ANOKHEY LAL Vs. STATE OF U P

JUDGEMENT

(1.) APPLICANT Anokhey Lal has filed this bail application for his release on bail in Crime No. 152 of 2008 for offenses under sections 409, 420, 467, 468, 471,477 A, 120B I.P.C. And 13(1) ,13(2 ) (D) of The Prevention of Corruption Act, police station Kavi Nagar, district Ghaziabad as his bail prayer in the aforesaid crime has been refused by the courts below. The prosecution allegations against the applicant, in brief, are that he connived with Ashutosh Ashthana, Central Nazir, district court, Ghaziabad, embezzled Provident Fund money of class four employees of district court regarding which an inquiry was conducted by the vigilance department of High Court, Allahabad and thereafter ,on the direction of the High Court, a FIR was lodged by Special Judge, C.B.I., Ghaziabad, which was registered as crime number and for offenses mentioned above. The embezzled amount anointed on the applicant is Rs.5,30,000/-. Sri Suneel Rai advocate was heard in support of the bail application and Sri G.S. Hajela, learned counsel for the C.B.I and Sri Sudhir Mehrotra, learned AGA in opposition and I have perused bail application, counter affidavits and rejoinder affidavits. Sri Rai submitted that the applicant is innocent and has been falsely implicated only on suspicion and he is incarcerated in jail since 20.3.2008. He contended that the applicant is a class IV employee of district court Ghaziabad and was employed as a carpenter. He rendered his services at the request of the main accused at various places including official residences of many beneficiaries for carpentry purposes and in performance of his work he has spent money from his own pocket and therefore the cheque given to him by the main accused was taken by him to be the reimbursement of his money. It is contended that the applicant had not the remotest idea that the services rendered by him will get him implicated in the scam. No specific role has been assigned to him. His name was spelt out by central nazir only to save his head from the crime in which only he was involved. It is argued that but for the 164 Cr.P.C. statement of prime accused, there is no other incriminating evidence against the applicant joining him with the crime. There is no evidence of conspiracy and, in fact, applicant is a victim of the neferious criminal activity of Ashutosh Ashthana. APPLICANT does not have any criminal history nor he is wanted in any case and he is ready to deposit the disputed amount. It is submitted that statement of co accused is not a legal evidence and can not be looked into against the applicant and hence there is no legal evidence against the applicant. Co accused have also been granted bail and hence concludingly, it was prayed that the applicant be released on bail in the afore mentioned offenses. Opposing bail of the applicants it was contended by C.B.I as well as by learned AGA that the fraud relate with the court and the applicants have connived with Ashutosh Ashtana and looking to the inormity of the charge and the dimension of investigation which is swelling day in and day out the applicants be not released. It is further contended that the applicant used to work on 20% commission from the main accused. I have considered rival contentions in the backdrop of the factual allegations. What is not disputed by the rival sides is the fact that the applicant is a class IV carpenter of district court Ghaziabad. He performed his duties at the instructions of Central Nazir and had made furnitures and other wood work at various house including official and/or private residences. He accepted the cheques under bonafide belief that they are the reimbursement of the money spent by him in performance of his work which money was spent by him. The main evidence against the applicants is the confessional statement of the main accused.. How much of that statement can be utilised by the court has to be looked into by the trial judge. Admissibility of the ex- culpatry part of that 164 Cr.P.C. statement is also an aspect to be decided by the trial judge but the fact remains is that but for disclosers made by Central Nazir, there is no direct evidence against the applicants. Further, during the course of the argument it was offered that the applicants are ready to deposit the money anointed on him. Looking to the over all circumstances of the charge and evidence collected till now, but with out expressing any opinion on the merits of the matter, I consider it appropriate to release the applicant Anokhe Lal on bail in the aforesaid Crime No. 152 of 2008 for offenses under sections 409, 420, 467, 468, 471, 477-A, 120-B I.P.C. and 13(1), 13(2) (D) of Prevention of Corruption Act, police station Kavi Nagar, district Ghaziabad on his executing a personal bond of Rs. Fifty thousands with two solvent sureties each in the like amount on the following conditions (i) that the applicant shall co-operate with the investigating agency,(ii) that he will not leave district Ghaziabad without intimation to the I.O. Bail applications is allowed on the above conditions.