Court No. - 81
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55707 of 2019 Applicant :- Vikas Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Rajiv Lochan Shukla,Abhishek Narayan Pandey,Anand Kumar Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav
Hon'ble Dinesh Kumar Singh- I,J.
Heard Shri Rajiv Lochan Shukla, learned counsel for the applicant and in opposition Shri Gyan Prakash, learned Senior Counsel assisted by Shri Sanjay Kumar Yadav, learned counsel for the Central Bureau of Investigation1 (opposite party no. 2) and Shri Attrey Dutt Mishra, learned Additional Government Advocate for the State of Uttar Pradesh (opposite party no. 1) and perused the record.
2. By way of instant bail application under Section 439 of the Code of Criminal Procedure, 1973, prayer has been made to enlarge the applicant on bail in Crime No. RC1202019 A0005 of 2019, Computer Registration No. 6910 of 2019, under Section 7 of the Prevention of Corruption Act, 1988, Police Station - C.B.I./A.C.B., District - Ghaziabad.
3. One complaint was made by Ajay Kumar, Proprietor, M/s. Ajay Kumar Power Construction, Meerut, addressed to the C.B.I, Anti-Corruption Branch, Ghaziabad, Uttar Pradesh, stating that his firm takes contract with respect to the electricity work of different departments, which has Service Tax No. AJXPA1406ESD001, which was apprised by letter dated 06.08.2019 of Assistant Commissioner, Central Goods and Service Tax, Circle-02 Audit, Meerut, that a team has been constituted for conducting audit of his firm under the leadership of Audit Commissioner, Meerut and his audit was to be held in the month of August, 2019. On 22.08.2019, the applicant called him on phone to his office and demanded a sum of Rs. 8 lakhs as bribe in order to get a favourable audit report, to which he stated that he did not have papers ready and then, the applicant told him that he should not worry about that. But thereafter, the informant/complainant 1 For short 'C.B. I.'
showed his inability to satisfy his demand and assured that he would meet him after he completes his papers, but even then, the applicant told him that he would have to pay the bribe amount, failing which, he would impose much higher penalty than Rs. 8 lakhs. Thereafter, the applicant had various telephonic conversations with the informant and ultimately, he brought down the amount of bribe to Rs. 5 lakhs on phone on 08.09.2019. On this complaint, trap proceedings were conducted against the accused-applicant by the C.B.I. and a report dated 08.11.2019 is on record of these proceedings conducted by Inspector, C.B.I./A.C.B., Ghaziabad, in which it is recorded that investigation revealed after completion of pre-trap proceedings, the C.B.I. team moved to the office of the applicant. Before sending the complainant and the witness to the accused-applicant, the complainant was equipped with Sony DVR for recording the conversation with micro-SD card inserted in it. Thereafter, both the complainant as well as the shadow witness were directed to go, by gesture. The complainant and the witnesses entered into the office premises and found the accused-applicant present in his chamber on the ground floor, in which he was sitting as Superintendent. The witness was not allowed, but the informant was allowed to enter, by gesture. When the applicant was present in his ground-floor chamber, he demanded the bribe there, by gesture. Then the complainant placed the bribe money before him upon table, whereafter, the applicant gestured/directed the complainant to take the bribe money back and put the same in his pocket and accompany him. Then, the applicant took the complainant to Room No. 222 on the first floor, where he used to sit as Superintendent (Audit), where, after some exchange of words, the applicant opened the top drawer of the table and asked the complainant by gesture of left hand to keep the bribe money in the drawer. On his gesture/direction, the complainant did accordingly. Thereafter, the complainant asked the applicant to count the bribe money, to which the applicant refused in humble words. Thereafter, the applicant further demanded the remaining amount of bribe of Rs. 2 lakhs. After acceptance of the bribe amount, the complainant came out and went to the ground floor to inform the C.B.I. team. In between, the applicant concealed the bribe money in an electric switch board of washroom, which was situated at the end of the gallery.
