Gujarat High Court
Hitendra Chandrakant Shah vs State Of Gujarat on 6 December, 2023
NEUTRAL CITATION
R/CR.MA/16639/2023 JUDGMENT DATED: 06/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 16639
of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HITENDRA CHANDRAKANT SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR SHUBHAM JHAJHARIA(10231) for the Applicant(s) No. 1
MS CM SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 06/12/2023
ORAL JUDGMENT
1. Rule. Learned APP waives service of rule for the
respondent State.
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2. By this application, under Section 438 of the Code of
Criminal Procedure, the applicant - accused seeks anticipatory
bail in connection with the offence being FIR
No.11191011220168 of 2022 registered with DCB Police Station,
Ahmedabad for the offence punishable under Sections 409, 420,
465, 467, 468, 471, 120-B and 34 of the Indian Penal Code.
3. The facts of the FIR in nutshell are that present applicant -
accused with the connivance of other accused as named in the
FIR with a view to obtain the financial benefits in the form of
input tax credit illegally opened the GST Account on the basis of
the false and fabricated documents. It is also alleged in the FIR
that the said dummy accounts were used by using false
documents / bills for obtaining financial benefits from the
government exchequer illegally. It is also alleged in the FIR that
on the basis of the forged and fabricated documents the
applicant-accused had made some rent agreement and opened
up the bank account and thereby got registration of the GST
Number and created a dummy firm to obtain the input tax
credit. Thus, the applicant-accused with the aid of other accused
persons created bogus GST Account on the basis of dummy
documents and by creating forged and bogus bills obtained
financial benefits through his known persons without there
being actual business and thereby created bogus bills and
obtained input tax credit and caused financial loss to the
government exchequer.
4. On filing of the FIR, the applicant - accused preferred
application before the learned court below seeking anticipatory
bail which came to be rejected. Thus, the present application is
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preferred seeking pre-arrest bail in connection with the aforesaid
offence.
5. Learned Advocate for the petitioner would submit that
petitioner is innocent and has not played any active or passive
role in obtaining the false input tax credit. He would further
submit that for the alleged period of committing offence, he was
behind the bar in some other offence being
F.No.DGGI/AZU/GRC/12(4)/291/2020-21 lodged before the
learned Additional Chief Metropolitan Magistrate, Ahmedabad
and this Court has released the applicant on regular bail as per
order dated 29/07/2022 passed in CR.MA No.3931 of 2022 in
connection to the said offence which indicates that present
applicant was not involved in the huge scam of getting input tax
credit illegally. He would further submit that no allegations are
levelled against the petitioner in the FIR and / or during the
offence anything has been revealed against the petitioner.
Merely, on the basis of statement of co-accused, the applicant
came to be involved in the offence. He would further submit that
on bare reading of the FIR, at the most, offence under Sections
132(1)(B) of the GST Act is made out, however, just to add the
severity of punishment and gravity of offence, the prosecution
has purposefully added various offences punishable u/s 409,
420, 465, 467, 468, 471, 120-B and 34 of the Indian Penal Code.
Thus, to harass the petitioner, after receiving information from
the GST Officer, the Police has filed the FIR in question which is
something unusual on the part of the prosecution. It is
submitted that petitioner is ready and willing to co-operate with
the investigation and thus no custodial interrogation is required.
By making above submissions, it is prayed to grant pre-arrest
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bail to the applicant.
6. On the other hand, learned APP has vehemently opposed
the bail application by submitting that the petitioner is wanted
accused. He acted hand in gloves with the main accused and in
connivance with the other accused as named in the FIR and
taken advantage of the documents of some other persons and
made GST registration of firms and then without the actual
selling or purchasing indulged into in preparing bogus bills and
obtained false input tax credit and as such committed the
offence as alleged in the FIR to the tune of Rs.1500 Crore. She
would further submit that this is the offence against the public
exchequer and huge amount has been involved in the offence.
The petitioner in the aid of other accused cheated and siphoned
of the huge amount by availing bogus input tax credit. She
would submit that even prior to the present FIR, the applicant is
found involved in identical offence, whereby it was alleged that
siphoning of Rs.185 Crore is involved in availing the bogus input
tax credit by preparing bogus bills. Thus, the present petitioner
is habitual offender and by identical modus operandi and
cheating the government by using the false documents. Thus,
she would submit to dismiss the present application.
