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Gujarat High Court · body

2024 DIGILAW 80 (GUJ)

State of Gujarat v. Rajesh Dindayal Mundra

2024-01-10

J.C.DOSHI

body2024
ORDER : 1. By way of the present petition under Section 439(2) of the Code of Criminal Procedure, 1973, the petitioner State has prayed to quash and set aside the order dated 1.7.2020 passed by the learned Sessions Judge, Surat in Criminal Misc. Application No.3165 of 2020, whereby the learned Session Judge has granted bail to the respondent – original accused for the offences punishable u/s 69, 132(2)(c) and 132(5) of the Central Goods and Services Tax Act. 1.1 As per the case of prosecution, investigation was carried out by the GST Department of Gujarat regarding financial transactions and evasions of GST and further wrongly claiming the input tax credit on the same. It was submitted that during the investigation, it came out that the present respondent accused created number of firms in bogus names at bogus addresses and thereafter, while falsely showing exports of goods by creating forged bills, claiming GST refund in different accounts and total forged billing of Rs. 58,23,32,569/- (Fifty Eight Crore Twenty Three Lakh Thirty Two Thousand Five Hundred and Sixty Nine only) was made from those accounts and thereafter, obtained a false refund in 15 of his forged firms total amounting to Rs. 11,64,08,262/- (Eleven Crore Sixty Four Lakh Eight Thousand Two Hundred and Sixty Two only). The respondent accused was thereafter arrested and presented a bail application before the Court of Ld. CJM, Surat which was rejected the Ld. CJM. Hence Criminal Misc. Application No.1483 of 2020 was filed before the competent Court at Surat and the learned 8th Addl. Sessions Judge, Surat has enlarged the respondent accused on bail vide order dated 4.3.2020. Hence, present petition for cancellation of bail. 2. Heard learned APP for the petitioner State and learned advocate Mr. Virat Popat for the respondent. 3. Learned APP would submit that the respondent was granted bail by learned 8th Addl. Sessions Judge, Surat in Criminal Misc. Application No.1483 of 2020, whereby several conditions were imposed and amongst the conditions, condition No.7 was to deposit Rs.3 crore with the facility of installment of Rs.50 lakh to be deposited at the time of executing bail bond, Rs.50 lakh to be deposited before 31.3.2020 and rest of the amount was to be deposited in 10 equal monthly installments of Rs.20 lakh each starting from April, 2020. She would further submit that thereafter, the respondent preferred Criminal Misc. She would further submit that thereafter, the respondent preferred Criminal Misc. Application No.15234 of 2020 before this Court, whereby this Court (Coram: A.G. Uraizee, J) has modified the order and permitted the respondent to deposit a sum of Rs.50 lakh on or before 15.4.2021 and rest of the amount of Rs.2 crore in monthly installments of Rs.20 lakh each from May 2021 instead of 12.10.2020 and November, 2020 respectively. She would further submit that thereafter, the Coordinate Bench of this Court has granted time to the respondent in Criminal Misc. Application No.1 of 2021 in Criminal Misc. Application No.15234 of 2020. Thereafter, Criminal Misc. Application No.2 of 2021 in Criminal Misc. Application No.15234 of 2020 filed by the respondent seeking modification of the relevant condition has been withdrawn by the respondent. She would further submit that in view of the above, the respondent was required to deposit the amount in installments of Rs.20 lakh each, but the respondent has defaulted in paying the amount and thus, there is clear breach and violation of the conditions, which was imposed pursuant to undertaking offered by the respondent accused. Under these circumstances, she submits to allow this petition. 4. On the other hand, learned advocate Mr. Virat Popat in his utter fairness submits that the respondent had deposited only Rs.1.25 crore uptil now. He would further submit that however, the respondent faced corona time and his business is completely ruined and could not adhere to the promise and condition to deposit the amount. He would further submit that the respondent was ready and willing to tender the title of the immovable property he is having from which, the entire amount of Rs.3 crore could be secured. Upon above submissions, he submits to dismiss the petition. 