4. Thereafter, the C.B.I. team entered into the office and on being asked, the applicant did not tell as to where he had concealed the said money. However, the bribe money was recovered and after its recovery, the applicant accepted to have demanded the same and also reasons for concealing the same. Further, it is mentioned that during investigation, the C.D.R. of the applicant was collected, which revealed that the applicant and the complainant had spoken over phone a number of times on the dates mentioned by the complainant. The investigation further revealed that one Inspector Kuldeep Singh and a member of the audit team headed by the accused-applicant had prepared letter dated 06.08.2019. In absence of the applicant, the said letter was moved through Pradeep Saxena, Superintendent, for the signature of R.A. Maurya, Assistant Commissioner, Circle Incharge, for seeking 26 documents from the assessee. The investigation further revealed that Inspector Kuldeep Singh claimed that all the documents like unsigned balance sheet, profit and loss account of various years, were provided to him by the advocate of the assessee Mohit Tiwari, who was consultant of the complainant. After receipt of the documents, Inspector Kuldeep Singh calculated the tax evasion and found penalty of Rs. 82,300/- on account of delay in filing S.T.-3 returns, for short payment of service tax of Rs. 43,309/-, penalty of Rs. 6,496/- on short payment of service tax, interest on short payment of service tax Rs. 27,795/-.....etc. The total tax evasion and the interest as well as penalty stood at Rs. 9,28,123/- and the audit was pending in the case till the date of offence i.e. 12.09.2019. Investigation further revealed that the said Inspector Kuldeep Singh put up desk review before the accused-applicant for taking approval from competent authority for conducting audit. The desk review and audit plan were signed by Inspector Kuldeep Singh as well as by the accused-applicant Vikas Kumar, Superintendent, Shri D.D. Mangal, Deputy Commissioner, Shri Amit Gupta, Additional Commissioner, all from G.S.T. Audit Commissionerate, Meerut. The audit plan was approved on 23.08.2019, while field audit was pending and after that, the accused-applicant had to submit his report, for which he demanded bribe. Further, it is mentioned that sanction for prosecution was awaited and the same would be filed after having received the same from competent authority.
5. Against the said evidence, which has come on record, it is argued by learned counsel for the applicant that no recovery of Rs. 3 lakhs has been made of bribe amount from the accused-applicant, the same is being stated to have been recovered from electric switch board in the washroom, which was at the other end of the gallery and therefore, such place cannot be held to be within the periphery of his domain for holding the accused- applicant guilty of illegal (bribe) amount being recovered from his possession. The other amount, which is said to be of Rs. 16,500/-, was found in top drawer of an abandoned office table lying in the lift construction area and the said amount was not the amount of bribe. The applicant has been falsely implicated due to animosity against the complainant, against whom, several complaints were made.
6. It is further mentioned that a Sony DVR provided to the complainant for the purpose of recording the supposed transaction does not appear to have been pressed into service, as no use of the same appears to have been made to bring on record any concrete credible evidence against the applicant. Neither the trap team nor the shadow witness personally heard or saw the demand of the alleged bribe being made or the bribe money being handed over; rather on the contrary, the informant is stated to have kept the bribe money in the top drawer. The money appears to have been miraculously recovered from the electric switch board. Despite there being DVR system present, no recording of seizure or arrest has been made, which creates a strong suspicion in respect of manner of arrest of the applicant. There was no reason to catch hold of the applicant in the manner stated in the memo. The alleged raid at the house of the applicant was contrary to the provisions of law as no permission was obtained from the authority concerned. There does not appear to be any separate memo of recovery of the supposed notes, nor is there anything to indicate that the said notes which were alleged to have been hidden inside the electric switch board, as to who handled the money and how the same was administered to the person handling the money, which was treated with Sodium Carbonate solution. The applicant had not provided the key to the said room, hence, once the said room was found locked, how the key miraculously came into the possession of the trap team, was not clarified. The applicant has an illustrious career and has been awarded many certificates of commendation for