# Anil Kumar Mishra v. State of U.P

- **Citation:** (2024) 2 ILRA 1323
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-25
- **Case number:** Crl. Misc. Bail Application No. 17725 of 2023
- **Bench:** Krishna Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-mishra-v-state-of-u-p-51346
- **Pages:** 4

## Headnote

G.A., Sri Saurabh Chaturvedi, Sri Shyam Shankar
Mishra, Sri I.K. Chaturvedi, Sri Rajat Sharma

Bail-Allegation- amount of Rs. 34,79,175/- has
been embezzled- FIR lodged regarding the
embezzlement of amount of Rs. 31,39,638/-
only-all the withdrawal has been made through
cheques - no FSL report on record to suggest
that the signatures have been forged-applicant
has no criminal history- grant of bail is a rule
and refusal is an exception. Bail Application
allowed. (E-9)

Cases cited:

## Text

2 All. Anil Kumar Mishra Vs. State of U.P.
1323
which are being imposed in the interest of
justice:-

(i) The applicant will not tamper with the
evidence during the trial.

(ii) The applicant will not pressurize/
intimidate the prosecution witness.

(iii) The applicant shall not directly or
indirectly make any inducement, threat or promise to
any person acquainted with the facts of the case so as to
dissuade him from disclosing such facts to the Court or
to any police officer or tamper with the evidence.

(iv) The applicant shall file an undertaking
to the effect that he shall not seek any adjournment on
the dates 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.

(v) The applicant shall remain present
before the trial court on each date fixed, either personally
or through his counsel. In case of his absence, without
sufficient cause, the trial court may proceed against him
under Section 229-A of the Indian Penal Code.

(vi) 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. is issued and the
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 of the Indian Penal Code.
----------
(2024) 2 ILRA 1323
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.01.2024

BEFORE
THE HON'BLE KRISHNA PAHAL, J.

Crl. Misc. Bail Application No. 17725 of 2023

Anil Kumar Mishra ...Applicant
Versus
State of U.P. ...Respondent

Counsel for the Applicant:
Sri Niraj Kumar Dwivedi, Sri Pradeep Kumar
Singh, Sri Prabhakar Awasthi

Counsel for the Respondent:
G.A., Sri Saurabh Chaturvedi, Sri Shyam Shankar
Mishra, Sri I.K. Chaturvedi, Sri Rajat Sharma

Bail-Allegation- amount of Rs. 34,79,175/- has
been embezzled- FIR lodged regarding the
embezzlement of amount of Rs. 31,39,638/-
only-all the withdrawal has been made through
cheques - no FSL report on record to suggest
that the signatures have been forged-applicant
has no criminal history- grant of bail is a rule
and refusal is an exception. Bail Application
allowed. (E-9)

Cases cited:

1. Emperor Vs H.L. Hutchinson, AIR 1931 All
356

(Delivered by Hon'ble Krishan Pahal, J.)

1. List has been revised.

2. Heard Sri Prabhakar Awasthi and
Sri Niraj Kumar Dwivedi, learned counsels
for the applicant and Sri I.K. Chaturvedi,
learned Advocate assisted by Sri Rajat
Sharma, learned counsel for the informant
as well as Sri R.P. Patel, learned A.G.A. for
the State and also perused the record.

3. Applicant seeks bail in F.I.R./Case
Crime No. 55 of 2023, under Sections 420,
409, 467, 468, 471 IPC, Police Station
Sujanganj, District Jaunpur, during the
pendency of trial.

PROSECUTION STORY:-

4. As per prosecution story, the
applicant is stated to be the Additional
Clerk in the institution being run by the
informant, who happens to be its manager.
The job of the applicant was to take care of
the documents of the College including
pertaining to the bank accounts in Union
1324 INDIAN LAW REPORTS ALLAHABAD SERIES
Bank of India, Branch Sujanganj, Jaunpur
and he used to take care of all the
transactions. Without any information, the
applicant is stated to have absented himself
since 9.3.2022. Despite many letters and
reminders being sent to the applicant, no
clarification was accorded by him. On
suspicion, the statement of the account of
the institution was taken from the Bank
which indicated that an amount of Rs.
31,39,638/- has been wrongly withdrawn
and the same has been transferred to the
account number 366602010020750 of the
applicant and he has misused the same.

