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TMI Blog2021 (2) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated against the applicant by the Department. The enquiry proceedings is still under process. The determination of input tax credit wrongly availed has not been finally made by the Department and no order under section 83 of the C.G.S.T. Act for provisional attachment of any property including the bank account belonging to the applicant has been made. The order granting bail to the applicant has also not been challenged by the Department. 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 ₹ 4,51,00,000/- before the Department within three months while granting bail to the applicant, is unsustainable, as it is too harsh and unreasonable, particularly in the situation where enquiry/investigation is still pending and applicant has already deposited ₹ 5,00,00,000/-, out of disputed amount of ₹ 9,51,00,000/- - in order to save the Government revenue, the interest of justice would be served in case, the condition No. 4 of bail order dated 24.11.2020 is modified directing the applicant to submit security equivalent to remaining disputed amount of ₹ 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Goods and Services Tax Act, 2017 (herein-after referred to as C.G.S.T Act ) was served upon the applicant requiring his presence on 11.11.2020 at 14:00 hours before Senior Intelligence Officer, DGGI, Ghaziabad. The applicant appeared before the Authorities concerned on behalf of both the aforesaid firms and his statement under section 70 of C.G.S.T. Act was recorded on 11.11.2020. Main allegation against the applicant is that the four firms, namely, M/s Jain Polymer, M/s Keval Polymer, M/s Balaji Trading Company and M/s Sai Nath Plastics, which are supplier's firms of plastic scrap for both the aforesaid firms of the applicant, are not found in existence as per information of the Department. M/s LAN Engineering and Technologies and M/s Neelu Packing Industries have fraudulently availed input tax credit approximately, a sum of ₹ 9,51,00,000/- (Rupees nine crores fifty one lac only), out of which rupees six crore sixty lac for M/s Neelu Packing Industries and rupees two crore ninety one lac for M/s LAN Engineering and Technologies. After recording the statement of the applicant under section 70 of C.G.S.T. Act, he was arrested on 12.11.2020 in accordance with the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs dated 23.11.2020 addressed to Senior Intelligence Office, Group D, DGGI, Ghaziabad, Regional Unit, undertakings were given by the applicant with regard to disputed amount against the aforesaid firms of the applicant, by submitting that he has voluntarily deposited a sum of ₹ 1,50,00,000/- (Rupees one crore fifty lac only) on 21.11.2020 with regard to liability against M/s LAN Engineering and Technologies, NOIDA and ₹ 3,50,00,000/- (rupees three crore fifty lac only) on 21.11.2020 with regard to liability against M/s Neelu Packing Industries, against reversal of disputed ITC of IGST availed by him during the period April, 2018 to March, 2019 on the strength of supply made by M/s Jain Polymer, M/s Keval Polymer, M/s Balaji Trading Company and M/s Sai Nath Plastics, and assured that rest of the disputed ITC of IGST will be deposited within six months and he will fully cooperate with the investigation, copies of undertaking along with copies of Chalan have been brought on record as annexure-8 to the bail application. It is also pointed out by the learned counsel for the applicant that the applicant, after granting bail on 24.11.2020, has also given an undertaking on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Appeal No. 53 of 2021 decided on 19.01.2021. 9. In the case of Sandeep Jain (supra) the Apex Court held that: We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of ₹ 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of ₹ 2 lakhs. If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to his legal remedies provided by law. Similarly if the court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him, the court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants being admitted to bail, in terms of the order passed. 15. It appears that in the aforesaid facts and circumstances, the High Court passed the impugned order with the intention of protecting the interest of the complainant in the matter. In our considered opinion, the approach of the High Court was incorrect as under the impugned order a very unreasonable and onerous condition has been laid down by the Court as a condition precedent for grant of anticipatory bail. 13. In the case of Munish Bhasin (supra), the Apex Court has held that: 10. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Sessions Court would be justified in imposing freakish conditions. There is no manner of doubt that the court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. 11. The conditions which can be imposed by the court while granting anticipatory bail are enumerated in subsection (2) of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the court while imposing conditions must be exercised with utmost restraint. 12. The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution. 13. We also clarify that while granting anticipatory bail, the courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the court to ascertain whether accusation has been made with the object of injuring or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant that despite having paid ₹ 41 lakhs to the appellant pursuant to an agreement for purchase of agricultural land, the appellant has not executed the deed of sale in respect of the same. It appears that the complainant has also filed a civil suit for specific performance of the said agreement, which is pending adjudication. 4. By imposing the condition of deposit of ₹ 41 lakhs, the High Court has, in an application for pre-arrest bail under Section 438 of the Criminal Procedure Code, virtually issued directions in the nature of recovery in a civil suit. 5. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for realization of disputed dues. It is open to a Court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration, while considering an application for bail are the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uresh Kumar (supra), the petitioner prayed for setting aside the impugned notice, invalidation of search and seizure proceedings, refund or amount collected under duress and also challenged the simultaneous proceedings of investigation under section 67 of the C.G.S.T. Act having been commenced when already an audit under section 65 of C.G.S.T. Act is in progress and the issue in the said case was also regarding grant of opportunity of hearing before attachment of the bank account under section 83 of the C.G.S.T. Act, therefore the aforesaid case relied upon by learned counsel for opposite party No. 2 is distinguishable on facts and not applicable in the facts of present case. 19. In the case of Vikalp Jain (supra), the fact of the case was that the applicant was actively involved in evasion of G.S.T. to the tune of more than ₹ 94,00,00,00/- (rupees ninety four crore only) in violation of provisions of C.G.S.T. Act, 2017 and the applicant was released on bail subject to condition to deposit ₹ 1,00,00,000/- (rupees one crore only) within three months from the date of release on bail vide order dated 19.07.2019. In the said case, prayer was made to waive or reduce one o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to strike balance between the accused and prosecution. In the present case, it is admitted facts to the counsel for the parties that as on date out of disputed amount of ₹ 9,51,00,000/- (rupees nine crore fifty one lac only), the applicant has already deposited a sum of ₹ 5,00,00,000/- (rupees five crore only). 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. The enquiry proceedings is still under process. The determination of input tax credit wrongly availed has not been finally made by the Department and no order under section 83 of the C.G.S.T. Act for provisional attachment of any property including the bank account belonging to the applicant has been made. The order granting bail to the applicant has also not been challenged by the Department. 23. Considering the facts and circumstances of the case as well as averments as mentioned in paragraph 2 of the second supplementary affidavit dated 22.02.2021, this Court is of the view that condition No. 4 imposed by Special Chief Judicial Magistrate, Meerut directing the applicant to depo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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