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TMI Blog2017 (9) TMI 285X X X X Extracts X X X X X X X X Extracts X X X X ..... 6) of the Gujarat Value Added Tax Act, 2003 for which FIR came to be registered at C.R. No.I4 of 2016 with the CID (Crime) Ahmedabad Zone Police Station. 2. The broad facts of the case are; 2.1 The petitioners herein (except Mr Anil Kumar Chauhan i.e. the petitioner in Criminal Misc. Application No. 20340 of 2017 and Mr John Benedict who is the petitioner in Criminal Misc. Application No. 20344 of 2017, who are the authorized signatories of the Company) are Directors of Dharampal Satyapal Limited Company, having its registered Office at S.P Mukherjee Marg, NewDelhi, 11006. The Company, which is admittedly not made a party to the complaint has its units at Assam, Noida and UttarPradesh. 2.2 Eleven Consignment Sales Agents (for short 'CSA)and one individual were appointed as such from time to time in the State of Gujarat. Each of the said CSAs obtained their individual TIN number. 2.3 The controversy centers around the operation of business dealings on the basis of three statutory forms namely Form 'F', Form 'C' and Form 'H', which are, under the provisions of the Central Sales Tax Act; respectively used for the purpose of transferring the goods to branch of the Company without s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned counsel for the petitioners while referring to the said order as also the order passed in the case of Amit Pancholi by the lower Court and in the case of Ashok Jain by this Court. 2.8 It was next contended that in absence of Company being accused and in absence of the case of the investigator specifying as to which of the Directors were incharge and were in active control of the scam in question, the FIR itself was flawed. 2.9 It was next contended that in the FIR, no specific role, either against the Company or against its Directors is contemplated and the master minds are stated to be accused Nos. 22, 23 and 24 above referred, who have been admitted to anticipatory bail or regular bail. It was contended that it is not even whispered that any of the Directors of the Company were financially benefited out of the scam. It was also submitted that, it was not even alleged that refund of the tax was either received by any of the Directors of the Company or the Company and that the act of the Company in dispatching the goods in Form 'F' is not even questioned and thus it is argued that so far as the Company and its Directors are concerned, the dispatch of goods in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso submitted that full cooperation is given by the applicants so far in the course of investigation and the applicants would continue to cooperate with the Investigating Agency. Referring to various documents produced on record, it was contended that there was constant appearance by applicants / Company before the investigator whenever required and detailed explanation of the facts involved in the case was also given and on oath the deposition was made and without prejudice and with a view to get released various documents as also to see that the accounts of the Company freezed by the officials concerned are defreezed and business is revived under those accounts, a sum of more than 100 crores allegedly assessed has already been deposited with the concerned taxing agency and the appeal against such assessment is pending. 2.16 Learned Public Prosecutor submitted that the entire scam was noticed on 19.01.2016 when a godown and other places of CSAs were raided. It was contended that the FIR is not the only relevant document since it only puts the criminal machinery into motion and that other documents are also required to be considered. Referring to the modus operandi of the scam, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted that the tax liability without interest and penalty may come to about Rs. 240 crores. 2.18 Learned APP also submitted that the custodial interrogation of the petitioner is necessary since the author of fictitious creation i.e. Rajendra Keshwani has outrightly denied his role in the scam. It was submitted that custodial interrogation without protection from this Court, to disinter the above referred aspects made out by the investigator would benefit the investigation. Reliance has been placed upon State represented by CBI vs. Anil Sharma reported in (1997) 7 SCC 187 to emphasise the necessity of custodial interrogation. Reliance has also been placed upon in the case of State of Orissa and ors. vs. K Srinivasa Rao, reported in AIR 2001 SC 1701. 2.19 It was contended that names of the petitioners figured in the FIR itself, and therefore, the Court having noticed such fact indicated that the said accused i.e. the Directors were neither being proceeded against though named in the FIR, nor there was any clean chit given to them and that thus the Investigating Agency had maintained blissful silence qua them in the matter of investigation and that they were being given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the involvement of the Directors in the scam. 2.22 It was contended that the cases of those admitted either on anticipatory bail or regular bail and the case of the petitioners herein is not comparable in as much as their role is different and that their exact role can be known during the custodial interrogation and that the Court itself drew the distinction between the two set of accused by stating that the petitioners before it were hounded whereas red carpet treatment was given to accused Nos. 1 to 9 who even according to the State are the principal accused. It was contended that this fact itself distinguishes the two cases and no parity can be claimed. 2.23 It was also pointed out that the main consideration for admitting father of Vishesh Jain to anticipatory bail was the voluntary deposit of the tax money by Vishesh Jain, and therefore also, the said case cannot be compared with the facts of the present case. It was also submitted that there were striking dissimilarities between cases on which parity is claimed and the case of the petitioners herein. Reliance has been placed upon in the case of Dineshkumar Vasudev Nayak vs. State of Gujarat reported in (2003) 2 GLH 274 more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual capacity but as Directors of the Company afore stated. The FIR avers the commission of the offence particularly by the Company by allegedly employing dubious method for avoidance of the tax as above stated. The Company, however, is not made a party to the proceedings and the FIR does not specify as to which of the nine Directors of the Company had played an active role. In this context, it would be relevant to refer to Sections 85 (1)(b)(c)(e)(f)(g), 85 (2)(g), 85(4) and Section 85(6) of the Gujarat Value Added Tax Act, 2003 (for short 'VAT Act'), which deal with the procedure in relation to the offences by Company etc. The person incharge of the affairs of the Company at the time of commission of the offence and who was responsible to the Company for the conduct of its business is the person, who is deemed to be guilty of the offences; along with the Company. FIR contains averments in general against the directors and no other material is shown in agreement with above referred provision is placed on record of the case or shown to this Court. 2.27 That apart, the petitioners are sought to be charged with offences under Sections 85(1)(b),(c),(e), (f),(g) as also Section 85(2)(g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... numbers that they operated. It is not the case of the Investigating Agency that the petitioners aided in obtaining such TIN numbers possessed by the 11 or 12 CSA agents. Admittedly, Form 'C' and 'H' were not issued by the petitioners and admittedly in some of the cases, refund was claimed by other accused person/s and not the petitioners herein. There is also no material with the Investigating Agency demonstrating even indirect benefit to the petitioners. It will be relevant to note that definition of dealer contained in Section 2(10) of the GST Act makes the dealer which would include CSA responsible for tax and the material has been produced on record indicating the movements of goods subsequent to issuance of Form 'F' by the CSAs and not the petitioners. The needle of suspicion is, therefore, rightly directed by the investigator against the said dealers and in absence of strong suspicion, sufficient enough to divert such needle of suspicion to the Company or its Directors, it is not possible at this stage to say that if the dealer turns out to be fake, the Company or its Directors would be beneficiaries as argued by the learned PP. 2.28 It is also not disputed that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the like amount on the following conditions that they shall: (a) cooperate with the investigation and make themselves available for interrogation whenever required; (b) remain present at the concerned Police Station on 06.09.2017 between 11.00 a.m. and 2.00 p.m.; (c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer; (d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change their residence till the final disposal of the case till further orders; (f) not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide the same on merits; 5. Despite this order, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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