Rajasthan High Court - Jaipur
Pankaj Aggarwal S/O Shri Hari Prakash ... vs Union Of India (2024:Rj-Jp:41047) on 25 September, 2024
Author: Ganesh Ram Meena
Bench: Ganesh Ram Meena
[2024:RJ-JP:41047]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 8451/2024
Pankaj Aggarwal S/o Shri Hari Prakash Agarwal, Aged About 42
Years, R/o D-48, First Floor, Old Gupta Colony, Vijay Nagar,
Delhi-110009 (Accused Confined In Central Jail, Jaipur)
----Petitioner
Versus
Union of India, Directorate Of Goods And Service Tax, Jaipur
Zone Unit, Rajasthan, through Special PP
----Respondent
For Petitioner(s) : Mr. Ramanuj Sharma alongwith
Mr. A.K. Seth &
Mr. Chinmaya Seth
For Respondent(s) : Mr. Ajatshatru Mina, Special Public
Prosecutor
Ms. Apeksha Tiwari Mr. Swadheen Singh Mr. Himanshu Kala Mr. M. Jeenwal HON'BLE MR. JUSTICE GANESH RAM MEENA Order 25/09/2024
1. This bail application has been filed by the accused petitioner u/S 483 BNSS in connection with a case F.No. DGGI/INV/GST/ 123/ 2023-Gr. F.0/oADG- DGGI- Jaipur, registered at Directorate General of Goods and Service Tax Intelligence, Jaipur Zonal Unit, Jaipur for the offence punishable under section 132(1)(b) (c), (f), (l) of the Central Goods and Service Tax Act, 2017 (for short 'the Act of 2017').
2. The facts in brief of the matter are that a case F.No. DGGI/INV/GST/ 123/ 2023-Gr. F.0/oADG- DGGI- Jaipur, was registered at Directorate General of Goods and Service Tax Intelligence, Jaipur Zonal Unit, Jaipur for the offence (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (2 of 22) [CRLMB-8451/2024] punishable under section 132(1)(b) (c), (f), (l) of the Act of 2017 on the basis of statement of one Ashutosh Gupta recorded under section 70 of the Act of 2017 wherein it has been stated that the accused petitioner has created fake firms and has issued goods/ invoices and has pass on the input tax credit which is prescribed under section 16 of the Act of 2017, and therefore, the contravention of said provision is an offence under section 132 of the Act of 2017.
3. During the course of investigation, notice was issued to the accused petitioner for recording his statement and also to submit the documents under the provision of section 70 of the Act of 2017.
4. The complaint was filed under section 190 of the Code of Criminal Procedure, 1973 for offences punishable under sections 174 and 175 IPC stating that the accused petitioner is neither appearing for recording his statement and nor submitting the documents in pursuance of notice issued to him. The said complaint was filed on 02.09.2024 before the concerned Magistrate and requested to take cognizance.
5. After arresting the petitioner and making investigation, the Enforcement Officer Goods and Service Tax Directorate, Jaipur Unit, Jaipur submitted the complaint before the Special Court against the accused petitioner for the offence punishable under section 132(1) of the Act of (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (3 of 22) [CRLMB-8451/2024] 2017 stating that in the statements of one Ashutosh Garg recorded on 31.10.2023 and 1.11.2023 during investigation of case number registered at DGGIJZU bearing No. F. F.No. DGGI/INV/GST/ 123/ 2023-Gr. F.0/oADG-ZU- Jaipur. In the aforesaid statements he is said to have that he has created 70-80 fake firms and given to one Anil Garg and the accused petitioner- Pankaj Aggarwal in lieu of Rs.5 lakh each and he is further said to have stated that he used to file the return, however, accused petitioner Pankaj Aggarwal used to issue the invoices of scrap, hosiery, paper products etc. and on the basis of his statements, investigation was started and during investigation Anil Garg is said to have admitted this fact that he has issued the fake invoices in the names of seven firms so as to pass on input tax credit amount amounting to Rs. 1032 crore.
