# Ajay Kumar Sharma v. State Of U.P - **Citation:** (2016) 8 ILRA 1095 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-08-12 - **Bench:** Karuna Nand Bajpayee - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ajay-kumar-sharma-v-state-of-u-p-44138 - **Pages:** 6 ## Headnote G.A., B. P. Verma, Jitendra Singha The applicant was elected Secretary of "Life Insurance Corporation Employees Salary Earners Cooperative Society Ltd., Mathura" from 1998 to 2012. An FIR dated 01.04.2015 was lodged by the President of the Society (Yogendra Singh) alleging that during his tenure as Secretary, the applicant had embezzled an amount of Rs.40,04,500/- by making forged entries in the ledger and other records of the Society and failed to hand over the records to the subsequent Secretary. An audit report prepared by Senior Auditor Mahesh Chandra Soni supported the allegation of embezzlement. After investigation, charge-sheet No.33 of 2015 dated 19.09.2015 was submitted only against the applicant under Sections 420, 406, 504, 506, 467, 468, 471 and 408 IPC. Cognizance was taken on 22.09.2015. The applicant is in jail since 07.09.2015. The Court observed that the nature of arguments and the intricate aspects of accounting involved in the case require thorough appreciation of evidence which can only be done during full-fledged trial. The Court refrained from giving any finding on guilt or innocence or credibility of evidence at this stage so as not to prejudice either party. However, considering the overall facts, period of detention, assurance given by the applicant to deposit the substantial amount, and absence of material showing possibility of tampering with evidence, the Court found it a fit case for grant of bail with stringent conditions. Held: Para- Case Law discussed: ## Text 8 All. Ajay Kumar Sharma Vs State Of U.P. 1095 (2016) 8 ILRA 1095 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 12.08.2016 BEFORE THE HON'BLE KARUNA NAND BAJPAYEE, J. Criminal Misc. Bail Application No.- 37294 Of 2015 Ajay Kumar Sharma ...Applicant Versus State Of U.P. ...Opposite party Counsel for the Applicant: Deepak Kumar Pandey, K.K. Pandey Counsel for the Opposite party: G.A., B. P. Verma, Jitendra Singha The applicant was elected Secretary of "Life Insurance Corporation Employees Salary Earners Cooperative Society Ltd., Mathura" from 1998 to 2012. An FIR dated 01.04.2015 was lodged by the President of the Society (Yogendra Singh) alleging that during his tenure as Secretary, the applicant had embezzled an amount of Rs.40,04,500/- by making forged entries in the ledger and other records of the Society and failed to hand over the records to the subsequent Secretary. An audit report prepared by Senior Auditor Mahesh Chandra Soni supported the allegation of embezzlement. After investigation, charge-sheet No.33 of 2015 dated 19.09.2015 was submitted only against the applicant under Sections 420, 406, 504, 506, 467, 468, 471 and 408 IPC. Cognizance was taken on 22.09.2015. The applicant is in jail since 07.09.2015. The Court observed that the nature of arguments and the intricate aspects of accounting involved in the case require thorough appreciation of evidence which can only be done during full-fledged trial. The Court refrained from giving any finding on guilt or innocence or credibility of evidence at this stage so as not to prejudice either party. However, considering the overall facts, period of detention, assurance given by the applicant to deposit the substantial amount, and absence of material showing possibility of tampering with evidence, the Court found it a fit case for grant of bail with stringent conditions. Held: Para- Case Law discussed: (Delivered by Hon'ble Karuna Nand Bajpayee, J.) 1. Heard Sri Rajul Bhargav, learned Senior Counsel for applicant assisted by Sri Deepak Kumar Pandey and Sri. B.P. Verma, learned Counsel for informant and the learned A.G.A. 1096 INDIAN LAW REPORTS ALLAHABAD SERIES 2. Brief facts as they emerge from record are that there is a registered society known as "Life Insurance Corporation Employees Salary Earners Cooperative Society Ltd. Mathura", whereof all the employees of Life Insurance Corporation are members, who deposit their savings as fixed deposits. The informant Yogendra Singh, who himself is said to be the President of said society, lodged a First Information Report, dated 1.4.2015 under the instructions / order dated 04.02.2015 issued by the Assistant Commissioner / Assistant Registrar, Cooperative, Mathura with allegations that the accused applicant Ajay Kumar Sharma was elected Secretary of said society and had continued as Secretary from the year 1998 up to 2012, during which period amounts were being deposited by the members of the society as Fixed Deposits through accused applicant, for which relevant particulars of receipt of amounts so deposited and amount of cash of the society was not being entered into relevant ledger for several years and a large amount of money has been embezzled and even after issuing of notice to accused applicant, he did not handover records to the society and hence, the members of society were suffering pecuniary loss and when the demand of record was made to the accused applicant, he extended threat of dire consequences. 