Allahabad High Court
Salil Bargoti vs Union Of India And 2 Others on 6 July, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 91 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 17207 of 2021 Applicant :- Salil Bargoti Opposite Party :- Union Of India And 2 Others Counsel for Applicant :- Anil Kumar Tripathi,Arun Kumar Pandey Counsel for Opposite Party :- A.S.G.I.,Sanjay Kumar Yadav Hon'ble Samit Gopal,J.
Heard Sri Arun Kumar Pandey, learned counsel for the applicant, Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, appearing for the opposite party nos. 1 and 2 and perused the record.
This anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicant Salil Bargoti, seeking anticipatory bail, in the event of arrest in Criminal Case No.05 of 2021, under Sections 120B, 420, 467, 468, 471 I.P.C. (RC 3(E)/2006 EOW-I DLI (C.B.I. vs. Salil Bargoti and another), pending in the court of Special Judicial Magistrate (C.B.I.), Ghaziabad till trial.
The F.I.R. of the present case was lodged by Arun Tandon, Additional Director General, D.R.I. Mumbai, against eight companies, eight named persons and other unknown persons for the offences under Sections 120B/420, 467, 468, 471 I.P.C. and other substantive offences thereof in which the firm of the applicant stands at serial no. 4 in the list of accused firms/persons with the allegation of misuse of Duty Exemption Pass Book (DEPB) and Duty Exemption Entitlement Certificate (DEEC) Scheme by using forged Shipping Bills. The lead information was given by the Directorate of Revenue Intelligence regarding involvement of certain racketeers in the misuse of scheme after which the F.I.R. was lodged and the matter was investigated. In the F.I.R. in so far as the firm of the applicant is concerned, the allegation were that the said firm had obtained four DEEC Licences out of which two licences were utilized by them for imports at Chennai. No imports against the two other licences were noticed. The D.R.I., Chennai Unit had investigated the same against them covering the two imports licences which were utilized and show cause notice was issued by them on the ground of diversion of duty free import material in contravention of the provisions of DEEC Scheme and the Exim Policy. The said SCN has already been adjudicated by the Adjudicating Authority confirming the demand. Further in the light of the forged nature of Shipping Bills, the details were communicated to DRI, Chennai for further action at their end. The conclusion thus was that it appears that there was fraudulent availment of benefits under DEPBs and DEEC Schemes and there could be two gangs indulged simultaneously in forging DEPB and DEEC Shipping Bills. The gangs perpetrating DEEC Shipping Bills may be different than the gangs who were forging DEPB Shipping Bills. The matter was investigated and the charge sheet under Section 120B read with 420, 467, 468, 471 I.P.C. and other substantive offences thereof was submitted against the applicant and co-accused Vinayak Datta Ram Patkar only, copy of the said charge sheet is annexure no. 2 to the affidavit. In so far as the other four co-accused persons are concerned, they were not charge sheeted. The trial court vide order dated 2.3.2021 took cognizance upon the charge sheet against the applicant and the co-accused Vinayak Datta Ram Patkar and summoned them to face trial, copy of summoning order is annexure no. 3 to the affidavit.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is proprietor of M/s Krishna Handicrafts, T. Saket, New Civil Lines, Moradabad. The F.I.R. was lodged in the year 2006 on which the investigation concluded and a charge sheet dated 29.1.2021 was filed. The same is after 15 years of lodging of the F.I.R. Subsequently, the applicant has been summoned to face trial. It is argued that the applicant co-operated during the investigation and as such was not arrested. This itself is a sufficient assurance of the applicant co-operating in the trial and the matter is without any credible evidence. It is argued that lodging of the F.I.R. is an illegal act in itself since the matter relates to evasion of custom duty. The proper forum was of filing a complaint and not of an F.I.R. The Custom Act is a complete Code in itself and takes care of every eventuality during the course of business and as such proper remedy was to file a complaint and not lodging of an F.I.R.
It is argued that the Apex Court in the case of Siddharth Vs. The State of Uttar Pradesh and another, in its order dated 16.8.2021 passed in Criminal Appeal No. 838 of 2021, has in specific words, held that after filing of charge sheet the arrest of the accused is not needed. The same has, later on, been followed in various other cases and the case of the applicant is squarely covered by it.