5. Having heard learned advocates for both the sides, at the outset, this Court is conscious of the fact that personal liberty granted to the accused is not to be taken back lightly or interfered with, except if the bail is granted on untenable grounds or irrelevant consideration. However, at the same time, the respondent, who while seeking bail, offered himself to ready and willing to deposit the amount, he is required to deposit the said amount and undertake to fulfill the condition. Therefore, such bail was granted subject to condition made pursuant to the offer and willingness made by the respondent. However, at the same time, the respondent, who while seeking bail, offered himself to ready and willing to deposit the amount, he is required to deposit the said amount and undertake to fulfill the condition. Therefore, such bail was granted subject to condition made pursuant to the offer and willingness made by the respondent. At this juncture, it is relevant to reproduce para 5 of the impugned order “5. I have heard the submissions of the learned counsel for the applicant and learned APP for the state Ld. Counsel for the complainant and perused the case papers, affidavit of Investigating Officer, and the complaint and the record of the case. As per the case of prosecution, some of the input tax credit claimed by the applicant has been returned to the GST department and as such presently around Rs. 6 Crore of input tax credit actually obtained by the applicant through several of the firms is still to be recovered. Admittedly, the firms where the tax was credited are in the name of the other different persons and are not in the name of applicant, however, the applicant, CA and the so called owners of the firms have stated /admitted the involvement of the applicant. Those owners of different firms have not so far been made accused by the department in the case. However, apart from the merits of the case, the applicant is willing and ready to deposit an amount of Rs. 3 Crore before the concerned Ld. Trial Court and also filed a list of his properties on affidavit executed by his brother. The applicant has further agreed to provide co-operation to the investigation /Intelligence Officers of the Department ongoing investigation against him.” 6. From the above, it appears that the respondent was ready and willing to deposit an amount of Rs.3 crore before the concerned learned trial Court and also to file list of his properties and affidavit executed by his brother. Having found such kind of offer of the respondent, the learned trial Court passed following order enlarging the respondent on bail. “ORDER In view of the facts stated above the accused is directed to be released on bail in File No. AC/Unit - 8/Surat/Rajesh Mundra Arrest/2019-2020/16881 dated 1/2/2020 under Sections 69, 132(1)(C) and 132(5) of Central Goods and Services Tax Act on furnishing of personal bond with a surety of like amount of Rs. “ORDER In view of the facts stated above the accused is directed to be released on bail in File No. AC/Unit - 8/Surat/Rajesh Mundra Arrest/2019-2020/16881 dated 1/2/2020 under Sections 69, 132(1)(C) and 132(5) of Central Goods and Services Tax Act on furnishing of personal bond with a surety of like amount of Rs. 50,000/- subject to the following conditions. “1. The applicant/accused shall furnish one solvent surety of Rs. 50000 /- (Rs. Fifty Thousand only) and shall execute the personal bond of the like amount to the satisfaction of the Trial Court. The Trial Court may consider granting 30 days time to the applicant to furnish solvency certificate. 2. The applicant shall mark presence before the concerned Investigating Officer on every alternate Monday of each English calendar month till the filing of charge-sheet /complaint. The applicant shall attend the dates of hearing regularly during the trial. 3. The applicant shall furnish residential address with proof before the Ld. Trial Court as well as concerned police station and the applicant shall not change residential premises without prior permission of the Trial Court till the pendency of Trial. 4. The applicant shall deposit passport with the Trial Court within a period of seven days of this Order and if the applicant did not possess the passport, an affidavit to that effect shall be filed within a period of seven days before the Trial Court. 5. The applicant shall not tamper with the witnesses or act in any manner prejudicial to the case of prosecution. 6. The applicant shall submit the list of all of his movable and immovable assets and further the movable and immovable assets of his wife within 7 days after his release on bail including the details of bank accounts, shares and securities including mutual funds, jewellery articles and shall not sell any immovable property without the permission of Ld. Trial Court. It is made clear that if such details would be found wrong, the prosecuting agency can file for cancellation of bail. 7. That the applicant shall deposit an amount of Rs. 3 Crore out of which Rs. 50 Lakh shall be deposited at the time of executing bail bonds and further Rs. 50 Lakh shall be deposited by 31.03.2020 and remaining amount of Rs. 2 Crore shall be deposited in 10 equal monthly installments of Rs. 7. That the applicant shall deposit an amount of Rs. 3 Crore out of which Rs. 50 Lakh shall be deposited at the time of executing bail bonds and further Rs. 50 Lakh shall be deposited by 31.03.2020 and remaining amount of Rs. 2 Crore shall be deposited in 10 equal monthly installments of Rs. 20 Lakh each starting from April 2020 to be paid by the end of the respective month. The applicant shall also file a separate affidavit before the Ld. Trial Court showing his willingness to deposit the said amount within 7 days of his release on bail. 8. The applicant shall extent every possible co-operation in the investigation required by the investigating agencies and shall appear before the investigating agencies as and when required by it. 9. Applicant shall not leave India without the prior permission of the Trial Court. 