Punjab-Haryana High Court
Jatinder Menro vs State Of Punjab on 14 November, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
In The High Court for the States of Punjab and Haryana
At Chandigarh
(I) CRM-M-49906-2024 (O&M)
Date of Decision:- 14.11.2024
Jatinder Menro ................. Petitioner
Versus
State of Punjab ............... Respondent
(II) CRM-M-50988-2024 (O&M)
Mandeep Singh .................... Petitioner
Versus
State of Punjab ............... Respondent
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Preetinder Singh Ahluwalia, Advocate,
for the petitioner.
Mr. Japjot Singh, AAG, Punjab.
* * * * *
FIR DATE POLICE STATION OFFENCES
NO.
106 05.07.2018 Mandi Gobindgarh, 420, 120-B IPC and
District Fatehgarh Sahib Section 132(1) of the
Punjab Goods and
Services Act, 2017 to
which Sections 465, 467,
468, 471 IPC added
subsequently vide DDR
No.6 dated 26.12.2023
MOHAN SINGH
2024.11.14 18:25
I attest to the accuracy and
authenticity of this document
Punjab and Haryana High Court,
Chandigarh
CRM-M Nos.49906 & 50988 of 2024 (O&M) -2-
GURVINDER SINGH GILL, J.
1. This order shall dispose of the above mentioned two petitions wherein
petitioners Jatinder Menro and Mandeep Singh seek grant of anticipatory
bail in respect of aforementioned FIR.
2. The FIR came to be lodged pursuant to a complaint made by Assistant
Commissioner of Excise, against Sumit Kumar, Sammy Dhiman, Mandeep
Dhiman, Sudhir Kumar Verma, Mukesh Gautam, Karan Kumar, Ravi
Kaushal and Kushal Kumar alleging therein that the accused, in connivance
with each other, had created fake forms and had forged and fabricated fake
bills showing inter se transactions of sales and purchases and had uploaded
the same on the portal of GST and had further sold the bills to the
manufacturing firms at Mandi Gobindgarh and Ludhiana and had earned
commission from the said firms and had thus caused loss to the Government
to the tune of about Rs.25 crores by way of getting 'Input Tax Credit'.
3. It is further the case of prosecution that accused Sammy Dhiman was
arrested on 31.10.2023 and upon being interrogated, he disclosed that
Avtarjit Singh, Komal Sharma had masterminded the fraud. He further
disclosed that Mandeep Singh (petitioner) had created a false firm at
Faridabad under the name and style of Shree Radha Krishan Steels,
Faridabad and after obtaining Excise and VAT number had converted the
same into GST. It is further alleged that in the same manner Mandeep Singh
along with Avtarjit Singh, Komal Sharma, Jatinder Menro had created 4
different firms at Delhi and Faridabad and after obtaining Excise and VAT
numbers had shown fake stock of 15000 tonnes of iron/scrap with his bogus
Punjab and Haryana High Court,
firm Shree Radha Krishan Steel, Faridabad. Pursuant to aforesaid disclosure
statement, Avtarjit Singh, Komal Sharma, Jatinder Menro and Mandeep
Singh came to be nominated as accused on 2.11.2024.
4. Thus, in nutshell, the allegations are that fraudulent claims of 'Input Tax
Credit' (ITC) had been made on the basis of false documents and fictitious
transactions by creating dummy firms which were actually not doing any
business.
5. Learned counsel representing the petitioners submitted that proceedings
pursuant to the FIR are infact an abuse of process of law inasmuch as the
petitioners are also being proceeded against in a complaint under Section
132 of Central GST Act 2017, instituted on 30.8.2018, pending before the
Court of learned Chief Judicial Magistrate, Ludhiana, and wherein the
petitioners had remained behind bars for more than one year and since the
police never took any step to arrest the petitioners during the last 5 years in
the instant FIR, necessarily indicating that custodial interrogation was not
really required, the alleged recording of disclosure statement of co-accused
Sammy Dhiman on 31.10.2023 or addition of offences under Sections 465,
467, 468, 471 IPC at this belated stage vide DDR No.9 dated 26.12.2023 is
nothing, but a ploy to falsely involve the petitioners in the case at this
belated stage so as to throw them behind bars.
6. Learned counsel submitted that in any case given the fact that separate
detailed complaints under Section 132 of Central GST Act had also been
instituted in the competent Court at Ludhiana on 30.8.2018 against the
Punjab and Haryana High Court,
petitioners, wherein petitioner-Jatinder Menro remained in custody for 1
year and 8 months and even petitioner-Mandeep Singh remained behind bars
for about 1 year, the continuance of proceedings against petitioners in the
present FIR could even be hit by principle of double jeopardy inasmuch as
the allegations in the complaint under CGST Act as well as in the present
FIR pertain to the same acts and transactions allegedly committed by the
accused.