7. Having heard the learned Advocates appearing for the
respective parties and having perused the FIR, as also the facts
coming from the affidavit filed by the IO, it prima facie surfaces
allegation of scam of availing bogus input tax credit on the basis
of forged documents. The public exchequer has been cheated. It
also appears that upon documents of some other persons
registration of the GST has been made to avail false input tax
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credit. Bogus bills are also prepared for the same and thus the
present applicant has played an important role in commission of
the offence of economic nature. It also surfaces that money is
transferred from one account to another account and such huge
loss has been caused to the government exchequer by the
petitioner. Hence, serious economic offence is made out against
the petitioner, which has wide effect on the society. Thus, the
petitioner has failed to make out a case to allow this application
and grant of pre-arrest bail. No case is made out to exercise the
judicial discretion in favour of the applicant-accused. There is no
whisper to indicate that petitioner has been falsely implicated in
the offence.
8. To be noted that, this is an economic offence having huge
magnitude needs to be viewed with different approach and to be
considered seriously, as it is eroding economic death of the
country. In Nimmagadda Prasad Versus Central Bureau Of
Investigation [2013 (7) SCC 466], the Hon'ble Apex Court in
paragraph 23 to 25 has observed as under:
"23. Unfortunately, in the last few years, the country has been
seeing an alarming rise in white-collar crimes, which has
affected the fiber of the country's economic structure.
Incontrovertibly, economic offences have serious repercussions
on the development of the country as a whole. In State of
Gujarat V/s. Mohanlal Jitamalji Porwal and Anr. (1987) 2 SCC
364 this Court, while considering a request of the prosecution
for adducing additional evidence, inter alia, observed as under:-
"5.....The entire Community is aggrieved if the economic
offenders who ruin the economy of the State are not
brought to book. A murder may be committed in the
heat of moment upon passions being aroused. An
economic offence is committed with cool calculation and
deliberate design with an eye on personal profit
regardless of the consequence to the Community. A
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disregard for the interest of the Community can be
manifested only at the cost of forfeiting the trust and
faith of the Community in the system to administer
justice in an even handed manner without fear of
criticism from the quarters which view white collar
crimes with a permissive eye unmindful of the damage
done to the national economy and national interest.."
24. While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction will
entail, the character of the accused, circumstances which are
peculiar to the accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable apprehension of
the witnesses being tampered with, the larger interests of the
public/State and other similar considerations. It has also to be
kept in mind that for the purpose of granting bail, the
Legislature has used the words "reasonable grounds for
believing" instead of "the evidence" which means the Court
dealing with the grant of bail can only satisfy it as to whether
there is a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence in
support of the charge. It is not expected, at this stage, to have
the evidence establishing the guilt of the accused beyond
reasonable doubt.
25. Economic offences constitute a class apart and need to be
visited with a different approach in the matter of bail. The
economic offence having deep rooted conspiracies and involving
huge loss of public funds needs to be viewed seriously and
considered as grave offences affecting the economy of the
country as a whole and thereby posing serious threat to the
financial health of the country."
9. Referring to law laid down in P. Chidambaram Vs. Vs.
Directorate Of Enforcement reported in (2019) 9 SCC 24, in case
of Directorate Of Enforcement Versus M.Gopal Reddy [2023 (0)
AIJEL-SC 70433], the Hon'ble Apex Court in paragraph 6.3, has
observed as under:
"6.3 From the aforesaid, it can be seen that the High Court has not at
all considered the nature of allegations and the seriousness of the
offences alleged against respondent No. 1. As per the catena of
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decision of this Court, more particularly, observed in the case of P.
Chidambaram (supra) in case of economic offences, which are having
an impact on the society, the Court must be very slow in exercising
the discretion under Section 438 of Cr.PC."
10. Taking note of all above aspects without expressing any
opinion on the merit of the case, this Court is of the view that
petitioner cannot be released on pre-arrest bail.
11. Resultantly, present petition fails and stands dismissed.
Rule discharged.
(J. C. DOSHI,J)
SOMPURA / SHEKHAR P. BARVE
