Court No. - 64
Case :- APPLICATION U/S 482 No. - 36432 of 2019 Applicant :- Anil Kumar Mehrotra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Jai Shanker Malviya,Vimlendu Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Heard applicant's counsel as well as learned AGA for the State and perused the record.
Submission of the counsel is that though the allegations are that applicant is involved in a kind of bungling with regard to payment of arrears but that process of payment involved about eight responsible officers. The most anomalous feature involved in this regard is that all other persons who are involved in the hierarchy have been absolved and have not been made accused. Even still more anomalous feature is that one of the officers involved in the process of payment has himself become first informant as well as the inquiry officer in the preliminary inquiry conducted in this regard at the department level and by giving clearance to everybody else applicant has been made an escape root. It was also pointed out that in fact the only duty of the applicant in this process was to make entry of the details in the register which the applicant was required to maintain. Applicant had absolutely no power either to sanction the bill or to approve its payment. It has also been submitted that actually no evidence could be found which could suggest that applicant has received any benefit out of any such alleged fraud or has profited out of said bungling. It was also pointed out by the counsel that the kind of bungling that have been alleged in the present case relates to the year 2012-13 but similar kind of allegations have been made with regard to the year 2017-18 and 2016-17 also. In those matters applicant had already approached this Court wherein orders have been passed staying the proceedings against the applicant. Counsel in this regard has placed reliance upon Annexure No.11 towards the orders dated 18.12.2018 passed in Application U/s 482 No.46000 of 2018 (Anil Kumar Mehrotra Vs. State of U.P. and Another) and Application U/s 482 No.45933 of 2018 (Anil Kumar Mehrotra Vs. State of U.P. and Another). It was also pointed out that in the Court below the opportunity to argue on the point of charge was only a kind of eye wash and the procedural provisions in that regard have not been followed in letter and spirit which has resulted in the gross prejudice to the applicant and he has not been able to defend himself properly or to place any arguments seeking his discharge at the statutory stage of the same. In this regard counsel has tried to submit that on 20.5.2019 charge- sheet was submitted and cognizance was taken and as the applicant was in judicial custody and he was directed to be produced on 23.5.2019 but the authorities did not produce the applicant on that date. On the next date i.e. 7.6.2019 the applicant along with two co-accused was produced before the Court on which date he was not represented by any counsel but the Court passed the order that copies be supplied. The charges were framed on same day and the next date to produce the evidence was fixed. Submission is that this evolution of events would suffice to indicate that no reasonable opportunity to either engage the counsel was available there with the accused nor the applicant could be physically in a position to study the material proposed to be used against him in order to frame the charge against him. In such circumstances there was hardly any genuine occasion for him to defend himself properly on the point of framing of the charge. Submission is that malafides behind the prosecution and procedural flaw are apparent on the face of record and if the proceedings against the applicant are allowed to go on, it will result in the abuse of court's process.
Contentions raised at the bar require detailed hearing on law and facts both.
Notice on behalf of opposite party No.1 has been accepted by learned AGA.
Issue notice to the opposite party no.2 returnable within four weeks.
Opposite party no.2 may file counter affidavit within three weeks after the service. Learned AGA may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter.
List this matter immediately after expiry of the aforesaid period before the appropriate bench.
Till the next date of listing further proceedings of Case No. 4554 of 2019 (State of U.P. Vs. Anil Kumar Mehrotra and others) arising out of Case Crime No.1281 of 2018, u/s 409, 420, 467, 468, 471, 120B I.P.C., P.S.- Civil Lines, District Moradabad, with regard to applicant namely Anil Kumar Mehrotra, shall remain stayed.
Order Date :- 30.9.2019 shiv