3. After lodging of first information report, investigation was carried out, during which an audit report was also provided to the investigating officer, which was prepared by Senior auditor Sri Mahesh Chandra Soni, wherein it was mentioned that the audit of society's record revealed difference in Work-sheet and actual dues and the accused applicant has embezzled an amount of Rs. 40,04,500/- by committing forgery in the record of the society and has thus caused loss to the society. After investigation, charge sheet no. 33 of 2015 dated 19.09.2015 has been submitted only against accused applicant, on which cognizance has been taken by the court below on 22.09.2015. 4. Submission of the counsel for applicant is that the accused applicant was nominated as secretary of the society by the general assembly of elected directors on the basis of his honesty and integrity for the period 1998-2012 and during said period, the account of the society was audited from 2006 to 2011 every year and these yearly audits were being conducted by different auditors, wherein no irregularity was ever pointed out and the work of the accused applicant as secretary was found up-to-date with full satisfaction of the auditors. Further submission is that the applicant relinquished the charge of secretary on 12.12.2012 giving it to one Neeraj Mittal and also handed over all the record pertaining to the society to him who continued as Secretary upto18.09.2013 and till this date too, no dissatisfaction surfaced about the functioning of applicant for the period 1998 to 2012 relating to his working. It is contended that when said Neeraj Mittal relinquished the charge as secretary, the present secretary Vijaypal Singh, who is close friend of informant of present case, took over the charge as Secretary he started creating occasions to harass the accused applicant resulting into lodging of one earlier first information report dated 28.08.2014 registered as Case Crime No. 716 of 2014 under section 406, 504 and 506 of IPC, Police Station Kotwali, which ultimately resulted into submission of final report with conclusion that all allegations against applicant were incorrect. The main reason for animosity of said Vijaypal Singh with the accused applicant was that he could not be nominated as secretary of society throughout the tenure of accused applicant despite being desperately ambitions to hold the post. Submission is that the said Vijaypal Singh got the audit conducted for the year 2013-14 and surprisingly during the said audit, the concerned auditor, who was in hand and gloves with said Vijaypal Singh, re-audited previous 8 All. Ajay Kumar Sharma Vs State Of U.P. 1097 financial years too without any prior permission of the Assistant Commissioner / Assistant Registrar, Cooperative, Mathura and by adopting such anomalous mode, an allegation of embezzlement of about 40 lacs was framed against the applicant in the audit report. Further submission is that the said auditor for the year 2013-14 was same Mr. Mahendra Kumar Soni, who himself had audited the accounts of the society in the financial year 08-09, 09-10, during which no short coming or irregularity was pointed out in the accounts of the society. Submission is that on the basis of said audit report pertaining to the year 2013-14, an enquiry was managed by the informant and said Vijaypal Singh by obtaining order from Assistant Commissioner / Assistant Registrar, Cooperative, Mathura, which was allegedly conducted within two (2) days, and it is claimed in the inquiry report that seven (7) year's record has been scrutinized. Submission is that in fact the alleged two (2) days inquiry was just an eyewash. It has also been contended that the controversy relates to the accounting of pecuniary receipts and withdrawals of the society in question and the perusal of entire material collected by the investigating officer during the course of investigation does not reveal as to when, how and in what manner the alleged embezzlement has taken place or the alleged forgery of record has been committed. Further submission is that the applicant is absolutely innocent and in fact,he is being victimized due to inimical attitude of the informant and present president and he is languishing in jail since 7.9.2015 and there is no likelihood of early conclusion of trial. 5. In the last it has been additionally submitted by the applicant's counsel that as the applicant has never had any dishonest intention to either embezzle the money or to misappropriate the same and has been dealing with the cash and property of the society with scrupulous honesty, he has his conscience clean and has full faith in judiciary and also has confidence that the prosecution shall miserably fail to prove his guilt as there is abundant material available on record on the basis of which the applicant shall succeed to prove his innocence in the trial. Submission is that the applicant is a regular employee of Life Insurance Corporation and there is no question of his fleeing away from court's verdict and he shall be always available in the court to face the trial and accept