ORDER

HON’BLE DEEPAK VERMA, J.

Heard Sri Ashish Mishra, learned counsel for the applicant, Sri Neeraj Kumar Singh holding brief of Sri Dhananjay Awasthi, learned counsel for the informant, learned AGA for the State and perused the material placed on record.

This first bail application has been filed with the following prayer :-

“It is therefore most respectfully prayed that this Hon’ble Court may graciously be pleased to set aside/delete the condition imposted upon the applicant for depositing 10% amount of Rs.7 crores and 7 lacs to the concerned department within a period of two months from the date of passing of bail order granted by the learned Sessions Judge, Meerut in Bail Application No.5687/2021 [Mursaleen Vs. Union of India, through Directorate General of GST Intelligence (DGGI)] in Case No.117/2021, Police Station DGGI, Meerut.”

It is alleged in the FIR that the applicant is engaged in fraudulently claiming and utilizing of the Input Tax Credit on the strength of the invoices/bills received without actual receipt of the goods from certain non-existing firms. Further it was alleged that the applicant had been receiving raw material from certain supplier-firms which appeared to be indulged in passing on of fraudulent ITC by way of issuing invoices/bills without any concomitant supply of goods and the ITC so availed was arrived out to be the tune of Rs.12.55 crores for the period of April, 2019 to 2020.

Learned counsel for the applicant submitted that the applicant is innocent and has been falsely implicated in the present case due to ulterior motive. The applicant has been intentionally dragged in the present case. Senior Intelligence Officer, Directorate General of GST Intelligence, Zonal Unit, Meerut summoned the applicant for recording his statement under Section 70 of the C.G.S.T. Act, 2017. Special Chief Judicial Magistrate vide order dated 03.09.2021 took the cognizance in the matter and authorized the Investigating Officer to arrest the applicant under Section 132(1)(C) of the C.G.S.T. Act, 2017 punishable under Clause (i) of Section 132(1) of the C.G.S.T. Act, 2017 and applicant was arrested on 03.09.2021 and sent to jail. Applicant moved bail application before the learned Sessions Judge, Meerut and the Sessions Court vide order dated 24.09.2021 allowed the bail application and granted bail to the applicant with following certain conditions :-

(i) The applicant will file a personal bond of Rs.1 lac.

(ii) Two sureties of equal amount to the satisfaction of the concerned court.

(iii) On giving undertaking to the effect that the applicant within two months from today, will deposit 10% amount of Rs.7 crores and 7 lacs in the concerned department, if the applicant falls short of this condition, on 61st day, the learned Magistrate may issue warrant for the arrest of the applicant.

He further argued that the applicant is innocent and nothing to say that allegation which is being roped in impugned order dated 24.09.2021 has wrongly recorded that the applicant was ready to deposit 10% of the amount as at no stage the applicant made such statement by himself or through his counsel. There is no statutory provision of depositing the aforesaid amount without completing the investigation against the applicant. He has placed reliance upon the judgment of Hon’ble The Apex Court passed in Special Leave to Appeal (Crl.) No.1274 of 2021 in the case of Manoj Kumar Sood and another Vs. State of Jharkhand. The concerned paras are quoted herein below:-

“It is well settled by a plethora of decisions of this Court that criminal proceedings are not for realization of disputed dues. It is open to a Court to grant or refuse the prayer for bail, depending on the facts and circumstance of the particular case. The factors to be taken into consideration, while considering an application for bail are, the nature of accusation and the severity of the punishment in the case of conviction; the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character behaviour and standing of the accused; the larger interest of the public or the State and similar other considerations. A Criminal Court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.

In Shyam Singh Vs. State through CBI reported in (2006) 9 SCC 169 on which reliance has been placed on behalf of the petitioner, this Court categorically held that it is open to a Court to grant or refuse bail but to say that offence has been committed even at the stage of granting bail and to direct repayment of any amount is both onerous and unwarranted.