6. Accused petitioner Pankaj Aggarwal is said to have appeared for recorded his statement under section 70 of the Act of 2017 and he is said to have stated that he used to issue fake invoices to pass on the input tax credit on a commission of 0.10 percent.
7. The search was made and various documents related to fake firms were recovered from certain premises. Certain What's Apps also said to have been taken on record to substantiate the allegations against the accused petitioner. It is also stated in the complaint that the statements of Ravi (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (4 of 22) [CRLMB-8451/2024] Kumar who is said to be the employee of the accused petitioner was also recorded and so also the statement of one Manish Tayal. It is also alleged that certain documents were also recovered from the Laptop of Ahusosh Gupta in the name of Pankaj Bhaiya alleged to be present petitioner who is also said to have substantiated the allegations against the accused petitioner. The documents were also recovered on 09.12.2023 while making search at the premises and one Ravi Kumar said that all these documents are related to the accused petitioner. It is also alleged that Manish Tayal and Ravi Kumar were working for the accused petitioner. During investigation, statements of one Jatin Gupta were also recorded on 2.2.2024 who is also said to have substantiated the allegations against the accused petitioner.
8. After investigation it is said to have found that the accused petitioner issued fake invoices without actual transfer of goods so as to pass on the inputs tax credit and for that purpose he has created 49 fake firms. It is also alleged that on the basis of the investigation and statements of certain witnesses given voluntarily, the allegations against the accused petitioner for the offence under section 132(1)(b)(c)
(f)(l) of the Act of 2017 is found proved and the said offence is cognizable and non-bailable one with the averments that the accused petitioner has evaded GST amounting to Rs.215.67 crores.
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9. Learned counsel appearing for the accused petitioner submits that the complaint against the accused petitioner was filed on 20.06.2024 and investigation was commenced on 16.11.2023. He further submitted that the accused petitioner was arrested on 23.04.2024 and since then he is behind the bars. Counsel further submits that the offence alleged to have been committed by the accused petitioner is compoundable u/S 138 of the Act of 2017 and maximum sentence provided is five years. Counsel also submits that Ashutosh Garg on whose statements this case has been registered, has been granted bail by Hon'ble Supreme Court. Counsel further submits that a complaint has already been filed u/S 190 CrPC and further there is no provision of supplementary complaint, therefore there is no scope of further investigation available in law. Counsel also submits that till date no calculation and names are brought on record to show the amount of ITC actually availed by beneficial users or the amount of ITC taken as refund by beneficial users, therefore, no evidence of loss to the Government Exchequer is brought on record. Counsel further submits that no evidence is made part of the complaint to show prime facie that ingredients of Section 132(1) are fulfilled. Counsel also submits that no recovery of any amount has been made from the accused petitioner since the start of investigation. Counsel further submits that there is no (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (6 of 22) [CRLMB-8451/2024] concept of fake registration of any firm as GST registration is provided to the firms u/S 22-30 of the CGST Act after proper verification of documents and premises. He further submits that ITC can only be utilized after due verification as per Section 16-21 and Section 49(A) of the CGST Act, 2017. Counsel also submits that refund can only be granted after following the due procedure given u/S 54-58 of the CGST Act read with CGST Rules. Counsel further submits that no offence was committed in Jaipur and the Metropolitan Magistrate (Economic Offences) has no jurisdiction to take cognizance and try the case as per the provisions of BNSS, 2023 or CrPC 1973. Counsel further submits that the accused petitioner did not supply any goods or services under the CGST Act, 2017 and he was involved only in financial transactions. He also submits that the detention of the accused petitioner was illegal and the prosecution had not taken any transit remand. Counsel also submits that Ravi Kumar has filed complaint against DGGI Officials for assault. Counsel further submits that all the witnesses are government officers and they cannot be influenced and the objection raised by the prosecution is merely on the basis of assumption and presumption. He also submits that being an economic offence, all data is in electronic form, therefore there is no chance of tampering or destruction of data. (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (7 of 22) [CRLMB-8451/2024] Counsel of the accused petitioner further submits that the prosecution has adopted the pick and choose policy. The prosecution has to rely upon the complete document or to reject it. Counsel also submits that the private persons, whose statements were recorded were not made witnesses in the complaint dated 20.06.2024 and DGGI cannot repy upon them and also the vediography of the statements relied upon was not made. Counsel also submits that the aadhar cards, PAN cards and cheque books & digital signatures were recovered from the PG accommodation and not from the residential premises which were also not made part of the complainant. Counsel also submits that there is no any case pending against the accused petitioner, specially any PMLA matter. Counsel further submits that the trial of the case has not even started and it may take long time, therefore the accused petitioner may be released on bail.