10. Yadi be sent to the Trial Court as well as concerned department.” 7. Condition No.7 speaks volume, which is imposed pursuant to the readiness and willingness of the respondent. According this condition, the respondent was required to deposit Rs.50 lakh at the time of executing bail bonds and further Rs. 50 Lakh was to deposit by 31.03.2020 and remaining amount of Rs. 2 Crore shall be deposited in 10 equal monthly installments of Rs. 20 Lakh each starting from April 2020. Thus, what appears that personal liberty granted to the respondent was subject to his filing undertaking and readiness and willingness to deposit the amount he has offered while moving the Court for getting regular bail. 8. What more requires to be observed that the respondent preferred modification application being Criminal Misc. Application No.15234 of 2020 before the Coordinate Bench of this Court and the Coordinate Bench of this Court has passed following order on 5.11.2020. “1. Rule. Mr. Soni, learned APP waives service of rule for the respondent-State. 2. The present application is preferred under section 439 read with section 482 of the Code of Criminal Procedure, 1973 for modification of order dated 11.9.2020 passed by the learned 10th Additional Sessions Judge, Surat in Criminal Misc. Application No.4016 of 2020 by which the applicant is directed to deposit a sum of Rs.50 lakhs on or before 12.10.2020 and the remaining amount of Rs.2 crores in monthly installments of Rs.20 lakhs each from November, 2020. 3. Heard Mr. Application No.4016 of 2020 by which the applicant is directed to deposit a sum of Rs.50 lakhs on or before 12.10.2020 and the remaining amount of Rs.2 crores in monthly installments of Rs.20 lakhs each from November, 2020. 3. Heard Mr. Virat Popat, learned advocate for the applicant and Mr. Hardik Soni, learned APP for the respondent-State. 4. Mr. Popat submits that because of the prevailing condition export import business of the applicant has come to a standstill. He submits that because of this, the applicant is facing serious financial crunch and is unable to deposit the amount as directed by the learned trial Judge. He submits that the business is likely to become normal from April, 2021 and, therefore, the condition may be modified, as prayed in the present application. Mr Popat further submits that the applicant will not seek any further extension. 5. Mr. Soni, learned APP has opposed this application. He submits that the applicant has sufficient resources to pay the money, however, the deposit is not made. He submits that the applicant has made an unreasonable prayer in the present application and because of non-payment, the State exchequer is suffering. However, he submits that considering the overall facts, the condition may be modified and reasonable time may be granted to the applicant. 6. Having heard the learned advocates for the parties and having given my thoughtful consideration, I am of the view that because of prevailing pandemic situation, there is overall contraction in the economic activities in the country. Therefore, in the background of prevailing conditions, I am of the opinion that the submission made by Mr, Popat that the applicant is facing financial crunch cannot be doubted. As a matter of fact, the State is concerned with the recovery of GST and when the applicant is assuring that he would start making payment with effect from April 2021 with further prayer for extension of time, I am of the view that the time to make the payment is required to be modified suitably. 7. In view of the above, the present application is partly allowed. Condition No. b of the order dated 11.9.2020 passed by the learned 10th Additional Sessions Judge, Surat in Criminal Misc. 7. In view of the above, the present application is partly allowed. Condition No. b of the order dated 11.9.2020 passed by the learned 10th Additional Sessions Judge, Surat in Criminal Misc. Application No.4016 of 2020 is hereby modified and the applicant is directed to deposit a sum of Rs.50 lakhs on or before 15th April, 2021 and the rest of the amount of Rs.2 crores in monthly installments of Rs.20 lakhs each from May 2021 instead of 12.10.2020 and November 2020 respectively. 8. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court via e-mail/fax.” 9. Later on, the Court acceded to the request made by the respondent in Criminal Misc. Application No.1 of 2021 in Criminal Misc. Application No.15234 of 2020, the Coordinate Bench of this Court had passed following order:- “1. Rule. Ms. C.M. Shah, learned APP waives service of rule for the respondent-State of Gujarat. 