ORDER

The petitioner who is an accused in Crime No.01/2019 registered at police Station Commercial Tax Anti Evasion Bureau, State Goods and Service Tax (SGST), Jabalpur, District Jabalpur alleging offences punishable u/S.132 (1)(i) State Goods and Service Tax (SGST) Act, 2017 and Section 120B of IPC apprehends arrest and thus has filed this anticipatory bail application u/S.438 of Cr.P.C.

2. Shri Anil Khare, learned senior counsel along with Shri Priyank Agrawal and Shri Banmeet Singh Sarna, learned counsel for petitioner are heard on the question of admission.

3. Learned senior counsel for petitioner submits that the evidence collected in the investigation, which is still pending, is not incriminating. It is submitted that the default of tax evasion under the SGST Act alleged against the petitioner is primarily against co-accused, namely, Amit Awadhiya and Ajay Khanna. It is further urged that the need for custodial interrogation of the petitioner gets obviated by the fact of the petitioner having furnished detailed written submission to the prosecution in response to the summons received by him in 2019 and 2020. It is further submitted by relying upon the decision of Apex Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., AIR 2011 SC 312 that the prosecution merely wants to arrest the petitioner without there being any need for custodial interrogation especially when the petitioner is ready and willing to cooperate in the investigation.

3.1 Learned senior counsel for petitioner has taken this Court to various documents filed along with application and submits that pursuant to summon issued on 19.06.2019 by the Assistant Commissioner, State Tax Officer requiring the petitioner to attend the office of the Investigating Agency on 24.06.2019 could not be complied with by petitioner for being unwell, for which IA/2, a letter dated 24.06.2019 is filed to indicate that petitioner was suffering from UTI and was advised rest from 20/06/2019 for one month. It is further submitted that after the aforesaid summon issued in 2019, there was no further summon issued to the petitioner and, therefore, the petitioner filed a written submission on 17.02.2020 before the Investigating Agency disclosing his stand. In this background it is urged that since petitioner is ready and willing to cooperate in the investigation, the insistence of Investigating Agency to arrest the petitioner is untenable.

3.2 Learned senior counsel for petitioner further contends that petitioner has no relationship with Commercial Corporation as alleged. It is submitted that in fact the co-accused Amit Awadhiya is the proprietor of the said Corporation. Shri Khare further submits that merely because the petitioner has accompanied the co-accused to the Bank for opening of account, does not lead to any inference much less conclusion that the petitioner is involved in the offences alleged. It is submitted that prosecution is merely groping in the dark and has found the petitioner to be an easy target to be falsely implicated.

4. On the other hand, learned counsel for prosecution has produced the case diary submitting that investigation is still pending and in fact has come to a standstill qua the petitioner who has not yet joined the investigation. The prosecution reveals that Farari Panchnama has also been drawn on 13.08.2020 for the petitioner having absconded since he was not found at the given address despite repeated attempts to trace him. Similar Farari Panchanamas prepared from 2020 till date are showing that petitioner was not traceable. It is the contention of counsel for prosecution that in the given facts and circumstances of the case where allegation of large scale tax evasion is involved and the money trail has to be traced to its origin, custodial interrogation of the petitioner is necessary. The prosecution has also drawn the attention of this Court to the fact that various large sums of money were being debited and credited in the bank account of the petitioner during the period 2017 to 2019. The prosecution has also drawn the attention of this Court to the so-called letter of Joint Commissioner, Commercial Tax, State of Madhya Pradesh dated 04.07.2022, informing informing the Branch Manager of Indusind Bank Seoni that since the dispute between petitioner and the Revenue in regard to tax evasion has been resolved, the Bank can defreeze the account of the petitioner. The State counsel points out that this letter dated 04.07.2022 was found to be forged and not issued by the competent authority which is evident from the letter dated 17.08.2022 of the Joint Commissioner, State Tax, Anti Evasion Bureau, Jabalpur. It is also informed the other two co-accused, namely, Amit Awadhiya and Ajay Khanna were arrested and subjected to custodial interrogation and were granted default bail due to failure of prosecution to file charge sheet within 90 days.

5. The Apex Court in Siddharam Satlingappa Mhetre (supra) in regard to the scope and spirit of Section 438, Cr.P.C. laid down the following factors and parameters to be kept in mind while deciding prayer for anticipatory bail :-

“(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused’s likelihood to repeat similar or the other offences.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.

(vii) The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

6. Testing the factual matrix attending the instant case on the anvil of law laid down by Apex Court as aforesaid, it is seen that the petitioner though had sent a request for exempting his appearance in response to the first summon issued in 2019 but thereafter as and when summons were issued and the Investigating Agency tried to trace the petitioner, the petitioner was not found anywhere. Farari Panchanamas were repeatedly drawn by the prosecuting agency after each and every attempt to trace the petitioner, but to no avail. The impression that is given to this Court by this conduct of the petitioner is that he is trying to avoid cooperating with the investigation.

6.1 The investigation qua the petitioner has come to a standstill and, therefore, is awaiting completion since long.

6.2 The material on record produced in the case diary does not reveal that the case against petitioner is a false one. Prima facie it appears that allegations made against the petitioner need to be investigated and since a lot many Institutions and their office bearers/ proprietors/Directors are involved and the money trail has to be traced to its origin, the requirement shown by the prosecution for custodial interrogation of petitioner does not appear to be unreasonable.

6.3 The amount of tax evasion is more than 15 crores, for which though the maximum punishment prescribed is 5 years but considering the fact that the said allegations cast adverse shadow upon the financial health of various institutions including the Bank thereby belying the trust of common man in the even tempo of economic growth, this Court declines to interfere.

7 . This Court hastens to add that the aforesaid comments made by this Court are merely for the purpose of deciding this bail application and thus will not adverseley affect any of the rights and liabilities of the rival parties during investigation or trial.

8. In view of above discussion and the fact that this Court prima facie feels from the complexity of allegations where very large tax evasion is involved and the money trail has to be traced to its origin, the demand of prosecution for custodial interrogation of petitioner appears to be reasonable.

9. Consequently, looking to the gravity of offence and the requirement of custodial interrogation and also as informed by prosecution counsel that the petitioner has criminal antecedents of similar nature, this Court declines interference.

10. Accordingly, present bail application u/S.438 of Cr.P.C. stands dismissed.