the judicial verdict. It has been stated at the bar that in in order to demonstrate his honest intention the applicant with the help of his family is also prepared to deposit the substantial principal amount alleged to have been embezzled by him. It has also been submitted by the counsel that the charge sheet in the case has already been submitted and if he is released on bail there is no question for him to meddle or interfere in the investigation which is already complete. It has also been submitted that the applicant is prepared to accept any condition which may be imposed upon him for making himself available to face trial faithfully. Counsel has tried to contend that the primary object of releasing the applicant on bail is to ensure his availability in the trial and the provision of bail should not be used as punitive provision in order to punish the accused which can more appropriately be done by the trial court only after his guilt is proved beyond all reasonable doubts. 6. Learned counsel for the complainant and learned A.G.A have opposed the submissions made on behalf of the applicant and have jointly submitted that the society in question is an autonomous body and functions thereof are regulated according to bye laws. The said society was established for benefits of the employees of Life Insurance Corporation and for this purpose, the members of the society, who are employees of L I C, deposit respective amount of their hard earned 1098 INDIAN LAW REPORTS ALLAHABAD SERIES money into the society and in lieu of it, receive interest along with the original amount of deposit after a fix period and in cases of urgency, the members of the society also take loans from the society itself. For all these functions, the Secretary of the Society is the sole ln-charge according to bye laws of the Society. It has been submitted that the Secretary of the Society receives respective amount of money deposited by the members and issues F.D.R (Fixed Deposit Receipts) in lieu of the same to the members and makes all necessary entries in the relevant registers/Account Books/ Statement of Accounts/ Ledger Books. Submission is that being in-charge of such procedure the crux of the allegations against the applicant is that while performing function as Secretary of the Society, during the period from the year 1998 to 2012, the applicant embezzled a total amount of more than Rs.40,000,00/- by endorsing wrong figures in the ledger book and has caused financial loss to the Society and beside this embezzlement, the applicant also did not handover necessary records of the Society to the incoming Secretary at the time of leaving the post of Secretary. Submission is that the financial loss of the Society could have been revealed only in the year 20132014 for the reasons that prior to this period, the applicant himself was secretary of the Society and the yearly audits of the account of the society for the financial year 2006 to 2012 were conducted on the basis of records furnished by the applicant being Secretary. It has been submitted that the F.I.R of the present criminal case was lodged under the orders of Asstt. Commissioner/ Asstt. Registrar of Cooperative Society Mathura after full-fledged inquiry at his own level, wherein a team of officers had inspected the records of the society and had concluded that the erstwhile Secretary Mr. Ajai Kumar Sharma ( the present applicant) could not give any satisfactory reply/ material in respect of discrepancies of the account indicating an embezzlement to the tune of Rs.40,15,500/- committed by the present applicant. Further submission is that the protest petition had been filed against final report in earlier criminal case which is still pending for disposal. 7. Learned counsel for the complainant in addition to the above noted submissions has drawn the attention of the court to various enclosures of counter affidavit filed on his behalf in order to demonstrate the manner in which the entries regarding the amounts in the various account books of members were entered from time to time and were according to him dishonestly increased or tampered with without any plausible or justifiable reason. It has also been contended by the counsel for the complainant that the society in question is suffering from a dead lock in its function due to loss so occurred and also due to the liability of interest accrued thereupon with the passage of time and in fact the real sufferers of crime in question are the members of the society and hence , considering the nature of offence and amount of loss suffered by the society, the bail application of the present applicant is liable to be rejected. 8. Perused the record of bail application as well as case diary produced by learned A.G.A. and considered the same in the light of submissions made by rival sides. 