Arvind Kumar Munka v. Union of India
[Citation -2020-LL-0228-137]

Citation 2020-LL-0228-137
Appellant Name Arvind Kumar Munka
Respondent Name Union of India
Relevant Act CGST
Date of Order 28/02/2020
Judgment View Judgment
Keyword Tags revisional jurisdiction • goods and services tax • commission basis • evade tax • bail • compounding of offence

HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE Present : Hon ble Justice Shivakant Prasad CRM 1259 of 2020 Arvind Kumar Munka Vs. Union of India For Petitioner : Mr. Sekhar Basu Mr. Rajdeep Mazumdar Mr. Moyukh Mukherjee Ms. Arushi Rathore For Union of India : Mr. K. K. Maity CAV on : 24.02.2020 Judgment on : 28.02.2020 petitioner has renewed his prayer for bail under Section 439 of Code of Criminal Procedure, 1973 as his earlier application being CRM No. 10075 of 2019 was rejected by this Court vide order dated 24.12.2019. petitioner prayer for bail was lastly rejected by Court of Judicial Magistrate, 2nd Court, Alipore, 24 Parganas (South) vide order dated 31.12.2019 which is evident from Annexure-P1 being orders. petitioner as I have been found in earlier order that he is Chartered Accountant by profession and with similar contention he has averred that he is no way connected with instant case. petitioner has been arraigned as accused in this case under Section 69 read with Section 132(1) of Central Goods and Services Tax Act, 2017 on allegation that in connivance with other accused persons, namely, Sanjay Kumar Pandit, Nagendra Kumar Dubey alias Sandip Dube, and Mr. Vijay Rajpuriya along with various other persons he allegedly issued GST Invoices without any supply of goods or services to anybody on commission basis causing loss of more than 98 crores approximately. It is submitted that petitioner is in custody since 06.6.2019 and his further detention is not warranted as Charge-sheet has already been submitted on completion of investigation. It is also submitted that petitioner is no way responsible person as no notice was issued under Section 73 of CGST Act, 2017 and has been falsely entangled in this case as he is neither proprietor nor person responsible for running of any proprietary business. Mr. Sekhar Basu learned senior counsel for petitioner reiterated that prosecution has been lodged without sanction of Commissioner which is absolutely contrary to mandates provided under Section 134 of CGST Act as Commissioner has only authorized Investigating Officer to arrest under Section 69 read with Section 132(1) of CGST Act but has not granted sanction under Section 134 of CGST Act and as such instant prosecution is not maintainable. It is further pointed out that peitioner is now extremely sick and suffering from severe chest pain and viral fever from long time and despite his repeated request proper medical treatment was not provided by authority, despite knowing fact that petitioner has been hospitalized from 25th May, 2019 to 28th May, 2019 for proper medical care. It is also submitted that petitioner has not supplied any goods or services or both and did not issue any invoice in violation of provisions of CGST Act, 2017 with intention to evade tax or any of offence enumerated in Section 132 of CGST Act, 2017. Accordingly, petitioner has renewed his prayer for his release on bail in connection with this case now pending before learned Judicial Magistrate, 2nd Court, Alipore, 24- Parganas (South). It woud appear from Order-sheet of Judicial Magistrate, 2nd Court, Alipore, 24- Parganas (South) vide order dated 19.02.2020 that case has been posted on 3rd March, 2020 for production of accused from custody and for consideration of charge. Mr. K.K. Maity learned counsel for opposite party-Union of Inddia reference to decision in case of State of Tamil Nadu Vs. S.A. Raja [2006(1) SCC (Cri.), 58] to submit that second application in absence of change in circumstances, principle of res-judicate are not applicable to bail applications, but repeated filing of bail applications without there being any change of circumstances would lead to bad precedents. Reliance is also placed to case in State of Gujarat vs. Mohanlal Jitamalji Porwal and another [1987 SCC (Cri.) 364] to argue that long incarceration in fail is no ground for releasing accused on bail as in cited case it has been held that mere fact that six years had elapsed, for which time- lag prosecution was in no way responsible, was no good ground for refusing to act in order to promote interest of justice in age when delays in Court have become part of life and order of day. It has been submitted that Community or State is not person- non-grata whose cause may be treated with disdain. entire Community is aggrieved if economic offenders who ruin economy of State are not brought to books. murder may be committed in heat of moment upon passions being aroused. economic offence is committed with cool calculation and deliberate design with eye on personal profit regardless of consequences to