far as the other accounts are concerned, it is stated in the chart in the charge sheet that the applicant had verified the same. It is argued that the allegations against he applicant for an account in the name of Satya Kumar which is said to have been closed and the money transferred in another account on 29.01.2015 wherein the applicant is shown as the supervisory it false. It is argued that the applicant was on leave from 24.01.2015 to 02.02.2015 and as such there was no occasion for him to attend the office on 29.01.2015 for any work.

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Learned counsel for the applicant has further argued that the department itself has in its order of punishment in the conclusion stated that the applicant had exhibited carelessness and carefree attitude towards the financial transaction happening under his direct overall supervision, which

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contributed to the fraud of amount under reference. It is argued that there is no finding that the applicant was the beneficiary of the said amount.

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Learned counsel for the applicant argued that since the applicant is a government servant there are no chances of his abscondence. It is further argued that the Apex Court in many cases has observed that bail is the rule and jail is the exception and as such the applicant be enlarged on bail. He further argued that the applicant has no criminal history as stated in para 38 of the affidavit and is in jail since 14.07.2021.

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Per contra, learned counsel for the CBI vehemently opposed the prayer for bail and argued that the applicant is actively involved in the present case. It is argued that fake accounts were opened and money was transferred in them which was subsequently withdrawn. The I.D. of other persons were used for many transactions. It is further argued that even sanction for prosecution has been granted by the competent authority against Mohan, Rajiv Shankar, Subhan Ali and the applicant who are public servants which is enclosed with the charge sheet. Learned counsel has argued that the applicant has verified many other accounts and as such the applicant is involved in the entire embezzlement and conspiracy.

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After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is not named in the First Information Report. He has been made as an accused in the present matter during investigation. During the entire period of investigation, the applicant was not arrested. There is nothing on record to show that the applicant did not cooperate in the investigation. Even it is not argued by learned counsel for the CBI that the applicant did not cooperate in the investigation.

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Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

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Let the applicant Zahiruddin Khan , be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C.

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(V) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229A IPC.

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(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

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The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

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The bail application is allowed.

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Order Date :- 28.7.2022 M. ARIF

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(Samit Gopal, J.)

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Digitally signed by MOHAMMAD ARIF Date: 2022.08.01 17:05:50 IST Reason: Location: High Court of Judicature at Allahabad

Zahiruddin Khan v. Central Bureau of Investigation.

Case brief

What is this about?

What did the court decide?

Zahiruddin Khan v. Central Bureau of Investigation.

Case brief

What is this about?

What did the court decide?

What the court decided

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