Avinash Kumar Gautam vs State Of U.P.

1. Heard Mr. Akash Tyagi, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3. This application for bail has been filed by applicant Avinash Kumar Gautam seeking his enlargement on bail in Case Crime No. 05 of 2024, under Sections 7, 13 (1)(B), 13(2) of the Prevention of Corruption Act, 1988, Police Station-Anti Corruption, Meerut, District-Meerut during the pendency of trial.

3. At the very outset, the learned counsel for applicant submits that co-accused Abhishek Chand Kaushik has already been enlarged on bail by this Court by a detailed order of date passed in Criminal Misc. Bail Application No.22586 of 2024 (Abhishek Chand Kaushik Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:-

"1. Heard Mrs. Pooja Chand Dwivedi, the learned counsel for applicant and the learned A.G.A. for State opposite party 1.

2. Perused the record.

3. This application for bail has been filed by applicant Abhishek Chand Kaushik seeking his enlargement on bail in Case Crime No. 05 of 2024, under Sections 7, 13 (1) (B), 13 (2) of the Prevention of Corruption Act, 1988, Police Station-Anti Corruption, Meerut, District-Meerut during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 20.4.2024, a delayed F.I.R. dated 1.5.2024 was lodged by first informant Inspector Durgesh Kumar (Trap Team In-charge) and was registered as Case Crime No. 05 of 2024, under Sections 7, 13 (1) (B), 13 (2) of the Prevention of Corruption Act, 1988, Police Station-Anti Corruption, Meerut, District-Meerut. In the aforesaid F.I.R. two persons namely Abhishek Chand Kaushik (applicant herein) and Avinash Kumar Gautam applicant in connected bail application have been nominated as named accused.

5. The prosecution story as unfolded in the F.I.R. is to the effect that the complainant Neeraj Singh resident of NOIDA, District Gautam Buddh Nagar has an electricity connection at his residential premise. However, there was some irregularity in the electricity bills in respect of the electric connection installed at the residential premise of the complainant. The F.I.R., further, records that the present applicant, who is working as an Executive Assistant in Paschimanchal Vidyut Vitaran Nigam is alleged to have demanded a sum of Rs. 5000/- for getting the electricity bill of the complainant corrected. In view of above, a trap was laid on 30.4.2024 and applicant is alleged to have been caught red handed with bribe money of Rs. 5000/- cash in the denomination of Rs. 500/- currency notes. The chemical test regarding the recovery so made from the possession of the applicant is also against the applicant.

6. Learned counsel for applicant contends that even applicant is a named and charge sheeted accused, yet he is liable to be enlarged on bail. The applicant is a poor Class III employee and is working as an Executive Assistant in Paschimanchal Vidyut Nigam. Referring to the document occurring at page 20 of the supplementary affidavit dated 16.7.2024, it is urged by the learned counsel for applicant that since the load of electricity connection installed at the residential premises of the complainant was enhanced from 5 Kilowatt to 13 Kilowatt, therefore, applicant is not entitled to deal with such matter, as the applicant could only deal matters, where the sanction load is upto 9 Kilowatt. On the above premise, it is urged by the learned counsel for applicant that there cannot be any legal basis for the demand alleged to have been made by the applicant. Since, there is no basis of demand, therefore, recovery of money from the possession of applicant is of no consequence under the provisions of the Prevention of Corruption Act. To buttress his submission she has referred to the Constitution Bench judgement of the Supreme Court in Neeraj Datta Vs. State (NCT of Delhi) 2022 Online SC 1724. On basis thereof, she contends that merely on the basis of recovery so made from the applicant, provisions of Prevention of Corruption Act cannot be automatically attracted in the case of present applicant and therefore, no offence as complained of can be said to have been committed by the applicant. cannot attract the

7. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 30.04.2024. As such, he has undergone more than 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted on 26.4.2024. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during pendency of trial. On the above conspectus, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

8. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court, offence complained of is not only illegal but also immoral. In view of above, no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

9. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that though applicant is a named and charge sheeted accused, the recovery of Rs.5,000/- has been made from the possession of the applicant, the chemical test in respect of the recovery so made from the possession of applicant is also against applicant, yet the Court finds that in spite of the fact that the on the basis of document occurring at page 20 of the supplementary affidavit dated 16.7.2024, and as urged by the learned counsel for applicant that since the load of electricity connection installed in the residential premises of the complainant was enhanced from 5 Kilowatt to 13 Kilowatt, therefore, applicant is not entitled to deal such matters, as the applicant could only deal such the matters, where the sanctioned load is upto 9 Kilowatt. therefore, no demand of alleged bribery could have been raised by the applicant to deal with aforesaid matter, the ratio laid down by the Constitution Bench in the case of Neeraj Datta (supra) is squarely attracted in favour of applicant, therefore, in view of above, prima facie no offence under Sections 7, 13 (1) (B) and 13 (2) of the Prevention of Corruption Act can be said to have been committed by the applicant, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), as per the provisions contained in Chapter 6 of the U.P. Electricity Supply Code, that is a detailed mechanism provided for correction of Bills, however, the learned A.G.A. could not point out from the above that applicant is authorized to correct the bill, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

10. Accordingly, the bail application is allowed.

11. Let the applicant Abhishek Chand Kaushik be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

12. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above."

4. Record shows that in respect of an incident, which is alleged to have occurred on 30.4.2024, a delayed F.I.R. dated 1.5.2024 was lodged by first informant Inspector Durgesh Kumar (Trap Team In-charge) and was registered as Case Crime No. 05 of 2024, under Sections 7, 13(1)(B), 13(2) of the Prevention of Corruption Act, 1988, Police Station-Anti Corruption, Meerut, District-Meerut. In the aforesaid F.I.R. two persons namely Abhishek Chand Kaushik and Avinash Kumar Gautam (applicant herein) have been nominated as named accused.

5. Learned counsel for applicant contends that appliant is working as computer operator on contractual basis in Paschimanchal Vidyut Vitaran Nigam. By reason of above, applicant is entrusted with routine work of feeding bill in respect of electricity consumed by a consumer and therefore the electricity cannot be corrected by him independently without there being any order of the authority concerned under the U.P. Electricity Supply Code, 2005. During entire investigation, Investigating Officer has not recovered any such material on the basis of which the applicant was under a legal authority to correct the electricity bill of the complainant. He, therefore, contends that allegations made in the complaint are illusory. Even though, recovery of a sum of Rs.5000/- has been made from the person of applicant and the result of the chemical test qua the recovery made from the applicant is also in the negative, however, irrespective of above, applicant cannot be said to be guilty of committing an offence under Sections 7, 13 (1)(B), 13(2) of the Prevention of Corruption Act, 1988. Mere possession of money by itself is not an offence. Since, there is no basis for the alleged demand alleged to have been made by the applicant, therefore, no offence complained off can be said to have been committed by the applicant. Placing reliance of the order dated 19.03.2024 passed in Criminal Misc. Bail Application No.3979 of 2024 (Khyali Singh Alias Harswaroop Vs. C.B.I.). For ready reference, the same is reproduced hereinunder:-

"Heard Mr. Durgesh Kumar Singh, learned counsel for the applicant and Mr. Sanjay Kumar Yadav, learned counsel appearing on behalf of C.B.I.

The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. RC1202023A0008, under Sections 7, 7-A of Prevention of Corruption Act, 1988 along with Section 120-B I.P.C., Police Station CBI, ACB, District Ghaziabad, during the pendency of trial.

As per the prosecution case in brief, on the basis of written complaint dated 18.10.2023 of complainant Devendra Kumar, C.B.I. registered an F.I.R. being RC 1202023A0008 on 18.10.2023 alleging inter alia that it has been stated in the complaint that Durgesh Kumar Gupta, Manager, PNB, Sikandarpur, Khagi Branch, Sambhal and applicant ? Khyali Singh (private person) are demanding bribe of Rs. 20,000/- against 5% commission of the total KCC loan amount of Rs. 4 lacs in the joint name of complainant Devendra Kumar and his father Netra Pal.