Per contra, learned counsel for the C.B.I. vehemently opposed the prayer for anticipatory bail and argued that the firm of the applicant was involved in using forged Shipping Bills filed manually and thus claimed the benefit of Excise Duty. It is argued that the applicant had claimed that he had already made export to the tune of Rs. 31,956,588.00 (Three Crores Nineteen Lakhs Fifty Six Thousand Five Hundred and Eighty Eight only) against Advance Licence No. 2910000727 issued to them. He had submitted 18 Shipping Bills to the DGFT Authorities as a token of having already fulfilled the Export Obligation in respect of the said advance licences. 13 Shipping Bills were purportedly made from M/s Krishn Handicraft to M/s Catco 4975, Clark Howell, HWY, SW Site, 3J, College Park, GA-30349-681, USA. The custom house agent facilitated the import/export clearance of their consignment in consultation with custom authorities. The export consignment of the applicant were taken care by dealing shipping bills by which the export obligation in respect of advance licence has been shown to be fulfilled. The investigation reveals that no physical export has, in fact, taken place and false information was projected in the SBs like details of mate receipts. It is argued that the applicant has already submitted Bank Realization Certificate (BRCs) issued by J&K Bank and Syndicate Bank, Moradabad which mention that said BRC's are "Not yet realized" which means that no export proceeds were credited in the account of the Firm against purported exports shown against the shipping bills. The signature on BRC's have been proved by the concerned Bank officers. The bills of lading being six in number all dated 3.3.2001 purportedly issued by M/s Hapag Lloyd to the firm of the applicant have neither been issued by their company nor by their agent on behalf of their company. The said bills of lading are bogus documents. General Manager, M/s Forbes & Co. Ltd. used to issue bills of lading on their behalf also revealed that four bills all dated 19.3.2001 purportedly issued by their company, had neither been issued by their company nor have ever dealt with the export consignment of this firm nor bills of lading. The said documents are false documents. Various bills of lading were also found to be false documents. Total amount of about Rs. 17crore was received as export obligation and as such the custom duty to the said tune was lost to the State Exchequer.
Learned counsel for the C.B.I. has further argued that the case of Siddharth (Supra) is distinguishable on facts. The issue therein was related as to whether an accused has to be arrested as a prerequisite formality to take charge sheet on record or not in which the Apex Court held that it was no such requirement. It is argued that cognizance has been taken on the charge sheet on 02.3.2021, bailable warrants were issued against the applicant and then on 25.8.2021 non bailable warrants were issued against the applicant after which further on 12 dates non bailable warrants were issued and the applicant is absconding till date. It is further argued that the applicant has even filed a 482 Cr.P.C. application being Application U/S 482 Cr.P.C. No. 12708 of 2021 before this Court challenging the summoning order issued against him, which is pending disposal. It is further argued that the present matter thus relates to forging documents, using forged documents as genuine and thereby applicant committed cheating, conspiracy and other offences and as such lodging of the F.I.R. is maintainable and after investigation charge sheet has been submitted on which cognizance has been taken and the accused has been summoned to face trial. It is argued that thus the applicant does not deserve any sympathy from this Court and as such the prayer for anticipatory bail be rejected.
After having heard learned counsels for the parties and perusing the record, it is evident that the present F.I.R. has been lodged for cheating, using forged documents as genuine, forging documents and gaining undue monetary benefits thereby causing loss to the State Exchequer to the tune of about Rs. 17 Crores. The matter was investigated thoroughly and charge sheet has been submitted, on which cognizance has been taken by the concerned court. The applicant in spite of knowing of filing of charge sheet and order of cognizance and summoning and non-bailable warrants issued against him, is avoiding appearance before the trial court. The matter falls within the category of economic offence. The issue in the case of Siddharth (Supra) was different and does not arise in the present case as there was no effort by the investigating agency or any order passed by the concerned court to first arrest the applicant and then take charge sheet on record. In the present matter, charge sheet has been submitted on which cognizance has been taken and the applicant has been summoned to face trial.
Looking to facts and circumstances of the case, nature of accusation and gravity of offence and non bailable warrants repeatedly issued against him by the concerned court for ensuring appearance, I do not find it a fit case to release the applicant on anticipatory bail.
Accordingly, the present anticipatory bail application under Section 438 Cr.P.C. is rejected.
(Samit Gopal,J.) Order Date :- 6.7.2022/Naresh