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TMI Blog2024 (4) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... he I.P.C. in this case. Thus, the ratio of the Division Bench Judgment in the case of G.S. Oils Ltd. s [ 2012 (10) TMI 1274 - BOMBAY HIGH COURT ] is squarely applicable to the present facts of the case. The said Judgment in G.S. Oils Ltd. s case specifically refers to the I.P.C. offences U/s. 406 and 420, as well as, to Section 74(2) of the MVAT. In this view of the matter, it is not necessary to refer to the ratio in Gagan Sharma s case [ 2018 (10) TMI 1832 - BOMBAY HIGH COURT ] which was in respect of a different statute altogether. In this particular case, investigation and the prosecution under both the enactments i.e. the MVAT and the I.P.C. can go on simultaneously. The ingredients of section 74(2) of the MVAT, as well as, Sections 420 and 406 of the I.P.C. are clearly made out. Evasion of the tax is of a huge amount. There is no acceptable justification offered by the applicant. His custodial interrogation is necessary to trace all these transactions. Besides this, the offence is quite grave and serious; considering the amount involved. In this view of the matter, no protection U/s. 438 of the Cr.p.c. can be granted to the applicant. The Application is rejected. - SARANG V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st CAN Enterprises; as a corporate debtor. Shri. Saraogi submitted that, these proceedings are still going on and a huge amount is due and payable by that entity to the present applicant. That was the reason why the applicant could not make the payment of the tax; as alleged in the F.I.R. Therefore, the F.I.R. against the applicant was not legal. Shri. Saraogi further submitted that, MVAT is a complete code in itself. There is a special procedure prescribed under the said Act and, therefore, registration of the F.I.R. under the Cr.p.c. and applicability of Sections 406 and 420 of the I.P.C. was not permissible under the law. In any case, from the allegations in the F.I.R., neither Section 420 of the I.P.C. nor Section 406 of the I.P.C. is made out. Nobody was cheated and was induced into parting with the property; as required under section 420 of the I.P.C. Similarly, there was no entrustment to the applicant and, therefore, Section 406 of the I.P.C. is also not made out. The provisions of the Indian Penal Code could be applied only if the allegations in that behalf were different from the offences prescribed under the Special Act. Whenever there is a conflict between the I.P.C. an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inducement in parting with property are made out, as far as, Section 420 of the I.P.C. is concerned. Apart from that, the money which was taken from these entities was misappropriated by the applicant. Therefore, the offence U/s. 406 of the I.P.C. is also made out. Learned APP further submitted that the investigation has revealed that the applicant had filed returns up to the year 2014 and, thereafter, even the returns were not filed. The figures mentioned in the F.I.R. are taken from the captured data and the other figures upto the year 2014 are taken from the returns filed by him. The applicant has not made payment of any tax and thus, the offence U/s. 74(2) of the MVAT, as well as, U/s. 406 and 420 of the I.P.C. are clearly made out. 6. In support of her submissions, she relied on various judgments, as follows: (i) State of Uttar Pradesh Versus Aman Mittal and another (2019) 19 Supreme Court Cases 740 . She contended that, it is held in this Judgment that, dismissal of Special Leave Petition does not mean that the order of the High Court which is challenged in the S.L.P. is merged with the Supreme Court s order and that it becomes the Supreme Court order. She further submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law involved in this case. Narayan K. Patodia s case (supra) was in respect of the investigating agency conducting the investigation. In that case, there was a direct reference to Section 403 of the I.P.C. and Section 88(6) of the West Bengal Sales Tax Act, 1994. There is no specific mention of I.P.C. in MVAT, therefore, the observations in the said case are not applicable to the present case. 8. I have considered these submissions. For ready reference, Section 74(2) of the MVAT can be reproduced as under: 74. Offences and penalty. (1) ----- (a) .. (b) .. (c) .. (d) .. (e) .. (f) .. (g) .. (1A) (i) .. (ii) . (2) Whoever wilfully attempts in any manner whatsoever to evade any tax leviable under this Act or payment of any tax, penalty or interest under this Act shall on conviction be punished with rigorous imprisonment which shall not be less than three months but which may extend to one year and with fine. 9. Under Section 76 of the MVAT the offences under that Act were bailable. Therefore, question of grant or refusal of anticipatory bail would arise only if Sections 406 and 420 of the I.P.C. are made applicable in the present case. 10. The F.I.R. and the investigation carried out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re non standard and for tampering with or altering any standards, secondary standards or working standards of any weight or measure. That Act did not foresee any offence related to cheating as defined in section 415 of the I.P.C. or the offences under sections 467, 468 and 471 of the I.P.C. Since such offences were not punishable under the provisions of that Act, therefore, the prosecution for such offences could be maintained since the trial of such offences is not inconsistent with any of the provisions of that Act. This observation of the Hon ble Supreme Court is squarely applicable to the present case; as the MVAT does not provide any punishment for such offences, as Sections 420 and 406 of the I.P.C. 12. The same Judgment of Aman Mittal s case (supra) discussed Gagan Sharma s case (supra) in the context of dismissal of special leave petition. In paragraph-24 of Aman Mittal s case (supra), it was held that, dismissal of the special leave petition does not amount to merger of the order of the High Court with the order passed in the special leave petition. 13. In Narayan Patodia s case (supra) the Hon ble Supreme Court had dealt with the question of continuation of investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned Single Judge held in paragraph-8 as under: As far as the ingredients of offence punishable under Section 406 and 409 of the Indian Penal Code are concerned conceptually, a dealer like the applicant would act as an agent of the Government for recovering the tax and depositing it with the latter. It would thus tantamount to creating a relationship of a principal and an agent between the Government and the dealer. If the dealer is supposed to recover the tax it would come with a consequential liability to credit it to the Government. In my considered view it is in this manner prima facie the applicant can be said to be entrusted with the money which he was liable to pay to the Government but has failed to do so. This particular observation squarely covers the present case before this Court. The learned Single Judge has held that the dealer like the applicant acted as an agent of the Government for recovering the tax and depositing it with the latter. It would thus tantamount to creating a relationship of a principal and an agent between the Government and the dealer. There was an ingredient of entrustment, as well. 15. As a result of the above discussion, I am of the opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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