10. In support of his submissions, counsel appearing for the accused petitioner has placed reliance upon following judgments:-
1. Ashutosh Garg Vs. Union of India [Petition (s) for Special Leave to Appeal (Crl.) No(s). 8740/2024], decided on 26.07.2024.
2. Abhishek Singhal Vs. Union of India (S.B. Criminal Misc.
Second Bail Application No. 14211/2011), decided on
11.11.2021.
3. Babulal Qazi Vs. Union of India (S.B. Criminal Misc. Bail Application No. 12786/2022), decided on 13.02.2023. (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (8 of 22) [CRLMB-8451/2024]
4. C. Pradeep Vs. The Commissioner of GST and Central Excise Selam & Anr. [Petition (s) for Special Leave to Appeal (Crl.) No(s). 6834/2019], decided on 06.08.2019.
5. Gaurav Singhal Vs. Union of India, reported in (2024) 19 Centax 479 (All.), decided on 29.05.2024.
6. Laxman Chaudhary Vs. Union of India (S.B. Criminal Misc. Bail Application No. 16422/2021), decided on 06.10.2021.
7. Manish Sisodia Vs. Directorate of Enforcement (MANU/SC/0861/2024), decided on 09.08.2024.
8. Mohd. Shadab Kadri Vs. Union of India (S.B. Criminal Misc. Bail Application No. 2299/2022), decided on 06.04.2023.
9. Nikhil Gupta Vs. Union of India alongwith connected matter (S.B. Criminal Misc. Second Bail Application No. 17510/2022).
10. P. Chidambaram Vs. Directorate of Enforcement (MANU/SC/1670/2019), decided on 04.12.2019.
11. Ratnambar Kaushik Vs. Union of India Petition for Special Leave to Appeal (Crl.) No. 10319/2022, decided on 05.12.2022.
12. Ravindra Kumar Vs. Union of India & Anr. alongwith connected matters (S.B. Criminal Misc. Second Bail Application No. 2937/2022), decided on 08.02.2023.
13. Rishabh Jain Vs. State of Rajasthan & Anr. (S.B. Criminal Misc. Bail Application No. 10718/2023), decided on 04.12.2023.
14. S.R. Sukumar Vs. S. Sunaad Raghuram (MANU/SC/0703/2015), decided on 02.07.2015.
15. Saurabh Jindal Vs. Union of India alongwith connected matter (S.B. Criminal Misc. Bail Application No. 14791/2022), decided on 16.12.2022.
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16. Shri Mohammed Ali Akram Khan Vs. Union of India & Anr.
(S.B. Criminal Misc. Bail Application No. 13860/2022), decided on 06.04.2023.
17. Tarun Jain Vs. Directorate General of GST Intelligence (Bail Appln. 3771/2021 & Crl.M.A. 16552/2021), decided on 26.11.2021.
18. Vikas Bajoria Vs. Union of India (S.B. Criminal Misc. Bail Application No. 17349/2022), decided on 06.01.2023.
19. Vineet Gupta Vs. Union of India (S.B. Criminal Misc. Bail Application No. 7162/2023), decided on 20.07.2023.
Counsel for the accused petitioner in support of his submissions has placed reliance upon a Circular No. F.No. CBIC-20001/2/2022-GST, issued by the Government of India, Ministry of Finance, dated 06.07.2022.