7. Learned counsel submitted that as a matter of fact both under Central GST
Act 2017 as well as Punjab GST Act 2017, there is a specific provision for
protection of the accused in this regard under Section 6(2)(b) of Central GST
Act and Section 6(2)(b) of Punjab GST Act as per which proceedings against
an accused for a specific instance of defaut/offence can be initiated under
one of these two 'Acts' only i.e either under Central GST Act 2017 or under
Punjab GST Act 2017 and not parallelly under both the 'Acts'.
8. Learned counsel submitted that the petitioners are now sought to be arrested
after almost 5 years apparently under the garb of offences punishable under
the IPC which have been added in the month of November, 2023, which is
nothing, but a misuse of the said provision particularly when the CGST Act
and PGST Act are complete codes in themselves and there are specific
provisions with regard to commission of offences by way of falsifying and
forging record including bills etc. and in respect of which imprisonment may
extend upto 5 years.
Punjab and Haryana High Court,
9. It has thus, been submitted that when an act of accused constitutes an
offence under a special enactment and as well as under IPC, it is the
provisions of the special enactment only which will apply and application of
provisions of IPC shall stand excluded.
10. Learned counsel in order to hammer forth his aforesaid submissions places
reliance upon Sharat Babu Digumarti Vs. State of NCT (2017) 2 SCC 18;
Jeewan Kumar Raut Vs. CBI (2009) 7 SCC 526; Union of India Vs. Ashok
Kumar Sharma (2021) 12 SCC 674; Ram Nath Vs. State of UP SLP (Crl)
1379/2011; State of Gujarat Vs. Choodamani Parmeshwarana Iyer 2023
SCC OnLine SC 1043; Deepak Singhal Vs. Union of India 2024(4) JabLJ
19; Ashwani Kumar Vs. State of Punjab CRM-M-23662-2016; Pritpal
Singh Vs. State of Punjab CRM-M-26116-2010; Satya Paul Sharma Vs.
State of Haryana 2009 SCC Online P&H 4665; Rakesh Kumar Goyal Vs.
Directorate of Revenue Intelligence CRM-M-24124-2015 and Deepak
Kumar Vs. State of Punjab CRM-M-38352-2014.
11. The learned State counsel on the other hand submitted that prosecution for
offences under IPC would not be barred merely on account of the fact that
there is a special enactment under which such acts are also made punishable
unless exclusion is either specifically provided for in special enactment
or there is some 'over-riding' clause in the same. It has been submitted that
having regard to the enormity of the offence and the colossal amount
defrauded wherein the accused by means of raising false bills and showing
fictitious transactions had availed of 'Input Tax Credit' to the tune of more
than Rs.25 crores, no leniency is warranted and since the amount in question
Punjab and Haryana High Court,
is yet to be recovered, their custodial interrogation would be required. It has
further been submitted that since offences punishable under Sections 465,
467, 468, 471 IPC have also been added which provide for a much severe
sentence than provided under CGST Act or PGST Act, the mere fact that the
petitioners had been granted bail in the complaint filed under Section 132 of
CGST Act cannot preclude the investigating agency from arresting of the
petitioners in the present FIR.
12. This Court has considered rival submissions addressed before this Court.
13. The allegations are broadly to the effect that the petitioners had availed of
'Input Tax Credit' by raising false bills and showing fictitious transactions
effected through dummy firms which were actually not in business. Such
allegations, on the face of it would certainly attract offence under IPC for
allegedly availing 'Input Tax Credit' fradulently on the basis of false
documents and sham transactions. At the same time, since fraud had
allegedly been committed with respect to availing 'Input Tax Credit' under
provisions of GST, the penal provisions of GST would also attracted.
Section 26 of the General Clauses Act, 1897, which is a specific provision
for such an eventualty reads as under :
"Provisions as to offences punishable under two or more enactments -
Where an act or omission constitutes an offence under two or more
enactments, then the offender shall be liable to be prosecuted and punished
under either or any of those enactments, but shall not be liable to be punished
twice for the same offence."
