TMI Blog2020 (2) TMI 620X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Courts should be not to grant stay against arrest because investigation might require custodial interrogation as well. This court is not to be guided only by the fact that apart from IPC, offence under U.P. Act is also said to have been committed which requires notice to be issued to the accused and in totality of the matter this Court finds that there is no genuine ground to grant relief of anticipatory bail to the accused-applicant in this matter. Looking to the aforesaid fact, taking into consideration the gravity of accusation, and there being possibility of his fleeing from justice, without expressing any opinion on the merits of the case, this Court does not find good ground for enlarging the applicant on anticipatory bail in this case. The anticipatory bail application is rejected. - Criminal Misc Anticipatory Bail Application U/S 438 CR.P.C. No. - 1337 of 2020 - - - Dated:- 7-2-2020 - Dinesh Kumar Singh-I, J. For the Applicant : Anil Prakash Mathur For the Opposite Party : G.A. ORDER 1. Heard Sri Anil Prakash, learned counsel for the applicant, and Sri B.A. Khan, learned A.G.A. for the State. 2. This anticipatory bail applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him by the name of Govind Enterprise and that he was an advocate also in the firm. In the said room, no documents/books related to the firm were found except one computer and a laptop and printer were kept which Sri Mahavir Singh disclosed that they did not have any data relating to Govind Enterprise and also stated that there were several forms related to his advocacy. At the time of raid, two persons were found working on the computer who disclosed that they were working in respect of the accountancy of the said advocate and that there was no place/go-down to keep stock. The entire work of Govind Enterprise used to be done from its Kanpur located branch/godown and that all the related books of account were kept at the branch located at Kanpur. Therefore, simultaneously, Chandrashekhar, Deputy Commissioner Range-C, Commercial Tax also conducted raid/inspection of Kanpur Branch of the said firm on 27.9.2018 and at that time Mukesh Sharma son of Ram Kumar Sharma was found present, who was labour contractor of the Agarwal Industries. At the time of inspection, the owner of the said flat Sri Indrapal was also contacted, who disclosed that the said shop was taken by him on rent thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard supply, no e-way bill was down loaded. In enquiry, it was found that Govind Enterprises had supplied material worth ₹ 35,02,28,642.00 through 295 e-way bill as per rules which were supplied to the companies/traders. The both of the applicant s firm were generated from the address given of Kanpur in the name of the supplier company/traders i.e. Motaz Enterprises Pvt. Ltd. (U.P.) and several other suppliers who have been named in the FIR along with GST Registration number. During enquiry, it transpired that the nature of account of the applicant s firm was saving bank account which was opened in Oriental Bank of Commerce, village and post Aurangabad, Mathura which appeared account no. 04672121008171. When the said account was enquired then it was found that the same was being run from 27.8.2009 and till 16.11.2018 only ₹ 6448.00 were found available in that account and that between 27.8.2009 to 26.11.20018, the total amount deposited was shown as ₹ 3,73,389.00 and the whole outlet is shown worth ₹ 4,00,017.00. After enquiry of this account, it has been concluded that the economic condition of the applicant s firm was extremely limited for last ten years an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, it is mentioned that the business is being shown to have been run from two places, and if those places be taken into consideration particularly their geographical situation as well as their size, it was not possible to do such huge business. During enquiry, at Fazalganj Branch, the owner of the property clearly admitted that neither he knew the applicant nor had he given his premises for running the business by the name of Govind Enterprises. Therefore, when the said declared branch never existed, question does not arise of keeping the account books there and it was found that Govind Enterprises did not exist at its main place of business rather the purchased items appeared to have been sold somewhere else on the basis of bogus document. Further, it is mentioned that the bank account of the applicant s firm is saving bank account which got opened in Oriental Bank of Commerce, village post Aurangabad, Mathura, account number of which is 04672121008171, which proves that the economic capability of the applicant was extremely limited because the total balance amount in the said account stood at ₹ 6848/- only and that no transaction was done from the said account. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary affidavit, learned counsel for the applicant has drawn the attention to the rent deed executed between Mahavir Singh and the applicant which is annexed at pages 6-7 of the S.A. relating to one office in front of Anaj Mandi Gate No.1, NH-2, 1st Floor, Kosi Kalan area 12 ft x 16 ft given on rent to the applicant at the rate of ₹ 1,000/- per month for a period of 11 months. He has also drawn attention towards the pages 8-9 of the said supplementary affidavit which is an agreement to take property on rent executed between Indrapal Yadav and the applicant's firm through applicant by which house no. 101, Fazalganj, Kanpur Nagar is shown to have been given on rent at the rate of ₹ 7,000/- per month to the applicant. He has also drawn attention to page 12 to 36 which are being stated to be the papers pertaining to GST amount. He has drawn attention towards pages 46 onward which are stated to be the GST return filed by the applicant's firm and on the basis of the documentary evidence, he has stated that no amount of tax evasion has been assessed by the prosecution side and yet FIR has been lodged which is illegal and in such situation he needs to be granted antic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue underlying principle being the higher standard of proof in criminal cases. In our opinion, therefore, the yardstick would be to judge as to whether allegation in the adjudication proceeding as well as proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case it is found on merit that there is no contravention of the provisions of the Act in the adjudication proceeding, the trial of the person concerned shall be in abuse of the process of the court. 46 . A learned Single Judge of the Bombay High Court had the occasion to consider this question in a case under the Foreign Exchange Regulation Act in Criminal Application No. 1070 of 1999 (Hemendra M. Kothari vs. Shri W.S. Vaigankar, Assistant Director, Enforcement Directorate (FERA), Govt. of India and State of Maharashtra), decided on 25.04.2007 and on a review of large number ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act. 8. He has also placed reliance upon the judgment rendered in Chitira Builders P. Ltd. Vs. Addl. Commr. Of C, C.E. S.T. Coimbatore, 2013 (31) S.T.R. 515 (Mad.) in which it has been held; that collection of ₹ 2.00 crores by the Department from, petitioner-company during search conducted, cannot be held to be valid even though it had been stated on behalf of the Department that a sum of ₹ 2.00 crores had been collected from the petitioner-company,, voluntarily, in respect of its Service Tax liability, it has not been shown by the Department that the petitioner was liable to pay Service Tax to the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch and every communication or order could be construed as a show cause notice. For this reason the above argument of the revenue must fail. 10. Further, it is held in this judgment that a show cause notice is a mandatory requirement for raising demand. Communications, orders, suggestions or advices from the Department would not be deemed to be a show cause notice because a specific show cause notice indicating the amount demanded and calling upon the assessee to show cause if he has any objection to such demand, was necessary. 11. He has further placed reliance upon the judgment rendered in Akhil Krishan Maggu vs. Dy. Dir. D.G. of GST Intelligence, 2020 (32) G.S.T.L. 516 (P H), in which it has been held that power to arrest has to be resorted in exceptional cases with full circumspection and summons are served to record statement are complied with then mandate of sections 41 and 41A of Cr.P.C. should be taken care of. 41. When police may arrest without warrant -(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) who commits, in the presence of a police officer, a cognizable offence; (b) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice. Arrest Power to arrest When to be exercised- Section 69 and 132 of Central Goods and Services Tax Act, 2017.- power of arrest should not be exercised at the whims and caprices of any officer or for the sake of recovery or terrorizing any businessman or create an atmosphere of fear, whereas it should be exercised in exceptional circumstances during investigation , which illustratively maybe : (I) a person is involved in evasion of huge amount of tax and is having no permanent place of business, (ii) a person is not appearing in spite of repeated summons and is involved in huge amount of evasion of tax, (iii) a person is a habitual offender and he has been prosecuted or convicted on earlier occasion, (iv) a person is likely to flee from country , (v) a person is originator of fake invoice, i.e.,invoices without payment of tax, and (vi) when direct documentary or otherwise con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, by submitting false information and documents have been clearly spelled out because a bogus firm was got registered by showing false bogus addresses of business, and, by taking advantage of registration, inward e-way bills were generated to make purchase of goods worth ₹ 35.00 odd crores and, thereafter without generating outward supply bills, huge amount of money was deposited in cash in undisclosed bank account, suggesting that goods were sold without proper documentation, with a view to evade taxes. In such view of the matter, the Division Bench of this Court has not found the case fit for quashing the FIR and dismissed the same after observing that power of staying arrest is not to be exercised mainly in the matters relating to economic fraud and therefore finding this to be an economic fraud, it had declined to stay the arrest. 14. I have gone through the evidence of the present case and also judgment of the Division Bench of this Court dated 30.5.2019 and also have gone through case laws which have been provided by the learned counsel for the applicant above, I find that this is not to be a fit case in which indulgence of granting anticipatory bail should be exe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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