11. Mr. Ajatshatru Mina Learned Special Public Prosecutor while opposing the submissions of learned counsel for the accused petitioner submits that the petitioner and Sh. Anil Kumar are the key person in the matter and they have purchased and operated some of the fake firms from Sh. Ashutosh Garg. They are also running their own syndicate of fake firms. Sh. Sanket Gupta, accountant of Sh. Ashutosh Garg has stated in his statements dated 16.311.2023 and 17.11.2023 that date found in "Pankaj bhaiya ledger" folder in laptop of Sh. Ashutosh Garg recovered from the premises of Sh. Sanket Gupta, Accountant of Sh. Ashutosh Garg, belong to the accused petitioner whose mobile No. is 99991xxxxx. The accused petitioner has been examined and (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (10 of 22) [CRLMB-8451/2024] it was found to contain large number of firms who have purchased bills from fake firms operated by Sh. Ashutosh Garg.
Learned Special PP further submits that Sh. Ashotosh Garg admitted to issuing fake invoices from 294 fake firms being run by him. Sh. Ashutosh Garg admitted to passing on fake ITC of about 1032 Crore from him 294 fake firms. Sh. Ashutosh Garg was arrested on 02.11.2023. Learned PP also submits that the petitioner voluntarily accompanied Sh. Sanket Gupta, Accountant of Sh. Ashutosh Garg, when Sh. Sanket Gupta was summoned by his office. Accordingly, the petitioner was summoned by SIO on 17.11.2023 and his statement was recorded on the very same day. During statement the accused petitioner stated taht he used to work as broker for cash withdrawal from RTGS kdone by fake firm handlers. Sh. Ashutosh Garg used to issue fake invoices form his firms and when he needed to withdraw cash from his fame firm's accounts, he used to contact the petitioner, who then arranged importer's account numbers, to which Sh. Ashutosh Garg sent RTGS and took cash from the importer. The petitioner used to charge 10% commission on the said transactions. Thus, the accused petitioner has accepted that he was involved in managing RTGS and cash for fake firms of Sh. Ashutosh Garg. (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (11 of 22) [CRLMB-8451/2024] Learned Special PP further submits that during the statement, the accused petitioner requested that he was feeling tired, therefore another summons dated 17.11.2023 was issued by SIO to appear on 18.11.2023. The petitioner appeared in the office to tender his statements on 18.11.2023. However, he left the office premises abruptly without completing his statement on 18.11.2023. The petitioner left his two mobile phones in the DGGI, JZU office, Jaipur, which were immediately seized under Panchnama dated 18.11.2023 under the belief that the same may contain crucial information pertaining to ongoing investigation in the case. After forensics examination of the aforesaid phones of the petitioenr under Panchnama dated 20.11.2023 by Digital Forensics Evidence Examiner of M/s Systools Software Pvt. Ltd., large incriminating data regarding various firms was found in whatsapp chats of Sh. Pankaj Aggarwal. Identity of various persons, GST registration certificates, bank cheque etc. were shared in the chats with various persons. These chats indicates creation of fake firms, issuance of invoices from them as well as circulation of money through bank account of these firms.
Learned Special PP also submits that various searches u/S 67(2) of the CGST Act were conducted at the registered premises of various firms which were available in various chats and appeared to have been created and (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (12 of 22) [CRLMB-8451/2024] managed by the accused petitioner. It has been observed that the said firms were non-existing firms and there is no business activity in the said firms and no person was available at that premises. Hence, these firms are said to be fake firms which were created and managed by accused petitioner. It was also observed that Sh. Ravi Kumar and Sh. Manish Tayal are the key persons/accomplices of the petitiner for operating/managing the fake firms. It was also observed that Sh. Ravi Kumar is director/authorized signatory/proprietor in 11 of these firms and Sh. Manish Tayal is director/authorized signatory/proprietor in 6 of these firms.
