IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Original Jurisdiction Dated: Nainital : the 16th day of July, 2008 First Bail Application No. 235 of 2008 Order on the Bail Application: CRIMINAL SIDE Asrar Ahmed Siddique ……… Applicant / Petitioner Versus State of Uttarakhand …….. Respondent Arising out of Crime No. 48 of 2008 Under Sections: 409, 420, 467, 468 and 471 I.P.C. Police Station: Ranipur District : Haridwar __________________________________________________________ Hon’ble V.K. GUPTA, C. J. Mr. Navneet Kaushik, Advocate for the petitioner. Mr. G.S.Sandhu, Government Advocate for the State. Two cheques as per the following details were originally issued: (i) Cheque No. 480608 dated 12.01.2005 for Rs. 5980.00 (ii) Cheque No. 480616 dated 15.02.2005 for Rs. 5980.00 In the First Information Report, the allegation was that the petitioner who was the Head Clerk at the relevant time and one Anoop Singh had embezzled Rs. 62,30,000.00 in the following manner: With respect to first Cheque for the amount of Rs. 5980.00, Rs. 35, 980.00 was interpolated and with respect to the second Cheque for Rs. 5980.00, by pre-fixing the figure “620” interpolation was caused and the amount shown was Rs. 6205980.00. With respect to the first cheque the embezzlement amount was Rs. 30,000/- and with respect to the second cheque, the embezzled amount was Rs. 62,00,000/-. 2 In para no. 7 of the affidavit accompanying the Bail Application, the petitioner’s averment is that the respondents after alleging in the First Information Report about the embezzlement of Rs. 62,30,000/- actually reduced the embezzled amount to Rs. 6,44,000/- only. In para 9 of the counter affidavit filed by Sri Hoshiyar Singh, S.S.I., P.S.Ranipur, Haridwar, while replying to para 7 of the affidavit of the petitioner, it is admitted that during investigation it was found that the embezzlement took place of Rs. 6,44,806/- and Rs. 30,000/- respectively. Para 9 of the said Counter Affidavit filed on 1st April, 2008 and affirmed on 26.03.2008 is reproduced herein, which reads thus: “That in reply to contents of paragraph no. 7 of the affidavit, it is submitted that in the F.I.R. Rs. 62 lakhs have been shown as embezzled money while during investigation Rs.6,44,806/-and Rs. 30,000/- were found embezzled by the accused/applicant and other co-accused person.” Faced with the aforesaid discrepancy and incongruity, on 04.07.2008, this Court directed the respondent to file a supplementary counter affidavit. The supplementary counter affidavit has been filed in the Court today by Sri Hoshiyar Singh, S.S.I., P.S.Ranipur, which is taken on record. This affidavit is affirmed on 15.07.2008. As per the narration of this affidavit as given in para 3, the allegations made in the F.I.R. have been reiterated. As per para 4, however, it is stated that on 26.02.2005, the petitioner deposited Rs. 55,55,194.00 through Treasury Challans from out of the embezzled amount; adjusting this deposit and setting it off, the net embezzled amount comes to Rs. 6,44,806/- and Rs. 30,000/- respectively. Para 4 of the supplementary counter affidavit for ready reference is reproduced herein, which reads thus: “ That it is also pertinent to mention here that the accused/applicant has deposited Rs. 55,55,194/- through two treasury challans dated 26.02.2005 each, out of embezzled money of Rs. 62 lakhs and 30 thousand thus the rest of the amount which has been embezszled by the accused persons is Rs. 6,44,806/- and Rs. 30,000/-. It is also pertinent to mention here that the accused/applicant is main accused of this case and 3 he was head clerk at the time of embezzlement and was retired on 28.02.2008. A photocopy of treasury challans dated 26.2.2005 are being annexed herewith and marked as Annexure No. S.A.2 to this affidavit.” Para 5 of this supplementary counter affidavit is clinching piece of information. It says that the embezzlement committed by the accused should be treated Rs. 6,44,806/- and Rs. 30,000/- respectively. Para 5 reads thus: “That in view of the facts and circumstances, it is clear that the accused/applicant has committed embezzlement of Rs. 6,44,806/- and Rs. 30,000/-.” The view taken by the State is untenable. The State thinks that even though the initial embezzlement was to the tune of Rs. 62,00,000/- and Rs. 30,000/-, it got diluted later on, because the petitioner deposited Rs. 55,55,194/-. In my opinion, this approach of the State is not correct because irrespective of the fact that an accused pays a part of the embezzled amount subsequently, the embezzlement once effected remains valid for all times to come. Apparently, by diluting the embezzled amount, the prosecution perhaps is trying to help the accused in securing the bail. I do not approve of this action of the prosecution. Even while I am rejecting the bail application, I direct that a copy of the order be sent to the Director General of Police, Uttarakhand, with direction to him to get an enquiry held to find out the correct position and to initiate and complete action, if warranted. The bail application is rejected. (V. K. Gupta, C. J.) 16.07.2008 A