It is argued by learned counsel for the applicant that the applicant is not a public servant within the meaning of Section 2(c) of Prevention of Corruption Act, 1988 as he happens to be a private recovery agent of the company ? M/s Bishen Fincap Consultant Pvt. Ltd., therefore, the provisions of Prevention of Corruption Act, 1988 are not applicable to the applicant. The prosecution has failed to discharge his statutory burden of proving both the demand and recovery as required under Section 7 of Prevention of Corruption Act, 1988. The recovery which alleged to be made of Rs. 7000/- is inconsistent with the purported demand of Rs. 20,000/-. The applicant does not hold the power and position to fulfill the request of complainant, hence there exists no justifiable reason for him to demand a bribe for an act, which cannot be undertaken by him. Lastly, it is submitted by learned counsel for the applicant that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 19.10.2023 having no criminal history to his credit and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.

On the other hand, Mr. Sanjay Kumar Yadav, learned counsel appearing on behalf of C.B.I. submits that tainted money was recovered from the right inner side pocket of the accused-applicant and on washing of the hands of applicants and his right inner side pocket, the milky solution of sodium bicarbonate turned to pink. He relying upon the judgment dated 20.02.2020 of the Coordinate Bench of this Court passed in R.E. Kil Roy Rocky Vs. State of U.P. and others (Criminal Revision No. 4447 of 2019) submits that the applicant is covered under the definition of public servant.

Having heard learned counsel for the parties and examined the matter in its entirety, I find that in the F.I.R. itself, the status of the applicant has been shown as a private person. So far as the judgment dated 20.02.2020 in the case of R.E. Kil Roy Rocky (supra) relied on behalf of the C.B.I. is concerned, I find that same is not helpful to the prosecution as the said case is distinguishable on the facts of this case. I also find that the case of the present applicant is distinguishable from the case of co-accused persons. It is well settled by the Hon'ble Supreme Court in the case of Ramesh Balkrishna Kulkarni Vs. State of Maharashtra, (1985) 3 SCC 606 that a "public servant" is an authority who must be appointed by Government or a semi-governmental body and should be in the pay or salary of the same. Secondly, a "public servant" is to discharge his duties in accordance with the rules and regulations made by the Government.

Here it would be relevant to mention that each case must be decided on its own facts and merit. Even one additional or different fact may make big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect.

Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.

Let the applicant-Khyali Singh Alias Harswaroop, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.

(ii) That 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.

(iii) That after his release, the applicant shall not involve in any criminal activity.

(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.

In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant.

It is made clear that the observations contained in the instant order are confined to the issue of bail only and shall not affect the merit of the trial."

6. Learned counsel for applicant contends that since applicant is working as a contractual employee in Paschimanchal Vidyut Vitaran Nigam. Therefore, he is not a public servant within the meaning of public servant as defined in the Prevention of Corruption Act, 1988. On the above premise and also for the facts and reasons recorded in the bail order of aforementioned co-accused, applicant is also liable to be enlarged on bail.

7. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 01.05.2024. As such, he has undergone more than 2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during pendency of trial. On the above conspectus, it is thus urged by the learned counsel for applicant that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

8. Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court, offence complained of is not only illegal but also immoral. In view of above, no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

9. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that though applicant is a named and charge sheeted accused, the recovery of Rs.5,000/- has been made from the possession of the applicant, the chemical test in respect of the recovery so made from the possession of applicant is also against applicant, therefore, no demand of alleged bribery could have been raised by the applicant to deal with aforesaid matter, the ratio laid down by the Constitution Bench in the case of Neeraj Datta (supra) is squarely attracted in favour of applicant, therefore, in view of above, prima facie no offence under Sections 7, 13 (1) (B) and 13 (2) of the Prevention of Corruption Act can be said to have been committed by the applicant, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), as per the provisions contained in Chapter 6 of the U.P. Electricity Supply Code, that is a detailed mechanism provided for correction of Bills, however, the learned A.G.A. could not point out from the above that applicant is authorized to correct the bill, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

10. Accordingly, the bail application is allowed.

11. Let the applicant Avinash Kumar Gautam be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

12. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 16.7.2024

Imtiyaz