2. The applicant has preferred present application for extension of time for depositing of amount, as per order dated 5.11.2020 passed by this Court in Criminal Misc. Application No.15234 of 2020 whereunder the condition No. b of the order dated 11.9.2020 passed by the learned 10th Additional Sessions Judge, Surat in Criminal Misc. Application No.4016 of 2020 was modified and the applicant was directed to deposit a sum of Rs.50 lakhs on or before 15.4.2021 and the rest of the amount of Rs.2 Crores in monthly installments of Rs. 20 lakhs each from May 2021 instead of 12.10.2020 and November 2020 respectively. 3. Mr. Virat G. Popat, learned advocate for the applicant submits that because of pandemic situation, the applicant is facing severe financial crunch, as a consequence whereof, he is not able to deposit the amount. He further submits that the applicant has filed an affidavit-cum-undertaking wherein he has given revised schedule of payment with assurance that he was not seek further extension, irrespective of any circumstances and will abide by the terms of undertaking. He, therefore urges that present application may be allowed and the applicant may be allowed to deposit the amount as per revised schedule. 4. Ms. C.M. Shah, learned APP has opposed this application. According to her submission, this Court has already shown grace and has given sufficient time to the applicant to deposit the amount. He, therefore urges that present application may be allowed and the applicant may be allowed to deposit the amount as per revised schedule. 4. Ms. C.M. Shah, learned APP has opposed this application. According to her submission, this Court has already shown grace and has given sufficient time to the applicant to deposit the amount. However, on the pretext of the current pandemic situation, he is defaulted in making the payment. According to her submission the applicant has no inclination to honour the order of the Court. Therefore, no further extension may be granted and the present application may be rejected. 5. During the pendency of present application, the applicant has filed affidavit cum undertaking dated 14.7.2021 which reads as under:- “1. I say and submit that by way of this application I sought modification – extension of time for the purpose of deposition of amount as described in para 7 of order dated 05.11.2020 passed in CR. MA No.15234 of 2020. That as per the aforesaid order I was directed to deposit sum of Rs.50,00,000/- on or before 15.04.2021 and thereafter an amount of Rs.2 Crore in monthly installments of Rs.20,00,000/- each from May 2021. 2. I say and submit that on account of financial crunch and the second wave of pandemic which hit harder that first waive, the said amount could not be deposited in time as business of the deponent mainly concerns Import-Export. 3. I say and submit that I undertake to deposit an amount of Rs.25,00,000/- in the first week of August, 2021 and thereafter I shall continue to deposit an amount of Rs.15,00,000/- every month till the completion of deposit i.e. 2.5 Crores. 4. I shall not seek any further extension irrespective of any circumstances and will abide by the terms of present undertaking.” 6. Having considered the submissions of learned advocates and the averments made in the present application. It appears from the record that applicant is seeking extension of time to make deposit, as he is facing severe financial crunch and that the undertaking which he has submitted in the Court, he has undertaken to abide by the undertaking and has also assured that he shall not seek any further extension under any circumstances. 7. It appears from the record that applicant is seeking extension of time to make deposit, as he is facing severe financial crunch and that the undertaking which he has submitted in the Court, he has undertaken to abide by the undertaking and has also assured that he shall not seek any further extension under any circumstances. 7. In view of above, I am of the view that as a last chance, the schedule of payment quantified by this Court under order dated 5.11.2020 needs to be rescheduled in terms of the undertaking filed by the applicant. 8. Accordingly, paragraph No. 7 of order dated 5.11.2020 passed by this Court in Criminal Misc. Application No.15234 of 2020 is hereby modified and the applicant is directed to deposit a sum of Rs.25 lakhs in the first week of August 2021 and thereafter to continue to deposit the amount of Rs.15 lakhs every month till completion of deposit of Rs.2.5 Crores. 9. If the applicant makes default in payment of any single installment, bail granted to him shall stand automatically cancelled and the Investigating Officer shall be at liberty to initiate appropriate steps to take the applicant in custody. In view of above, the application is hereby allowed. Rule is made absolute to the aforesaid extent.” 