9. The nature of arguments raised and the intricate aspects of accounting involved in this case are such which would require a thorough appreciation of evidence which can be done only by a full fledged trial after giving full opportunity to prosecution to adduce all evidence which if can in order to prove the charge and also after giving full opportunity to the accused to defend himself. This court would prefer not give any findings on the point of guilt or innocence of the accused, nor 8 All. Ajay Kumar Sharma Vs State Of U.P. 1099 any final opinion on the reliability or credibility or the acceptability of prosecution evidence that has been collected so far, lest the same may go to cause any prejudice to either side this way or that way or may go to impair the prospects of an impassionate judicial verdict of trial court. But after taking into account the entire record and also keeping in view the over all facts and circumstances of the case, the nature of evidence and the absence of any such material which may indicate the possibility of tampering with the evidence by the accused, keeping in view the period of his detention which he has undergone so far and also keeping in perspective the assurance given on behalf of the accused to deposit the substantial amount involved in the case, this court is of the view that the applicant Ajay Kumar Sharma involved in case Crime No. 368 of 2015 under sections 420, 406, 504, 506, 467, 468, 471 and 408 IPC P.S. Kotwali District Mathura may be released on bail on his furnishing personal bond with two sureties each of the like amount to the satisfaction of court concerned on the following conditions:- 1. The applicant shall not tamper with the prosecution evidence; 2. The applicant shall not pressurize the prosecution witnesses; 3. The applicant shall personally appear on the dates fixed by the trial court. 4. The applicant shall deposit his passport, if he has any, with the trial court and shall not leave the country without prior permission of this Court; 5. `In addition to the above, the applicant shall deposit Rs.40,00,000/-( Rupees forty lacks only), which is roughly the principal amount said to have been embezzled, by way of a draft in the name of the trial court within four weeks from the date of his release. The amount so deposited shall be invested in fixed deposit scheme in a nationalized bank and shall be renewed from time to time till the termination of the trial. The deposit so made, shall be subject to the final decision of the trial and shall abide by the terms and conditions of the trial courts final verdict in this regard. 10. In case of default of compliance with condition no.5 enumerated above, the order granting bail shall stand cancelled automatically and the court concerned shall issue non bailable warrant in order to get the applicant arrested and lodge him in jail. 11. In case of breach of any other conditions the court concerned shall have the liberty to initiate process of cancellation of applicants' bail. 12. This bail application stands allowed on the aforesaid terms. ---------- 1100 INDIAN LAW REPORTS ALLAHABAD SERIES (2016) 8 ILRA 1100 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 16.08.2016 BEFORE THE HON'BLE RAN VIJAI SINGH, J. Writ C No.- 37546 Of 2016 Sri Prakash Chandra Tripathi ...Petitioner Versus State Of U.P. & Ors. ...Respondents Counsel for the Petitioner: Arvind Kumar Mishra Counsel for the Respondents: C.S.C., Vijay Prakash Mishra This writ petition has been filed for quashing the order dated 08.07.2016 passed by the Additional Commissioner, Allahabad Division, Allahabad in Appeal No.C2016020000470 to the extent it relates to disposal of the stay application. The petitioner was a fair price shop licensee of Village Nyayipur, Vikas Khand Holagarh, Tehsil Soraon, District Allahabad. His agreement was cancelled by the Sub-Divisional Officer vide order dated 29.04.2016. Against the said cancellation order, the petitioner filed an appeal along with a stay application. The appellate authority by the impugned order dated 08.07.2016 admitted the appeal for hearing on merits but instead of granting or refusing stay, passed an order that in case a new shop has been allotted on the place of the cancelled shop, the said allotment shall be subject to the final outcome of the appeal. The Court held that when a statute provides a power to be exercised in a particular manner, it has to be exercised in that manner only. The appellate authority was required either to stay the implementation of the cancellation order or to refuse the stay by giving reasons. Passing an order that any fresh allotment shall be subject to the final decision of the appeal amounts to non-disposal of the stay application and is not in consonance with Order 28(5) of the Distribution Order, 2004. The writ petition is disposed of with the aforesaid directions. Held: Para- The impugned order dated 08.07.2016 is set aside to the extent of disposal of the stay application. The appellate authority is directed to pass a fresh order on the stay application of the petitioner strictly in accordance with Order 28(5) of the U.P. Scheduled Commodities Distribution Order, 2004 within two months from the date of receipt of certified copy of this order. The Principal Secretary, Food and Civil Supply, U.P. is also directed to issue a circular directing all appellate authorities to dispose of stay applications under Order 28(5) either by granting stay or by refusing the same with reasons and not to deviate from the statutory provision.