Learned Special PP further submits that during search at the office premises of the petitioner, it revealed that the said premises was owned by Sh. Hari Prakash Aggarwal, father of the petitioner. Some more documents of fake firms were also seized from the said premises, which were found in the whatsapp chats of Sh. Pankaj Aggarwal which corroborate the fact that Sh. Pankaj Aggarwal was running his fake firms racket from the said premises. On perusal of the said documents, it was observed that the said documents were fabricated as in the various PAN Cards and Aadhar cards, holder's photo was same but person name, Aadhar number, PAN number were different.
Learned Special PP further submits that the statements of accomplices of the petitioner i.e. Ravi Kumar, (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (13 of 22) [CRLMB-8451/2024] Sh. Jatin Gupta were recorded wherein they have stated that the petitioner is involved in creation and operation of various fake firms. Various summons have also been issued to other persons i.e. Sh. Manish Tayal, Smt. Shalini Tayal wife of Sh. Manish Tayal, Sh. Om Prakash Jha, Smt. Kiran wife of Sh. Ravi Kumar involved in the case but they have not appeared to tender their statement till date.
Learned Special PP in support of his submissions placed reliance upon following judgments:-
1. Anil Kumar Vs. Union of India (S.B.. CMBA No. 6318/2024), decided on 31.07.2024.
2. Sh. Ashish Goyal Vs. Union of India (S.B. Criminal Misc.
Bail Application No. 4376/2024), decided on 12.09.2024.
3. Vishal Agarwal Vs. Union of India (S.B. Criminal Misc. Bail Application No. 4259/2024), decided on 12.09.2024.
4. Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pallu Yadav & Anr., reported in (2004) 7 Supreme Court Cases 528, decided on 12.03.2004.
5. Prahlad Singh Bhati Vs. NCT, Delhi & Anr., reported in (2001) 4 Supreme Court Cases 280, decided on 23.03.2001.
6. Y.S. Jagan Vs. Central Bureau of Investigation, reported in (2013) 7 Supreme Court Cases 439, decided on 09.05.2013.
7. Smt. Chhaya Devi Vs. Union of India & Anr. (Criminal Misc. Bail Application No. 15190/2021), decided on 13.04.2021.
12. Considered the submissions and perused the material made available on the record.
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13. On consideration of the submissions, it is found that the present case has been registered by the Department on the basis of the statements of one Mr. Ashutosh Garg and the Department has relied upon the statements of Mr. Ravi Kumar, Mr. Jatin Gupta, Sanket Gupta and Mr. Anil Kumar. Along-with the complaint, the prosecution has submitted the list of witnesses (Annex.A), where only 5 Officers of the Department have been made witnesses and none of the persons named above, whose statements recorded under section 70 of the Act of 2017, have been incorporated as witnesses to the matter.
14. It is a settled law that until and unless these above- named persons are made witnesses or accused, their statements cannot be relied upon because it is the right of the accused to cross-examine the witnesses to prove the trustworthiness of their version.
15. The allegation against the accused petitioner is that he has created certain fake companies and has also borrowed some fake companies from Mr. Ashutosh Garg in the names of non-existing persons, got registered with the forged identity documents and thereafter issued fake invoices said to have been issued in the names of such fake firms so as to pass on the input tax credit which is to be claimed by a person or firm in whose favour such fake invoices have been generated without there-being any actual transaction of (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (15 of 22) [CRLMB-8451/2024] goods or service. It is also submitted that several forged documents have been recovered from the premises of the petitioner including forged Aadhar Cards and PAN Cards in the names of the non-existing persons.
