IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL PETITION NO.979/2019 C/W CRIMINAL PETITION NO.980/2019 IN CRIMINAL PETITION NO.979/2019 BETWEEN:
1. Mr. Shravan. A. Mehra S/o. Mr. Anil. K. Mehra, Aged about 34 years, Director of M S Marketing Enterprises Pvt Ltd. No.136/137, Lakshmipuram Main Road, Dasanapura Hobli, Madanayakanahalli, Bangalore – 562123.
2. Mr. Anil. K. Mehra S/o Kranthi Mohan Mehra Aged 58 years, Director of M S Marketing Enterprises Pvt Ltd. No.136/137, Lakshmipuram Main Road, Dasanapura Hobli, Madanayakanahalli, Bangalore – 562123. ... Petitioners (By Sri. Ravi.B.Naik, Senior counsel for Sri. Achappa P B, Advocate) AND:
Superintendent of Central Tax, Anti-evasion, GST Commissionerate, Bangalore East Shri. Sanjeev. H. Chandargi TTMC, BMYC Building, Above BMTC Bust Stand, Domlur, Bangalore-560071.
Represented by the Authorised Officer and or Prosecutor Attached this Honble Court ... Respondent (By Sri. Jeevan.J.Neeralgi, Standing counsel) This Criminal Petition is filed under Section 438 of the Code of the Criminal Procedure Code praying to enlarge the petitioners on bail in the event of there arrest if respondent implicates the petitioners for the offences punishable under Section 132 or any other provisions of the CGST Act in the complaint filed by the respondent in O.R.No.40/2018-19 which the company of the petitioners are served a witness summons and etc.
IN CRIMINAL PETITION NO.980/2019 BETWEEN:
1. Mr. Shravan. A. Mehra S/o Mr. Anil K Mehra, Aged about 34 years, Director of M S Retail Private Ltd., No.21, Opp. The Hotel Solitaire, Kumara Krupa Road, Bengaluru-560 001.
2. Mr. Anil. K. Mehra S/o Kranthi Mohan Mehra Aged 58 years, Director of M S Retail Pvt Ltd.
No.21, Opp. The Hotel Solitaire, Kumara Krupa Road, Bengaluru-560 001 ... Petitioners (By Sri. Ravi.B.Naik, Senior counsel for Sri. Achappa P B, Advocate) AND:
Superintendent of Central Tax, Anti-evasion, GST Commissionerate, Bangalore East Shri. Sanjeev. H. Chandargi TTMC, BMYC Building, Above BMTC Bust Stand, Domlur, Bangalore-560071 Represented by the Authorised Officer and or Prosecutor Attached this Honble Court Bengaluru – 560001. ... Respondent (By Sri. Jeevan.J.Neeralgi, Standing counsel) This Criminal Petition is filed under Section 438 of the Code of the Criminal Procedure Code praying to enlarge the petitioners on bail in the event of the respondent implicates the petitioners for the offences punishable under Section 132 of CGST Act in the O.R.No.40/2018-19 in which the complaint filed by the respondent in which the company of the petitioners are served a witness summons and etc.
These Criminal Petitions coming on for Orders, this day, the Court made the following:
ORDER These two petitions have been filed by the petitioners under Section 438 of Cr.P.C., to release them on bail in O.R.No.40/2018-19 for the offence punishable under Section 132 of Central Goods and Services Tax Act (hereinafter in short called as G.S.T.Act).
2. I have heard Sri. Ravi.B.Naik, learned senior counsel for the petitioners and Sri. Jeevan.J.Neeralgi, learned standing counsel for GST Commissionerate.
3. The gist of the allegation made against the petitioners is that the petitioners have obtained Invoices from the Company of the respondent without delivery of the goods and thereby evaded payment of tax and they have committed an offence under Section 132 (1)(b) of G.S.T Act.
4. It is the submission of the learned senior counsel that earlier the summons has been issued by the respondent and as per summons, the petitioners attended and have given their statement and once in such case when the witness has gone for giving the statement, he has been apprehended and taken to custody and as such, the petitioners will also apprehend that they are also likely to arrest. Though, they have now received the summons and in the event, they go to give their statement they may be apprehended, arrested and they may be taken into custody. It is his further submission that as per the G.S.T.Act, no such offence has been committed by the petitioners. Even the tax has been paid on the basis of the invoice raised and when once the tax has been paid that does not amount to an offence under Section 132 of the G.S.T.Act. He further submitted that the alleged offences are not punishable with death or imprisonment for life. The maximum punishment which is liable to be imposed is five years and fine, even in the said Act, the offence is compoundable with the Commissioner, who has initiated the said proceedings, which clearly goes to show the intention of the Legislature was to encourage the tax payers and not to penalize. It is his further submission that the object of the G.S.T.Act is to encourage trading and not to curtail the business of the traders. He further submitted that petitioners are ready to abide by any terms and conditions imposed on them by this Court and ready to offer sureties. On these grounds, he prayed to allow the petitions and to release the petitioners on anticipatory bail.