his outstanding performance in the year 2011 by the Commissioner, Central Excise and Service Tax. Under what circumstances, the complainant made complaint directly to the C.B.I., is not clear. The complainant hatched a conspiracy in connivance with the C.B.I. and has falsely implicated the applicant in this false case. The complainant's papers were not complete, hence, he did not provide the papers required, despite repeated reminders to him, which is admitted to the complainant. The complainant tried to influence the applicant to settle the matter after giving money, but the same was refused. It is also bizarre as to when no paper was complete, nor any paper was scrutinised nor any tax was assessed, then how come the money was demanded as a bribe? The applicant was not the final authority to assess the final tax, rather, he was simply the head of the team which had to audit the firms on the basis of documents submitted before it. The audit report was required to be submitted to higher authorities for scrutiny and approval for levying the actual tax. The alleged money has been falsely planted upon the applicant, which is shown to be recovered from common washroom used by more than a hundred people. The said amount was neither recovered from his possession nor from his clothes nor from his office nor from drawer of Room No. 222, which was under his direct or indirect command. It is unimaginable that the alleged bribe amount would be put in a manner as stated in common washroom where anybody could move in. How could the applicant come to know that he was going to be trapped, which would lead him to put the money in the washroom, has not been clarified either. It is further argued that the applicant bears no criminal antecedent, has two daughters and an ailing father, suffering from cancer. His mother suffers from arthritis and needs his constant supervision, he being the eldest member of the family. The total amount which could be quantified as penalty, which could be imposed upon him is said to be Rs. 9,28,123/-, for this making demand of Rs. 8 lakhs, then reducing it to Rs. 5 lakhs and thereafter, accepting Rs. 3 lakhs, has no justification and the same appears to be concoction on the part of the trap team. The applicant has still 19 years of service left.
7. In Para 27 of the affidavit, it is mentioned that an amount of Rs. 3,20,000/- is alleged to have been recovered from the house of the applicant. The applicant had withdrawn cash of Rs. 5 lakhs, then Rs. 40,000/- by various cheques mentioned in Para 28 of the affidavit, which were given to the applicant's father. He has numerous receipts of bills of thousands of rupees as cash over a long period of time for treatment of his father, who expired on 05.10.2019. Therefore, in these circumstances, the applicant deserves to be enlarged on bail.
8. This Court is of the opinion that on the complaint of the informant, trap was laid against the applicant. It is the case of the prosecution that an amount of Rs. 8 lakhs was being demanded by the accused-applicant from the informant/complainant of this case in order to give report in his favour, in audit of his company, but the said demand was reduced to Rs. 5 lakhs and out of it, Rs. 3 lakhs is stated to have been recovered from the electric switchboard of the washroom, which is said to be situated in the gallery, not in the chamber of the applicant. The argument of learned counsel for the applicant that such recovery could not be taken as recovery of the said bribe amount from the applicant because the said amount was recovered from a common washroom, to which various people had access, therefore, it was very doubtful that it could be the applicant who would conceal the bribe money there. There is no identification also of the amount of money which is said to have been recovered from the said place as being the bribe money. The evidence reveals that the trap proceedings were followed in accordance with the rules, which involved use of phenolphthalein process etc. Hence, at this stage, it would not be fair to disbelieve the proceedings of trap, particularly in a case where a huge amount of Rs. 3 lakhs is said to have been recovered. The evidence also reveals that there was the charge with the accused-applicant of the proceedings to be initiated against the informant with respect to assessing his tax, regarding which audit was to be conducted and therefore, it cannot be denied, at this stage, that there was strong possibility of the involvement of the accused-applicant in the present case. Therefore, it is not being considered proper to enlarge the applicant on bail, as of now.
10. In the result, the instant application stands rejected .
11. However, it is clarified that observations, if any, made herein above in this bail application shall be strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.
Order Date :- December 16, 2019 I. Batabyal [Dinesh Kumar Singh-I, J.]