10. Therefore, what appears that the Coordinate Bench of this Court modified the entire condition and permitted the respondent to deposit a sum of Rs.50 lakh on or before 15.4.2021 instead of paying it by 31.3.2020 and then permitted to deposit rest of the above of Rs.2 crore in monthly installments of Rs.20 lakhs each from May 2021 instead of 12.10.2020 and November 2020 respectively. The condition was relaxed as per the request of the respondent. It is further relaxed as per the order as stated herein above. The respondent was permitted to deposit Rs.25 lakhs in the first week of August 2021 and thereafter to continue to deposit the amount of Rs.15 lakhs every month till completion of deposit of Rs.2.5 Crores. However, fact remains that condition imposed earlier to enlarge respondent accused on bail and released subsequently was never complied with in its true sense. The amount, as promised by the respondent accused, is not deposited in entirety. 11. However, fact remains that condition imposed earlier to enlarge respondent accused on bail and released subsequently was never complied with in its true sense. The amount, as promised by the respondent accused, is not deposited in entirety. 11. In regards to violation of undertaking given to the Court and the condition imposed as per undertaking being breached, this Court in case of Jayshreeba Aniruddhsinh Gohil Vs. State of Gujarat reported in 2022(4) GLR 2787 , wherein this Court has held and observed in para 8 and 11 as under:- “8. …………. If such an approach is permitted then every accused will get himself released on bail by making false statements and his subsequent conduct from resiling from such statement will be a blessing for him. There will be no sanctity attached to the proceedings of the Court, and the accused will be roaming freely without complying with the directions. Non-fulfillment of the commitment or withdrawal from the statement cannot dilute the directions issued by a Court of law. 11. Under the circumstances and in light of the aforesaid glaring facts, this Court has no other option but to cancel the bail granted to the respondent No.2-Original accused No.1 vide order dated 24.05.2021 in Criminal Misc. Application No.3410 of 2021 passed by the City Sessions Judge, Ahmedabad. The impugned order dated 08.09.2021 passed in Criminal Misc. Application No.5749 of 2021 is hereby quashed and set aside. The bail bonds are cancelled. The respondent No.2- accused is directed to surrender immediately.” 12. Learned advocate Mr. Popat for the respondent has submitted that thereafter, the respondent has paid in all Rs.1.25 crore. Thereafter, the respondent has approached the Coordinate Bench of this Court by filing Criminal Misc. Application No.2 of 2021 in Criminal Misc. Application No.15234 of 2021 seeking relief that instead of depositing the amount in cash, the respondent may be permitted tender title of his immovable property. However, said application was withdrawn. 13. At this juncture, observation and finding made by the Coordinate Bench of this Court in para 9 in Criminal Misc. Application No.1 of 2021 is required to be reproduced as under:- “9. If the applicant makes default in payment of any single installment, bail granted to him shall stand automatically cancelled and the Investigating Officer shall be at liberty to initiate appropriate steps to take the applicant in custody.” 14. Application No.1 of 2021 is required to be reproduced as under:- “9. If the applicant makes default in payment of any single installment, bail granted to him shall stand automatically cancelled and the Investigating Officer shall be at liberty to initiate appropriate steps to take the applicant in custody.” 14. Seen thus, by above order, the bail granted to the respondent was automatically cancelled and thereby, directed the investigating officer to initiate appropriate proceedings and to take the respondent in custody. There is no hue and cry that the condition imposed and undertaking given earlier while enlarging the respondent accused on bail and the condition relaxed later on, is complied with in its letter and spirit. Yet the amount of Rs.1.75 crore is outstanding and there is no readiness and willingness on the part of the respondent to pay the same. Since by above orders, the bail granted to the respondent is already cancelled, there is no need to cancel the bail again as order dated 16.7.2021 passed by the Coordinate Bench of this Court in Criminal Misc. Application No.1 of 2021 is self speaking and thus, operates for this petition also. 15. Under the circumstances, present petition is allowed and order dated 1.7.2020 passed by the learned Sessions Judge, Surat in Criminal Misc. Application No.3165 of 2020 is hereby quashed and set aside. The bail bonds are cancelled. The respondent is hereby directed to surrender himself within seven days from today, failing which, the concerned investigating officer/court would be at liberty to take steps to secure custody of the respondent.