Follow Us :

Case Law Details

Case Name : Shubham Khandelwal Vs State of NCT of Delhi (Delhi High Court)
Appeal Number : Bail Appln. 1329/2022
Date of Judgement/Order : 08/02/2023
Related Assessment Year :

Shubham Khandelwal Vs State of NCT of Delhi (Delhi High Court)

Delhi High Court held granted bail, in fraudulent claim of ITC under GST, as bail already granted to co-accused and petitioner had no prior criminal antecedents.

Facts- The present FIR was registered on a complaint dated 14.11.2018 filed by Assistant Commissioner, VATO against one Mr. Sanjay Garg, proprietor of M/s Saraswati Enterprises. The allegations in said FIR are related to unauthorized and fraudulent claim of input tax credit in respect of Goods and Services Tax (‘GST’) by M/s Saraswati Enterprises.

After investigation, chargesheet was filed on 08.10.2021, wherein the present applicant and his co-accused Pulkit was sent for trial with the allegation that they had set up a number of fictitious companies, which were being used for purposes of defrauding the Government. It was alleged that the accused persons, including the present applicant, had opened bank accounts in fictitious names and provided their telephone numbers and email addresses in that respect.

Present application under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeks grant of regular bail.

Conclusion- The present applicant has been in judicial custody since 17.07.2021, the chargesheet and the supplementary chargesheet have already been filed. This Court is of the view that the present applicant is similarly placed to the co-accused Pulkit who has already been granted bail by a coordinate bench of this Court vide order dated 12.04.2022 in BAIL APPLN. 21/2022.

As per the status report, there are no prior criminal antecedents of the present applicant and no useful purpose will be served by keeping the applicant in judicial custody any further.

In view of the facts and circumstances of the present case, the application is allowed.

FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT

1. Present application under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeks grant of regular bail in case FIR No. 263/2018 under Sections 177, 200, 409, 420, 465, 467, 468, 471, 120-B of the Indian Penal Code, 1860 (‘IPC’), Section 132 of the Central Goods and Services Tax Act, 2017 (‘CGST Act’) and Section 66C and 66D of the Information Technology Act, 2002 (‘IT Act’), registered at PS Economic Offences Wing, Mandir Marg.

2. The present FIR was registered on a complaint dated 14.11.2018 filed by Assistant Commissioner, VATO against one Mr. Sanjay Garg, proprietor of M/s Saraswati Enterprises. The allegations in said FIR are related to unauthorized and fraudulent claim of input tax credit in respect of Goods and Services Tax (‘GST’) by M/s Saraswati Enterprises.

3. After investigation, chargesheet was filed on 08.10.2021, wherein the present applicant and his co-accused Pulkit was sent for trial with the allegation that they had set up a number of fictitious companies, which were being used for purposes of defrauding the Government. It was alleged that the accused persons, including the present applicant, had opened bank accounts in fictitious names and provided their telephone numbers and email addresses in that respect.

4. Learned counsel for the applicant submits that the applicant was arrested on 13.07.2021 and has been in judicial custody since then. It is submitted that chargesheet in the present FIR was filed on 08.10.2021 and a supplementary chargesheet has also been filed before the learned trial Court on 25.03.2022. It is submitted that the investigation is complete and further custody of the applicant is not required for any purpose. It is further submitted that the evidence brought on record by way of the aforesaid chargesheets is documentary in nature.

5. Learned counsel for the applicant also seeks parity with co-accused Pulkit, who was granted bail by a coordinate bench of this Court vide order dated 12.04.2022, in BAIL APPLN. 21/2022.

6. Learned counsel for the applicant relies upon the following paragraphs of the aforesaid order, which are reproduced as under:

“3. The chargesheet has since been filed on 08.10.2021, wherein the applicant has been named as an accused. The allegation against the applicant is that he and a co-accused [Shubham Khandelwal] have set up a number of fictitious companies, which are being used for the purposes of defrauding the government. It is contented that the accused persons have opened banks accounts in fictitious names and provided their telephone numbers and email addresses in this respect.

xxx

8. Having heard learned counsel for the parties, I am of the view that the chargesheet and a supplementary chargesheet having been filed, the applicant is entitled to bail in the facts and circumstances of the case. From the Status Report quoted above, it appears that the main link of the present applicant with the transactions in question: is on the basis of the use of the mobile No. 9015824684 and his email address. As far as the mobile number in question is concerned, the chargesheet and the Status Report reveal that it was transferred to the applicant only on 13. 03.2018. The email addresses mentioned in paragraph 6 of the Status Report were also accessed not through the applicant but through another party. In the Status Report, the prosecution has made out a case that the applicant, in conspiracy with Shubham Khandelwal, had registered various bogus firms and opened fictitious bank accounts. The events mentioned in paragraphs 7 and 8 all relate to the year 2017. There is no suggestion in the Status Report that the applicant neither has prior criminal antecedents nor is there any material to suggest that he is a flight risk. The applicant has been in custody for a period of approximately nine months since 14.07.2021. The evidence in the present case is largely documentary, and has already been placed before the Trial Court. The chances of the applicant tampering with the evidence is therefore unlikely.

9. The seriousness of the offences alone is not conclusive of the applicant’s entitlement to bail, as held by the Supreme Court inter alia in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 in the following terms:

“23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction ahs a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

24. In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor; the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”.

25. The provision of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. “

7. Relying on the aforesaid observations made by coordinate bench of this Court, while granting the bail to the co-accused, Pulkit, it is urged that the present applicant is also similarly placed.

8. Per contra, learned APP for the State submitted that the order granting bail to the co-accused Pulkit is distinguishable on the ground that the e-mail on the basis of which fake GST account was registered belonged to the present applicant. Learned APP for the State had sought time to clarify the same by way of an additional status report. The additional status report dated 01.02.2023 has been placed on record, wherein it is stated that the email pulkitgoyal95@gmail.com was used in the account opening form of M/s Saraswati Enterprise and the said email was found in the name of Pulkit Goyal.

9. Heard learned counsel for the parties.

10. The present applicant has been in judicial custody since 17.07.2021, the chargesheet and the supplementary chargesheet have already been filed. This Court is of the view that the present applicant is similarly placed to the co-accused Pulkit who has already been granted bail by a coordinate bench of this Court vide order dated 12.04.2022 in BAIL APPLN. 21/2022.

11. As per the status report, there are no prior criminal antecedents of the present applicant and no useful purpose will be served by keeping the applicant in judicial custody any further.

12. In view of the facts and circumstances of the present case, the application is allowed.

13. The applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- (Rupees One Lakh) alongwith two sureties of the like amount to the satisfaction of the learned Trial Court/Link Court, further subject to the following terms and conditions:

i. The memo of parties shows that the applicant is residing at 138, 2nd Floor, Pocket E, Block-18, Sector 3, Rohini, Delhi. In case of any change of address, the applicant is directed to inform the same to the learned Trial Court and the Investigating Officer.

ii. The applicant shall not leave India without the prior permission of the learned Trial Court.

iii. The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times.

iv. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner.

v. The applicant shall join the investigation, as and when required by the Investigating Officer.

vi. In case it is established that the applicant tried to tamper with the evidence, the bail granted to the applicant shall stand cancelled forthwith.

14. Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case.

15. The application stands disposed of along with all the pending application(s), if any.

Join Taxguru’s Network for Latest updates on Income Tax, GST, Company Law, Corporate Laws and other related subjects.

Leave a Comment

Your email address will not be published. Required fields are marked *