IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Miscellaneous Application No. 244 of 2011 Yogendra Prashad ……… Applicant. Versus State of Uttarakhand and another ……… Respondents. Mr. Ajay Kumar Gupta, Senior Advocate with Mr. Aditya Singh, Advocate for the applicant. Mr. Rakesh Thapliyal, Addl. Advocate General with Mr. Vinay Kumar, Standing Counsel (Govt. of Uttarakhand) for the respondents. Date of Order: 17.03.2011 BARIN GHOSH, CHIEF JUSTICE A First Information Report resulted in investigation, which in turn has resulted in filing of a charge sheet. The charge sheet so filed is the subject matter of challenge in the present application made under Section 482 of the Code. 2. As it appears, the principal criminal element alleged is, alteration of Clause 5.03 (b) of the Agreement by the applicant. In course of hearing, it has been accepted that no change was effected to Clause 5.03 (b) of the Agreement. It is, however, the contention of the respondents that in the matter of implementation of the said Clause, the manner of implementation was altered. It has further been stated in the charge sheet that the necessity of certification of labour was done away with by the applicant and as a result, the accounts could not be coordinated. There is a further contention that the Deputy General Manager (Construction) paid Rs. 4 crores to the contractor on a bill of Rs. 9.26 crores on telephonic orders given by the applicant. Clause 5.03(b) authorized payment of labour bill to the extent of 20% of the work done on certificates. This was agreed to be paid on the basis of affidavits to be filed by the contractor. Prima facie, it appears that an affidavit itself, provided language of the affidavit is so couched, would tantamount to certification. 3. Be that as it may, there cannot be any conclusion in that regard at this stage. The matter must be gone in and decided at the trial. There is 2 no allegation that the applicant caused payment to be made in excess of what the contractor was otherwise entitled to under the contract. 4. Taking into account the aforesaid factors and also the fact that the Magistrate has taken cognizance on the charge sheet without noticing that although the allegation is alteration of Clause 5.03(b) of the Agreement, but in fact, no such alteration was made, it would be appropriate on the part of this Court to grant bail to the applicant. The applicant is released on bail upon personal bond, supported by two sureties of Rs. 25,000/- each to the satisfaction of the Trial Court. The applicant shall cause appearance before the Magistrate on 18th April, 2011, when the Magistrate shall fix a date for hearing the prosecution and shall give an opportunity to the applicant for seeking his discharge. In the event the Magistrate is of the view that the applicant has not been able to make out a case for discharge, then and only then, he can proceed further upon framing charges. 5. The application is, accordingly, disposed of. (Barin Ghosh, C.J.) 17.03.2011 Amit