Mr. Ram Niwas Gupta vs. Union Of INDIA

Second supplementary affidavit dated 22.03.2021 filed on behalf of the applicant is taken on record.

Heard Mr. Ramendra Pratap Singh, learned Advocate assisted by Mr. Alok Singh, learned counsel for the applicant and Mr. D.C. Mathur, learned counsel appearing on behalf of opposite party-Directorate General of G.S.T. Intelligence.

This application under section 439 (1)(b) of Code of Criminal Procedure has been filed by the applicant to quash/amend the condition Nos. 2 and 4 of the bail order dated 23.12.2020 passed by the Special Chief Judicial Magistrate, Meerut, whereby following conditions have been imposed upon the applicant while granting bail to him: “1- vfHk;qDr }kjk vadu iUnzg&iUnzg yk[k #i;s dh nks tekur o lkeku /kujkf'k dk futh ca/k i= nkf[ky djus ij tekur ij fjgk fd;k tk;sA nks tekufr;ksa esa ls ,d tekurh vfHk;qDr ds ifjokj dk utnhdh lnL; gksA 2- vfHk;qDr dks vknsf'kr fd;k tkrk gS fd ;fn og ikliksVZ /kkjd gks rks og viuk ikliksVZ vfoyEc U;k;;y; esa tek djk;sA 3- tekur ij NwVus ds i'pkr vfHk;qDr foHkkxh; tkap esa lg;ksx djsxkA foospuk esa dksbZ gLr{ksi ugha djsxkA 4- vfHk;qDr dks ;g Hkh vknsf'kr fd;k tkrk gS fd og vkbZ0 Vh0 lh0 dh 'ks"k /kujkf'k 3 ekg esa foHkkx esa tek djkdj U;k;ky; dks voxr

The brief facts of the case, which are relevant for the purpose of deciding this case, as submitted by the learned counsel for the applicant, are that the applicant is one of the Director of M/s Rama Civil India Contruction Private Limited. The applicant's company is engaged in business of undertaking various Government construction and infrastructure projects. It is the case of opposite party that applicant's company has availed Input Tax Credit by receiving supplies from six firms, which were having fake G.S.T. numbers and were not registered with the G.S.T. Department. On 02.12.2020, officers of G.S.T. Department searched the residential premises of applicant and after preparing panchnama, the applicant as well as his son were taken to their office situated in Kaushambi, Ghaziabad. The applicant being law abiding person cooperated with the investigation. On 02.12.2020 the statement of applicant was recorded by the officer concerned of G.S.T. Department and the applicant was forced to deposit a sum of Rs. 2,50,00,000/- (rupees two crore fifty lac only). The applicant was again summoned on 21.12.2020. On reaching the applicant in the office of G.S.T. Department, his statement was again recorded and he was compelled to deposit a sum of Rs. 1,50,00,000/- (rupees one crore fifty lac only) on 21.12.2020. Thereafter, the applicant was arrested on the allegation of evasion of Rs. 7,02,00,000/- (rupees seven crore two lac only). After arrest and before the production of the applicant before the court of Special Chief Judicial Magistrate, Meerut, the applicant has again deposited Rs. 1,50,00,000/- (rupees one crore fifty lac only) under protest. On 22.12.2020, the applicant moved his regular bail application under section 437 Cr.P.C., which was allowed on 23.12.2020 on the conditions mentioned above in paragraph No. 3. 5. Main substratum of argument of Mr. Ramendra Pratap Singh, learned Advocate appearing on behalf of the applicant is that out of 3 disputed amount of Rs. 7,02,00,000/- (Rupees seven crore two lac only), the applicant has already deposited a sum of Rs. 2,50,00,000/- (rupees two crore fifty lac only) on 02.12.2020, Rs. 1,50,00,000/- (rupees one crore fifty lac only) on 21.12.2020 and again before production of applicant before the concerned court below a sum of Rs. 1,50,00,000/- (rupees one crore fifty lac only) on 21.12.2020, totalling Rs. 5,50,00,000/- (rupees five crore fifty lac only) under duress and coercion on account of putting extreme pressure upon the applicant by the Department. It is vehemently urged by the learned counsel for the applicant that till date neither any criminal complaint has been filed nor any proceedings under section 73 or 74 of the C.G.S.T. Act, has been initiated against the applicant by the Department and enquiry proceedings is still under process. It is also submitted by the learned counsel for the applicant that since the determination of input tax credit wrongly availed has not been finally made by the Department and no order under section 83 of C.G.S.T. Act, 2017 for provisional attachment of any property including bank account belonging to the applicant has been made, therefore, the applicant cannot be directed and forced to deposit the remaining disputed amount of Rs. 1,52,00,000/- (rupees one crore fifty two lac only). It is next submitted by the learned counsel for the applicant that under the C.G.S.T. Act, there is no statutory provision for compelling the applicant to deposit the entire amount without completing the investigation/enquiry or without launching prosecution by filing complaint or without initiating any recovery proceedings under section 73 or 74 of C.G.S.T. Act. Much emphasis has been given that under Chapter XV, there is a complete procedure for demand and recovery, therefore, without following the same, the applicant cannot be compelled to deposit the entire disputed amount. It is submitted that any act done by the Department otherwise in due course of law as provided under C.G.S.T. Act, can be termed as illegal action. It is also pointed out by the learned counsel for the applicant that the applicant has deposited his passport before the concerned court below,

On the strength of aforesaid facts, it is submitted by the learned counsel for the applicant that condition Nos. 2 and 4 of the bail order dated 23.12.2020 is onerous and unreasonable under the facts of this case.

In support of aforesaid contentions, learned counsel for the applicant has placed reliance upon the following judgments of the Supreme Court:

Munish Bhasin & Others vs State (Govt. of N.C.T. of Delhi) & Another, 2009 (4) SCC 45,

Sumit Mehta vs State (N.C.T. of Delhi), 2013 (15) SCC 570,

Dilip Singh vs State of M.P. and another, Criminal Appeal No. 53 of 2021 decided on 19.01.2021. 9. Per contra, Mr. D.C. Mathur, learned counsel appearing for opposite party does not dispute the aforesaid factual aspect of the case as argued by the learned counsel for the applicant and submit that in case the applicant is ready to furnish a bank guarantee of remaining amount of Rs.

Considering the facts and circumstances of the case as well as averments as mentioned in paragraph 2 of the second supplementary affidavit dated 22.03.2021, this Court is of the view that condition No. 4 imposed by Special Chief Judicial Magistrate, Meerut directing the applicant to deposit remaining amount of ITC Rs. 1,52,00,000/- (rupees

In view of aforesaid facts and for the reasons stated above, the condition No. 4 of the bail order dated 24.11.2020 is modified to the extent as mentioned above. So far as condition No. 2 of bail order dated 23.12.2020 is concerned, liberty is granted to the applicant to move appropriate application seeking appropriate relief before the concerned court below in case of need of his passport. On moving such application by the applicant, the court concerned shall pass suitable order in accordance with law. On non-furnishing Bank guarantee by the applicant as per his undertaking before this Court, it is open for opposite party to move bail cancellation application.

Accordingly, the bail application under section 439 (1)(b) of the Code of Criminal Procedure, is disposed of in the aforesaid terms. Order Date :- 22.3.2021 Sazia