16. Section 132 of the Act of 2017 reads as under:-
"Section 132. Punishment for certain offences.-
(1) 1 [Whoever commits, or causes to commit and retain the benefits arising out of, any of the following offences], namely:-
(a) supplies any goods or services or both without issue of any invoice, in violation of the provisions of this Act or the rules made thereunder, with the intention to evade tax;
(b) issues any invoice or bill without supply of goods or services or both in violation of the provisions of this Act, or the rules made thereunder leading to wrongful availment or utilisation of input tax credit or refund of tax;
(c) avails input tax credit using the invoice or bill referred to in clause (b) or fraudulently avails input tax credit without any invoice or bill;]
(d) collects any amount as tax but fails to pay the same to the Government beyond a period of three months from the date on which such payment becomes due;
(e) evades tax 3 [****]or fraudulently obtains refund and where such offence is not covered under clauses (a) to
(d);
(f) falsifies or substitutes financial records or produces fake accounts or documents or furnishes any false information with an intention to evade payment of tax due under this Act;(Downloaded on 26/09/2024 at 09:26:19 PM)
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(g) obstructs or prevents any officer in the discharge of his duties under this Act;
(h) acquires possession of, or in any way concerns himself in transporting, removing, depositing, keeping, concealing, supplying, or purchasing or in any other manner deals with, any goods which he knows or has reasons to believe are liable to confiscation under this Act or the rules made thereunder;
(i) receives or is in any way concerned with the supply of, or in any other manner deals with any supply of services which he knows or has reasons to believe are in contravention of any provisions of this Act or the rules made thereunder;
(j) tampers with or destroys any material evidence or documents;
(k) fails to supply any information which he is required to supply under this Act or the rules made thereunder or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; or
(l) attempts to commit, or abets the commission of any of the offences mentioned in clauses (a) to (k) of this section, shall be punishable-
(i) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine;
(ii) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds two hundred lakh rupees but does not exceed five hundred lakh (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (17 of 22) [CRLMB-8451/2024] rupees, with imprisonment for a term which may extend to three years and with fine;
(iii) in the case of any other offence where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds one hundred lakh rupees but does not exceed two hundred lakh rupees, with imprisonment for a term which may extend to one year and with fine;
(iv) in cases where he commits or abets the commission of an offence specified in clause (f) or clause (g) or clause
(j), he shall be punishable with imprisonment for a term which may extend to six months or with fine or with both. (2) Where any person convicted of an offence under this section is again convicted of an offence under this section, then, he shall be punishable for the second and for every subsequent offence with imprisonment for a term which may extend to five years and with fine. (3) The imprisonment referred to in clauses (i), (ii) and (iii) of sub-section (1) and sub-section (2) shall, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, be for a term not less than six months.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under this Act, except the offences referred to in sub-section (5) shall be non- cognizable and bailable.
(5) The offences specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section shall be cognizable and non-bailable.
(6) A person shall not be prosecuted for any offence under this section except with the previous sanction of the Commissioner.
(Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (18 of 22) [CRLMB-8451/2024] Explanation .- For the purposes of this section, the term " tax " shall include the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or refund wrongly taken under the provisions of this Act, the State Goods and Services Tax Act, the Integrated Goods and Services Tax Act or the Union Territory Goods and Services Tax Act and cess levied under the Goods and Services Tax (Compensation to States) Act."
17. The offence in regard to preparation of forged documents is not covered under section 132 of the Act of 2017. In view of the provisions of Section 132 of the Act of 2017, the only allegation levelled against the accused petitioner is that he issued fake invoices in the names of fake firms without there-being actual transactions of goods or service so as to pass on the input tax credit.
18. During the course of arguments, when a query was put to the learned Special PP, on instructions from the Officers of the Department, stated that they have not lodged any criminal case in regard to the forged documents seized from the premises of the accused petitioner during search because the Department has no jurisdiction to make investigation in regard to the offences regarding preparation and possession of the forged documents.
19. The allegation against the accused petitioner is that he has issued fake invoices so as to pass on the input tax credit which has caused huge loss to the economy by evasion of GST.
(Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (19 of 22) [CRLMB-8451/2024] The investigation is continuing for the last more than one year and the complaint has already been filed against the accused petitioner. The Department has not been even able to find out that how much input tax credit has been claimed by which of the beneficiaries. During the course of arguments, on a query put- forth by the Court, the learned Public Prosecutor on instructions stated that in cases registered under section 132 of the Act of 2017, the Competent Authority can continue the investigation for a maximum period of five years. He on instructions of the Department Officers also stated that in the present case, they will conclude the investigation within maximum further one year.
20. After completion of investigation, the complaint has already been submitted against the petitioner on the basis of evidence collected during the investigation. Learned Special PP also submitted that the evidence as regards the other co- accused and the details about the beneficiaries of ITC is still under investigation and the same shall be submitted before the competent Court.
21. Once a complaint has been filed on the basis of investigation made by the prosecution, in a criminal jurisprudence no further evidence collected, can be used against such an accused person.
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22. Learned Special PP has also relied upon various judgments wherein the alleged input tax credit is less than the input tax credit of this case, in those cases the bail applications of the accused therein were rejected.
The present case was registered on the basis of statement of Mr. Ashutosh Garg, who is also said to have been involved in the evasion of GST by creating fake invoices in the names of fake firms to pass on input tax credit. The amount of alleged input tax credit wherein Mr. Ashutosh Garg is found involved, is more than the alleged input tax credit. Mr. Ashutosh Garg has been ordered to be released on bail by the Hon'ble Apex Court vide order dated 26.07.2024 in case of Ashutosh Garg(supra).
23. The maximum punishment for the offence alleged against the accused petitioner is five years and presently the accused petitioner has already suffered the custody of five months.
24. The alleged offences, as per the provisions of law, are compoundable.
25. Learned Special PP has also shown his apprehension that if the accused petitioner is released on bail, he may influence or temper with the prosecution witnesses. The complaint has already been submitted qua the accused petitioner wherein there are only five prosecution witnesses, as per the list of witnesses and they all are the (Downloaded on 26/09/2024 at 09:26:19 PM) [2024:RJ-JP:41047] (21 of 22) [CRLMB-8451/2024] Officers of the Department. It is unfortunate that the Department itself is apprehending the influence of the accused petitioner over their own Officers. There is no evidence on record to substantiate their apprehension and also the dignity and honesty of the Officers of the Department cannot be questioned and that too by the Department itself without there-being any incriminating evidence.
26. As per the record, statements of certain persons have been recorded under section 70 of the Act of 2017, substantiate the allegations against the accused petitioner and they have retracted their statements and have also submitted complaints against the Officers of the Department with certain allegations.
27. The investigation started in the Month of July 2023, as per the statement made by the learned Special Public Prosecutor but even after passing of more than a year, the Department has not been able to submit before the Court that how many persons/ firms are the actual beneficiaries of input tax credit and how much amount each on the basis of fake invoices alleged to have been issued by the accused petitioner in the name of fake firms. Unless this could be ascertained, the allegation against the petitioner that because of his acts, there is evasion of Rs.215.67 Crore, cannot be accepted.
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28. Taking into consideration over all the facts and circumstances of the case and the findings and the observations stated above, this Court without expressing any opinion on the merits and demerits of the case deems just and proper to release the accused-petitioner on bail.
29. Accordingly, bail application of accused-petitioner namely; Pankaj Aggarwal s/o Shri Hari Prakash Agarwal is allowed and it is directed that the accused- petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand only) each to the satisfaction of the trial Court with the stipulation that he shall appear before the trial Court or any other Court to which the matter is transferred, on all subsequent dates of hearing and as and when called upon to do so.
30. The accused petitioner shall not leave India without prior permission of this Court.
(GANESH RAM MEENA),J Sharma N.K./ Dy. Registrar (Downloaded on 26/09/2024 at 09:26:19 PM) Powered by TCPDF (www.tcpdf.org)