Community. disregard for interest of Community can be manifested only at cost of forfeiting trust and faith of Community in system to administer justice in even handed manner without fear of criticism from quarters which view white collar crimes with permissive eye unmindful of damage done to National Economy and National Interest. Again reference to decision in case of Mukesh Jain Vs. CBI reported in (2010) 1 AD (Delhi) 443 : (2010) 88 AIC 319 : (2010) 1 JCC 417 : (2010) 1 LRC 18 is made to observation in paragraph 9 thus 9. It is true that petitioner has been in custody for more than eight months and chargesheet has already been filed, but considering huge amount of public money, being retained by him, his having been in custody for eight months by itself would, in facts and circumstances of this case, not entitle him to grant of bail at this stage. economic offences having deep rooted conspiracies and involving huge loss of public funds whether of nationalized banks or of State and its instrumentalities need to be viewed seriously and considered as grave offences affecting economy of country as whole and thereby posing serious threat to financial health of our country. Therefore, persons involved in such offences, particularly those who continue to reap benefit of crime committed by them, do not deserve any indulgence and any sympathy to them would not only be entirely misplaced but also against larger interest of society. Court cannot be oblivious to fact that such offences are preceded by cool, calculated and deliberate design, with eye on personal gains, and in fact, not all such offences come to surface. If person knows that even after misappropriating huge public funds, he can come out on bail after spending few months in jail, and thereafter, he can continue to enjoy ill-gotten wealth, obtained by illegal means, that would only encourage many others to commit similar crimes in belief that even if they have to spend few months in jail, they can lead lavish and comfortable life thereafter, utilizing public funds acquired by them. In fact, not everyone would mind luxurious living for him and his family, even if it comes at cost of spending few months in jail. strong message therefore needs to be sent to these white collared criminals and those who are waiting in wings, that in long run, it does not pay to be on wrong side of law. Unless it is done, we will not be able to check growing tendency to adopt dubious and illegal means, to get rich overnight so as to be able to enjoy all those luxurious of life, which now are available in abundance, courtesy liberation and globalization of our economy. I do not wish to suggest that time already spent in jail is not relevant consideration in matter of grant of bail or that economic offenders should not at all be enlarged on bail. Of course, we cannot keep anyone in prison for unreasonably long period. But, how much period spent in jail would by itself entitle under trial prisoner to bail, would depend upon facts of each case, including amount of public funds involved, quantum of public funds being retained by him, circumstances in which offence was committed and nature of defence, if any, taken by him. No hard and fast rule can be laid down in such matters and every case has to be examined in light of its individual facts and circumstances. I have heard Mr. Basu learned senior counsel appearing for petitioner and Mr. Maity learned counsel appearing for Union of India and considered my earlier judgment dated 24.12.2019 passed in CRM 10075 of 2019 wherein I have vividly discussed facts and law involved in case and bearing in mind gravity of economic offence and principle as laid in case of P.V. Ramanna Reddy vs. Union of India reported in 2019(26) GSTL J(175) SC holding that though Section 69(1) of CGST, 2017 confers power upon Commissioner to order arrest of person for cognizable and non-bailable offence does not contain safeguard incorporated in Section 41 and 41A of Code of Criminal Procedure, 1973 in view of provision of Section 70(1) of said Act same must be kept in mind before arresting person. However, Section 41A(3) of Code of Criminal Procedure does not provide absolute irrevocable guarantee against arrest, while turning down prayer for release of petitioner on bail and thereby held that petitioner would not be entitled to be enlarged on bail but gave him liberty to approach authority for compounding of offence under Section 138 of CGST Act. I once again reiterate and record that petitioner may be released on bail by learned Trial Court if he finds that he has approached authority for compounding of offence on deposit of at least 20% of evaded amount on account of CGST. In context above, CRM 1259 of 2020 is dismissed. Urgent certified photocopy of this order, if applied for, be supplied to parties upon compliance with all requisite formalities. (SHIVAKANT PRASAD, J.) Arvind Kumar Munka v. Union of India
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