5. Per contra, learned standing counsel by filing the statement of objections submitted that the investigation is carried by the respondent and it revealed that the issuance of fake invoices without actual supply of goods has been done with an intention to enable other registered tax payers to fraudulently avail input tax credit and thereby they have caused huge loss to the economy of the country. He further submitted that if such false trading is allowed by obtaining fake invoices then under such circumstances, the economy of the country is going to be affected much and very purpose of the G.S.T.Act itself is going to be defeated. Further, by referring to Section 69 of G.S.T.Act, he submitted where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) of Section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may, by order, authorize any officer of central tax to arrest such person. In this regard the petitioners are not entitled to be released on bail. He further submitted that investigation is still in progress and some more facts of the case should be traced. If the petitioners are released on bail, there is every likelihood of tampering prosecution evidence, they may abscond and they may not be available for trial. On these grounds, he prayed to dismiss the petitions.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. Further for the purpose of brevity I quote Sections 132, 138 and 139 of the G.S.T.Act are extracted, which reads as under:
“132. Punishment for certain offences (1) Whoever commits 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 such invoice or bill referred to in clause (b);
(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, fraudulently avails input tax credit 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;
(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 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 (2 of 1974), 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.
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.
138. Compounding of offences (1) Any offence under this Act may, either before or after the institution of prosecution, be compounded by the Commissioner on payment, by the person accused of the offence, to the Central Government or the State Government, as the case may be, of such compounding amount in such manner as may be prescribed:
PROVIDED that nothing contained in this section shall apply to— (a) a person who has been allowed to compound once in respect of any of the offences specified in clauses (a) to (f) of sub-section (1) of section 132 and the offences specified in clause (l) which are relatable to offences specified in clauses (a) to (f) of the said sub-section;
(b) a person who has been allowed to compound once in respect of any offence, other than those in clause (a), under this Act or under the provisions of any State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act or the Integrated Goods and Services Tax Act in respect of supplies of value exceeding one crore rupees;
(c) a person who has been accused of committing an offence under this Act which is also an offence under any other law for the time being in force;
(d) a person who has been convicted for an offence under this Act by a court;
(e) a person who has been accused of committing an offence specified in clause (g) or clause (j) or clause (k) of sub-section (1) of section 132; and (f) any other class of persons or offences as may be prescribed:
PROVIDED FURTHER that any compounding allowed under the provisions of this section shall not affect the proceedings, if any, instituted under any other law:
PROVIDED ALSO that compounding shall be allowed only after making payment of tax, interest and penalty involved in such offences.
(2) The amount for compounding of offences under this section shall be such as may be prescribed, subject to the minimum amount not being less than ten thousand rupees or fifty per cent. of the tax involved, whichever is higher, and the maximum amount not being less than thirty thousand rupees or one hundred and fifty per cent. of the tax, whichever is higher.
(3) On payment of such compounding amount as may be determined by the Commissioner, no further proceedings shall be initiated under this Act against the accused person in respect of the same offence and any criminal proceedings, if already initiated in respect of the said offence, shall stand abated.
139. Migration of existing taxpayers (1) On and from the appointed day, every person registered under any of the existing laws and having a valid Permanent Account Number shall be issued a certificate of registration on provisional basis, subject to such conditions and in such form and manner as may be prescribed, which unless replaced by a final certificate of registration under sub-section (2), shall be liable to be cancelled if the conditions so prescribed are not complied with.
(2) The final certificate of registration shall be granted in such form and manner and subject to such conditions as may be prescribed.
(3) The certificate of registration issued to a person under sub-section (1) shall be deemed to have not been issued if the said registration is cancelled in pursuance of an application filed by such person that he was not liable to registration under section 22 or section 24.”
8. On close reading of the above said Sections, the maximum punishment provided under the Act is five years and fine and if that is taken into consideration, the magnitude of the alleged offence and it is not punishable with death or imprisonment for life. Even as per the said provision, the alleged offence is also compoundable with the Authority, who has initiated the said proceedings. The only consideration which the Court has to consider while releasing the petitioners on anticipatory bail is, that whether the petitioners can be secured for the purpose of investigation or for the purpose of trial. Under such circumstances, I feel that by imposing stringent conditions if the petitioners are ordered to be released on anticipatory bail, it would meet the ends of justice.
9. Under the similar facts and circumstances this Court in Crl.P.No.979/2019 connected with Crl.P.No.980/2019, after considering the issue has released the accused therein. In that light also the accused herein are entitled to be released on anticipatory bail.
10. In the light of the discussion held by me above, the petitions are allowed and petitioners- Mr. Shravan.A.Mehra and Mr. Anil.K.Mehra are ordered to be released on anticipatory bail in the event of their apprehension or arrest in O.R.No.40/2018-19 filed under Section 132 of G.S.T.Act, subject to the following conditions:
1. Mr. Shravan.A.Mehra and Mr. Anil.K.Mehra each of them shall execute a personal bond for a sum of Rs.5,00,000/-(Rupees Five lakhs only) with two sureties for the likesum to the satisfaction of the Apprehending Authoriy .
2. They shall not leave the country without prior permission of the Jurisdictional Court.
3. They shall cooperate during the course of investigation.
4. They shall not tamper with the prosecution evidence directly or indirectly.
5. They shall not indulge in similar type of criminal activity.
I.A.No.1/2019 does not survive for consideration.
The same is disposed of.
Sd/- JUDGE SMJ