The Patna HC granted bail to an Excise Assistant accused in a defalcation case where the primary accused died by suicide. The court noted the investigation was careless and lacked cogent material against the petitioner.
Release on bail on furnishing a bond of Rs.10,000/- with two sureties of the like amount.
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IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.19176 of 2014 Arising Out of PS. Case No. -74 Year- 2014 Thana -KOTWALI District- MUNGER ====================================================== ANANT KUMAR, S/O LATE BALGOVIND RAM, RESIDENT OF MOHALLA- CHITRAGUPRA NAGAR, P.S.- PATRAKAR NAGAR, DISTT.- PATNA AT PRESENT ADDRESS- ASSISTANT, EXCISE DEPARTMENT, IN THE OFFICE SUPERINTENDENT, MUNGER. .... .... PETITIONER/S VERSUS 1. THE STATE OF BIHAR THROUGH S.P. VIGILANCE .... .... OPPOSITE PARTY/S ====================================================== Appearance: For the Petitioner/s : Mr. Kameshwar Singh, Adv. For the State : Mr. Shardanand Jha, APP For the Vigilance : Mr. Kedar Singh, AC to L.O. I/c Vig.
====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV ORDER
5. 22-08-2014 Heard learned counsel for the petitioner as well as learned Additional Public Prosecutor.
Excise Superintendent, Munger had filed written report on account of defalcation of Rs. 1,70,82,000/- (Rupees One Crore Seventy Lacs Eighty Two Thousand) which was detected during course of audit and for that he had made the Clerk, Head Clerk responsible who acted illegally in connivance with licensee.
It has been submitted on behalf of petitioner that admittedly petitioner happens to be clerk in the Excise Office, Munger. It has also been submitted that although petitioner is named in the written report but nothing has been alleged against him in the FIR as well as during course of investigation.
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It has also been submitted that virtually the head clerk was responsible for all the miseries and on account thereof, the aforesaid head clerk, Yogendra Kumar after coming to know about detection of the fraud as well as registration of the case, committed suicide. It has further been stated that raid was conducted at the house of Yogendra Kumar wherefrom the receipt, cash appertaining to Rs.2,59,551/- along with other items were seized. Even during course of investigation neither any incriminating article has been recovered from the possession of petitioner. Prosecution has not been able even to place the duty chart which could have manifested the duty assigned to the petitioner. By having vague allegation, the future of the petitioner has illegally been ducked. It has further been submitted that even though charge sheet has been submitted after conclusion of the investigation, but in most perfunctory manner without identifying involvement of petitioner during course of discharge of his official function relating to the alleged crime, the investigation was conducted.
On the other hand, the learned Additional Public Prosecutor opposed the prayer and submitted that petitioner along with others in collusion with head clerk Yogendra Kumar had put the Department to illegal loss appertaining to rupees more than a crore and on account thereof, rightly been charge sheeted. It has further been submitted that duty chart, the work assigned to the petitioner is not at all relevant because of
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the fact that it happens to be conjoint efforts of all the accused including the petitioner leading to defalcation on the basis of forged and fabricated document.
Gone through the case diary. Right from inception of instant case, head clerk, Yogendra Kumar has been identified as Primary accused and after whose death (suicide) the investigation commenced and concluded without identifying the independent act of each of the accused named in the written report. From the Annexures having along with written report along with paras-10, 12, 13, 14, 15, 16,17, it is apparent that there happens to be complete absence of cogent material with regard to activity of the petitioner during commission of the offence whereunder the money was misappropriated. The investigation, as is evident from the case diary is found suffering from sluggishness and has been conducted in most careless and cavalier manner because of the fact that the Investigating Officer had not cared at least to have the writing of the accused compared with the handwriting having over different treasury chalans, making entries in the relevant registers, failed to identify the Data Operator who was responsible for entering the data in the computer as well as part played by each of the accused.
In the aforesaid background it looks difficult to identify the petitioner to be one of the culprit though was Assistant in the Excise Office at Munger.
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Consequent thereupon, the petitioner Anant Kumar is directed to be released on bail on furnishing bail bond of Rs.10,000/-(Rupees Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned Special Judge, Vigilance (South), Patna in connection with Special Case No.37 of 2014 arising out of Kotwali P.S. Case No.74 of 2014.
(Aditya Kumar Trivedi, J.)
PN/-
U T
1 issue framed by the court
Whether to grant bail to the petitioner who was named in the written report but not alleged in the FIR or identified in the investigation despite the head clerk's death.
ANANT KUMAR
THE STATE OF BIHAR THROUGH S.P. VIGILANCE
ADITYA KUMAR TRIVEDI
As recorded by the court registry
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