Punjab and Haryana High Court,
14. A perusal of the above refered provisions suggests that there is no absolute
bar to try an offender under two different enactments, but the bar is only to
the punishment of the offender twice for the offence. The same set of facts,
in conceivable cases, can constitute offences under two different laws. An
act or an omission can amount to and constitute an offence under the IPC
and at the same time, an offence under any other law. This Court has gone
through the judgments cited by learned counsel for the petitioners as noted
in para No.10. This Court however, finds that the said judgments
particularly the Supreme Court's judgments have not directly dealt with the
issue where act constitutes offence under two enactments particularly in
reference to Section 26 of General Clauses Act. However, Hon'ble the
Supreme Court has specifically dealt with the said issue on several occasions
in some other cases. Some of the said judgments are being briefly referred
herein under.
15. Hon'ble Supreme Court in T.S. Baliah v. T.S. Rengachari - AIR 1969
Supreme Court 701, held that where an act or an omission constitutes an
offence under two enactments, the offender may be prosecuted and punished
under either or both enactments but shall not be liable to be punished twice
for the same offence.
16. In State of Rajasthan v. Hat Singh, (2003) 2 SCC 152, Hon'ble Apex Court
discussed the doctrine of double jeopardy and section 26 of the General
Clauses Act to observe that prosecution under two different Acts is
permissible if the ingredients of the provisions are satisfied on the same
facts.
Punjab and Haryana High Court,
17. Hon'ble Supreme Court, in State (NCT of Delhi) v. Sanjay, (2014) 9 SCC
772, while considering the issue as regards prosecution for offences under
the Mines and Minerals (Development and Regulation) Act 1957 and Indian
Penal Code, held that there is no bar in prosecuting persons under the Penal
Code where the offences committed by persons are penal and cognizable
offences.
18. In State of Maharashtra vs. Sayyed Hassan (2019)18 SCC 145, Hon'ble
Apex Court Court held that Section 55 of Food and Safety Standards Act,
2006 being a specific provision made in the special enactment but still an
offence under Section 188 of IPC is made out.
19. There sure is multiplicity of laws. While the IPC (now BNS) would spell out
the general offences, there are several special enactments which have come
up later to deal with specialisd offences. In some cases even a different
procedure for investigating or trying such offences under special Acts is
provided. If the legislature desires a particular provision of IPC or Cr.PC to
be made inapplicable to a special Act, it could indicate the same by either
repealing those offences in their application to special Acts or specifically
overriding the provisions of IPC in certain situations. That having not been
done, in CGST or in Punjab GST, it may be faulty to hold that merely
because GST is attracted, the offence under IPC stands excluded. It will not
be out of place to mention that similar offences under GST Act would atrract
a much milder punishment than under IPC. In certain cases, an accused can
be let off with mere penalty. However, since, this Court is presently seized
Punjab and Haryana High Court,
of a petition for grant of anticipatory bail only, there is no need to delve
deeper in the legal issue arising out in Clause 26 of General Clauses Act.
20. Admittedly, the petitioners have also been proceeded in a complaint filed
against them under under Section 132 of CGST Act, which is pending at
Ludhiana wherein petitioner-Jatinder Menro remained in custody for 1 year
and 8 months and petitioner-Mandeep Singh remained behind bars for about
1 year. It is also not in dispute that the petitioners were not on the run and
had associated themselves with the authorities concerned. However, the
petitioners now apprehend their arrest on account alleged disclosure
statement dated 2.11.2013 by Sammy Dhiman and addition of offences
punishable under Sections 465, 467, 468, 471 IPC. It is now pursuant to
recording of said disclosure statement that the petitioners came to be
nominated as accused in the present FIR on 02.11.2023.
21. Having regard to the aforestated position wherein it is prima facie found that
the allegations as in the complaint under Section 132 of CGST Act and in
the FIR are more or less overlapping and also that the allegations pertaining
to raising of false bills for showing false transactions would specifically be
covered under offences under CGST and also that the petitioners have
remained behind bars for a substantial period in respect of a complaint under
Section 132 of CGST Act and neither the petitioners are alleged to been on
the run during these five years nor the police had chosen to arrest them ever
since lodging of the FIR, this Court is of the opinion that it is a fit case for
grant of anticipatory bail to the petitioners. Both the petitions, as such, are
accepted and in the event of arrest, the petitioners be released on interim bail
Punjab and Haryana High Court,
subject to their furnishing personal bonds and surety bonds to the
satisfaction of Arresting/Investigating Officer. However, the petitioners shall
join the investigation as and when called upon to do so and cooperate with
the Arresting/Investigating Officer and shall abide by the conditions as
provided under Section 438 (2) Cr.P.C.
22. A photocopy of this order be placed on the file of other connected case.
14.11.2024 ( GURVINDER SINGH GILL)
mohan JUDGE
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
Punjab and Haryana High Court,