5. It is also alleged in the FIR that the
applicant had forged the signatures of the
informant on the cheques and has caused
loss to the State Ex-chequer including the
institution. The Principal of the institution
is also stated to have sent several letters to
the applicant but he did not respond to any
of them. On 16.1.2023, the Management
Committee of the institution held an
extraordinary
meeting
and
passed
a
resolution that a 3-member committee shall
open the wardrobe belonging to the
applicant and get it video graphed. The said
3-member committee of Vijay Shankar
Mishra, Sri Rakesh Kumar Tiwari and
Heera Lal, in presence of the informant,
had broke open the said wardrobe on 28th,
29th and 30th of January, 2023 and found
several documents and files missing from
it. A bare perusal of the record indicated
that the applicant (Anil Kumar Mishra) had
interpolated the documents and had taken
them away.

RIVAL CONTENTIONS:

Contention On Behalf of Applicant:-

6. Learned counsel for the applicant
has stated that the applicant is maliciously
being prosecuted in the present case due to
ulterior motive and has the apprehension of
his arrest. The applicant has nothing to do
with the said offence as alleged by the
prosecution. Learned counsel has next
stated that the applicant is stated to be
working on the said post since 2018.
Learned counsel has further stated that as
per the letters sent to the applicant dated
25.12.2022, filed as Annexure-7 to the
affidavit, an amount of Rs. 18,09,263/- is
stated to have been withdrawn by the
applicant, an amount of Rs. 13,30,375/- is
stated to have been withdrawn by Kallu,
and an amount of Rs. 3,39,537/- is stated to
have been withdrawn by one Shyam
Bahadur Yadav. It is next stated that the
said
letter
indicates
towards
the
embezzlement of Rs. 34,79,175/- but the
FIR has been instituted regarding the
embezzlement of Rs. 31,39,638/- only,
which
pertains
to
the
said
amount
withdrawn by the applicant and Kallu.
Learned counsel has stated that the said fact
itself falsifies the prosecution story. It is
stated that the alleged third person i.e.
Shyam Bahadur Yadav had deposited the
said amount in the account of the
institution.

7. Learned counsel has stated that the
co-accused person Kallu is stated to have
sent a letter to the Manager/Principal of the
institution on 18.4.2023 stating that he was
ready to return the stipulated amount of Rs.
13,30,375/- due towards him. It is also
alleged by the said person Kallu that it was
the applicant, who used to give him
cheques and take him to the Branch of the
Bank and used to get the amount
withdrawn from the account and retained
the money with him. He was fleeced and
fooled on the ground that he shall be
promoted from Class IV employee to the
post of Clerk. It is stated that the said
2 All. Anil Kumar Mishra Vs. State of U.P.
1325
statement is also contradictory, as the said
Kallu is stated to be committing the said
forgery from the year 2013 and the
applicant came into existence on the said
post in the year 2018, as such, the complete
prosecution story falls to the ground.

8. Learned counsel has also stated that
all the money transactions have taken place
through cheques and there is no FSL report
on record to suggest that the said signatures
of the informant have been forged by
anybody. Learned counsel has further stated
that no bank official could pass such large
number of cheques bearing fake signatures
without collusion.

9. Learned counsel has also placed
reliance on the account statement of the
applicant filed as Annexure-2 to the
rejoinder
affidavit
dated
11.1.2024,
whereby he has indicated that the money
deposited was immediately withdrawn, as
is evident from the transactions dated
6.11.2018,
29.5.2019,
12.7.2019,
30.8.2019,
30.12.2019,
17.1.2020,
8.5.2020, 5.8.2020 and 18.5.2021. Learned
counsel has stated that it was the modus
operandi of the informant was that he
himself issued cheques to the applicant and
other persons including Kallu and Shyam
Bahadur Yadav and used to retain the
amount in cash with him but he has himself
exonerated the two other persons and the
applicant has been made a scapegoat by the
informant, to save his own skin.

