The Criminal Petition was filed under Section 438 of Cr.P.C. praying to grant the anticipatory bail for the offences punishable under Sections 420, 409 IPC, in the interest of justice and equity. And thereby issue a suitable direction to the concerned Police authorities to release the petitioner on bail in the event of his arrest was allowed.
“Sec 409 of IPC: Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
The petitioner/ Suresh is the President of S.D.M.C. Government High School at Malla. During the year 2014-15, the Government released amount of 13,00,000/- for construction of two additional classrooms and another sum of 3,01,000/- for construction of a kitchen for the purpose of the midday meal. During the year 2015-16, Mehboob was the Head Master of the School. As per the Government circular, any amount more than 2,000/- cannot be drawn in cash under a self cheque and any payment above the said amount has to be made only through cheque, after obtaining bill/voucher. Inspite of the guidelines given in the circular, the petitioner/President of the School, illegally drawn a sum of `5,84,000/- for himself through twelve different cheques after obtaining the signature of the Head Master and misappropriated the funds released by Government. The said crime was registered against the petitioner for the offences punishable under Sections 409 and 420 of IPC.
Arguments before the Court
“Learned counsel for the petitioner in his argument submitted that even a reading of the complaint and accepting the same on its face value would lead to a great suspicion as to, whether the petitioner has committed the alleged act in violation of the alleged Government circular. The same would be the subject matter of trial. He further submits that even according to the complaint, the amount alleged to have been drawn by the petitioner was through cheques. Nowhere the complainant says that they were self cheques. Moreover, the amount was drawn by the joint signatures and not just by the petitioner alone. Further stating that the apprehension of the accused by the Investigating Officer for the purpose of the investigation is not warranted and that the petitioner Crl.P.No.200027/2020 would co-operate with the Investigating Officer in the investigation, the learned counsel for the petitioner prays for allowing the petition.”
“Learned High Court Government Pleader in his statement of Objections as well in his argument submitted that the investigation is still in progress and the Investigating Officer is yet to collect the evidence, as such, the petitioner does not deserve to be enlarged on bail.”
Decision of the Court
On an overview of a complaint and prima facie would show that the alleged misappropriation of funds and the alleged act of the petitioner attracting Section 409 and 420 would be through certain negotiable instruments, which even according to the prosecution, are not with the petitioner and are available with the Banker upon whom those cheques were drawn. There was also no contention from the prosecution that any of the materials or documents are in the custody of the accused and the same can be recovered only after arresting petitioner. As such, the petitioner was enlarged on bail under certain conditions.
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