TMI Blog2022 (6) TMI 963X X X X Extracts X X X X X X X X Extracts X X X X ..... he submissions made by the learned Senior Advocate for the present applicant that the only material with the Investigating Officers, is the statement of co-accused, which may not be a basis, to implicate the present applicant, in the considered opinion of this Court, at this stage, the department based upon the material that had been collected by them, are inquiring/ investigating in the scam and whereas in the considered opinion of this Court, more particularly in view of the material shown to this Court by the learned Public Prosecutor, it could not be stated that the statements of the co-accused would be the only material which is available with the department. The submissions made by learned Senior Advocate for the applicant more particularly with regard to admissibility of the statement under Section 70 of the CGST Act would not be appreciated by this Court at this stage - in the considered opinion of this Court, this should not be the case where this Court would exercise discretionary jurisdiction under Section 438 of the Code of Criminal Procedure to release the present applicant on anticipatory bail - Application dismissed. - R/Criminal Misc.Application No. 18055 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pertinent to mention herein that the applicant had not remained personally present rather he had sent explanation along with documents vide communication as referred to hereinabove. It appears that the residential premises of the applicant had also been been searched in the interregnum on 01.08.2021. 5. Learned Senior Advocate would submit that since the applicant did not appear, the respondents had filed a complaint against the applicant under Sections 174 and 175 of the Indian Penal Code read with Section 70 of the GGST Act, 2017 and CGST Act, 2017. 5.1 Learned Senior Advocate would further submit that as such Section 70(1) of the CGST Act, inter alia empowers the proper officer to summon any person whose attendance is necessary to give evidence or to produce any document. Learned Senior Advocate would submit that the power to summons any person in an inquiry under Section 70 is as specified in the statute, equivalent to the powers provided to a Civil Court under the provisions of the Code of Civil Procedure, 1908. Learned Senior Advocate would thereafter refer to Section 136 of the CGST Act and would submit that a statement given by a person in response to a summons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubhai Patel was the person who was overall in- charge of the company and whereas the modus operandi of the scam was that the company i.e M/s Madhav Copper Limited would purchase fake invoices, without any actual physical movement of goods to M/s Madhav Copper Limited and the company based upon the fake invoices would make payment through banking challan to the supplier. It is further submitted that the amount paid would thereafter being re-routed to the persons in-charge of M/s Madhav Copper through Aagadia firms by way of cash. It is submitted by learned Public Prosecutor, relying upon certain confidential documents submitted to this Court that during search proceedings at the residential premises of one Afzal Sadiq Ali Savjani, various electronic devices were recovered. It is submitted that details of whats app chat have been retrieved from digital devices of the said Afzal Savjani and whereas the said details would show the money trade leading back to the present applicant. As a matter of fact according to learned Public Prosecutor based upon the documents, while Nilesh Patel was the overall in-charge of the company named M/s Madhav Copper Limited whereas it appears that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Limited had availed input tax credit to the tune of Rs.137.28 Crores. It also clearly appears from the said documents that the present applicant was also a prime beneficiary of the scam in question. In the considered opinion of this Court, when learned Co-ordinate Bench of this Court has thought it fit not to exercise its discretion in favour of a person who had almost similar or slightly lesser role than that played by the present applicant in the scam in question, then certainly this Court would not exercise its discretion in favour of the present applicant. Though many of the submissions before learned Co-ordinate Bench, have not been raised before this Court, yet, in view of the commonality of the facts, this Court deems it appropriate to refer to observations of the learned Co-ordinate Bench in decision dated 14.10.2021 in Criminal Misc. Application No. 17697 of 2021 more particularly paragraphs no. 30, 31, 33, 34, 35, 36 and 38 which are reproduced hereinbelow: 30. Thus keeping in view the aforesaid decisions rendered by the Division Bench of this Court, this Court would like to examine the facts of the present case. It is alleged by the prosecution that the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons and during the course of investigation, it is revealed that those 36 firms were dummy firms. Thus in the facts of the present case, the custodial interrogation of the applicants is necessary. 33. It is contended by learned advocate for the applicants that the maximum punishment prescribed for the alleged offences is five years and therefore even after the conviction, if the applicants are entitled to be released on bail then, at this stage also, they are entitled to be released on anticipatory bail. However, the said submission is misconceived. As observed hereinabove, the custodial interrogation of the applicants would be required in the facts of the present case. There are more than 700 transactions between the applicants and other persons of dummy firms and transactions worth of Rs.737.00 Crores were entered into between the parties. At this stage, this Court would like to refer to the order dated 17.04.2020 in No.1803/2020, passed Special wherein by the Leave to the Hon ble Hon ble Supreme Appeal (Crl) Supreme Court has passed following order: The allegation against the petitioner is that he has created about 555 fake firms and has committed fraud to the tune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular case. 36. Learned advocate, Mr. Mangukiya has placed reliance upon the recent order dated 07.10.2021 passed by the Hon ble Supreme Court in case of Satender Kumar Antil Vs. Central Bureau of Inveestigation Anr. in Special Leave to Appeal(Crl.) No.5191/2020. However, this Court is of the view that the Hon ble Supreme Court has laid down certain guidelines for the grant of bail in categories/types of offence. It is pertinent to note that the present offfence can be categorized as economic offence where huge public money in the form of alleged tax liability of Rs.137.00 Crores is involved. This Court has considered the seriousness of the charges and the fact that the applicants have not cooperated with the investigating agency though directed by one Hon ble Supreme Court and, therefore in the fact of the present case, the aforesaid order passed by the Hon ble Supreme Court would not be applicable. 38. In case of Sushila Aggarwal (supra), the Hon ble Supreme Court has observed and laid down the guidelines for considering the application under Section 438 of the Code. This Court has kept in view the said decision while considering the present case, this Court is of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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