10. Several other submissions have
been made on behalf of the applicant to
demonstrate the falsity of the allegations
made against him. The circumstances
which, as per counsel, led to the false
implication of the applicant have also been
touched upon at length. It is further stated
that there is no criminal history of the
applicant. The applicant is languishing in
jail since 17.3.2023. In case, the applicant
is released on bail, he will not misuse the
liberty of bail.

Contention
On
Behalf
Of
The
Informant:-

11. On the other hand, learned A.G.A. and
learned Senior Counsel for the informant
have vehemently opposed the prayer for
grant of anticipatory bail on the ground that
the applicant is the chief architect of the
said crime and the signatures on the said
cheques through which the amount has
been withdrawn have been sent to the
forensic laboratory by the investigating
officer, although final report (charge sheet)
has been filed. The FSL report is still
awaited. Learned Senior Counsel has
further stated that the said amount received
in the account of the applicant has been
siphoned off to the loan account of the
applicant and even income tax has been
paid from it.

CONCLUSION:-

12. This Court in Emperor vs. H.L.
Hutchinson, AIR 1931 All 356, has
observed that the grant of bail is a rule and
refusal
is
an
exception.
A
liberal
interpretation to the provision for bail is the
cardinal
principle
of
criminal
jurisprudence. It has also been observed by
the Apex Court and this Court in a number
of judgements that bail is not to be
withheld as a punishment.

13. Keeping in view the nature of the
offence, evidence on record regarding
complicity of the accused, larger mandate
of the Article 21 of the Constitution of
India, and taking into consideration the fact
that in total, an amount of Rs. 34,79,175/-
1326 INDIAN LAW REPORTS ALLAHABAD SERIES
has been embezzled and FIR has been
instituted regarding the embezzlement of
amount of Rs. 31,39,638/- only, as such,
there cannot be pick and choose in the said
matter of embezzlement and also taking
into consideration that all the withdrawal
has been made through cheques and there is
no FSL report on record to suggest that the
signatures have been forged, coupled with
the fact that the applicant has no criminal
history, without expressing any opinion on
the merits of the case, the Court is of the
view that the applicant has made out a case
for bail. The bail application is allowed.

14. Let the applicant- Anil Kumar
Mishra who is involved in aforementioned
case crime be released on bail on his
furnishing a personal bond and two sureties
each in the like amount to the satisfaction
of the court concerned subject to following
conditions. Further, before issuing the
release order, the sureties be verified.

(i) The applicant shall not tamper
with evidence.

(ii) 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.

15. In case of breach of any of the
above conditions, it shall be a ground for
cancellation of bail.

16. It is made clear that observations
made in granting bail to the applicant shall
not in any way affect the learned trial Judge
in forming his independent opinion based
on the testimony of the witnesses.
----------
(2024) 2 ILRA 1326
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Criminal Appeal No. 3 of 2019

Ajay Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Radhey Shyam Yadav, Sri Indra Sen Singh,
Sri Sachin Mishra, Sri Dileep Kumar (Sr.
Advocate)

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302, 404, 406, 420, 467, 468 &
471 - Code of Criminal Procedure, 1973 -
Sections 27, 173 & 313 - Indian Evidence
Act, 1872 - Section 27 - Appellant challenged
conviction under Sections 302, 404, 406, 420,
467, 468, 471 I.P.C. for murder of elderly couple
and unauthorized withdrawal from their bank
account. Court held: (1) Prosecution failed to
prove appellant's involvement in homicidal
deaths, as postmortem showed ante-mortem
injuries but no poisoning evidence contradicted
confession; viscera report negative for toxins
(Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622). (2) Recovery of deceased's
mobile from appellant unproven, as sole witness
(PW-1) turned hostile and no Section 27
disclosure St.ment existed (Pulukuri Kottaya Vs
King-Emperor,
AIR
1947
PC
67).
(3)
Unauthorized withdrawal of Rs. 6,70,000/- using
appellant's cheque leaflets from deceased's
account
established,
but
bank
officials'
complicity and Shahnawaj's role unexplained;
appellant's loss report and address change