As held by this Court in Anil Mahajan vs. Bhor Industries Ltd. reported in (2005) 100 SCC 228, the substance of the complaint is to be seen. If criminal proceedings are unwarranted, there can be no question of custody and in no circumstance can bail be made subject to the terms, which tantamount, in effect, to execution at the inception.”

He has placed reliance on Hon’ble Apex Court’s judgment passed on 19.01.2021 in the case of Dilip Singh Vs. State of Madhya Pradesh and another, (2021) 2 Supreme Court Cases 779. Further he has placed reliance on the judgment passed by Hon’ble Apex Court on 01.10.2020 in the case of Parvez Noordin Lokhandwalla Vs. State of Maharashtra and another, (2020) 10 Supreme Court Cases 77 in which para 14 is quoted hereinbelow:-

“14. The language of Section 437(3) of the Cr.P.C. which uses the expression “any condition… otherwise in the interest of justice” has been construed in several decisions of this court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437 (3) and 439 (1) (a) of the Cr.P.C., the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.”

Per contra, learned counsel for the informant and learned A.G.A. vehemently opposed the bail prayer of the applicant and submit that the applicant has taken ITC by making fraudulently invoices and gain the ITC to the tune of Rs.12.5 crores for the period of April, 2019 to April, 2020. The learned Sessions Judge has put the condition No.3 that within two months from today the applicant has to deposit 10% amount, i.e., Rs.7 crores and 7 lacs to the concerned department, if the applicant fall short of this condition, on 61st day, the learned Magistrate may issue warrant for arrest of the applicant.

The applicant challenged the impugned order dated 24.09.2021 and bail application was moved on 25.11.2021 and as 61st day expired on 25.11.2021. Applicant has to furnish the undertaking as per the order dated 24.09.2021 passed by learned Sessions Judge, Meerut, failing which, bail application may be rejected. Applicant’s counsel while arguing bail application before learned Sessions Judge had made prayer that applicant is ready to deposit 10% of the liability to the tune of Rs.7 crores and 7 lacs and learned Sessions Judge after considering his offer, granted bail to the applicant and thereafter applicant cannot withdrew himself from prayer made before the learned Sessions Judge, Meerut.

Learned counsel for the informant has placed reliance upon the judgment of Hon’ble The Supreme Court passed in the case of Chhaya Devi Vs. Union of India and another, Special Leave to Appeal (Crl.) No.3313 of 2021, in which Supreme Court has released the applicant on bail with condition that applicant would deposit the amount.

Considering the facts and circumstances of the case and submissions advanced by learned counsel for the parties and it is evident that the instant bail application has been filed for quashing of the order of condition No.3 passed on 24.09.2021 and at the time of argument before trial court applicant was agreed with condition No.3 therefore trial court directed to deposit 10% of the amount of Rs.7 crores and 7 lacs in the concerned department, failing which, learned Magistrate may issue warrant for arrest. It is also clear from perusal of the order passed by learned Sessions Judge that applicant made prayer before Sessions Judge while arguing the bail application that he was ready to pay the 10% of Rs.7 crores and 7 lacs and learned Magistrate considered his prayer and granted bail. After getting bail, applicant withdrew himself from argument raised before Sessions Judge. The trial court after considering prayer and granted bail with condition. It appears that court has granted bail after considering submission of applicant. Applicant before trial court put a condition for getting bail before learned Sessions Judge now he cannot say that he is not in a position to deposit the amount as condition imposed by learned Sessions Judge on his prayer, as such, in this condition this Court is not inclined to interfere in condition imposed by the trial court as this stage.

The Hon’ble Apex Court in his judgement has passed the order in Chhaya Devi Vs. Union of India and another, which are entirely different from the present case as condition has been imposed on prayer of the applicant, hence, the reliance placed by the applicant over Hon’ble The Apex Court judgment, is not applicable in the present case.

Looking to seriousness and gravity of offence, evidence, complicity of the accused, I do not find it is a fit case for bail to the applicant.

Accordingly, the bail application of the applicant-Mursaleen Tyagi involved in aforesaid case is hereby rejected at this stage.