Furkan Malik Vs Directorate General of Goods and Services Tax Intelligence Dggi

Neutral Citation No. - 2024:AHC:141040

Court No. - 86

Case :- APPLICATION U/S 482 No. - 27821 of 2024

Applicant :- Furkan Malik Opposite Party :- Directorate General Of Goods And Services Tax Intelligence Dggi Counsel for Applicant :- Abhinav Gaur Counsel for Opposite Party :- Parv Agarwal

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Hon'ble Nalin Kumar Srivastava,J.

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Heard Shri Abhinav Gaur learned Counsel for the applicant, Shri Parv Agarwal, learned counsel for the opposite party and perused the record.

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The instant application has been moved under Section 482 Cr.P.C. by the accused applicant feeling aggrieved with the condition no.4 contained in the order dated 9.12.2020 whereby the Learned Special Chief Judicial Magistrate, Meerut have granted bail to the applicant in Case No. 80/2020 under Section 132(1)(c) and 132 (1)(i) of the CGST Act.

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Apart from this an amendment application has also been moved by the applicant to correct the name of the Magistrate Court mentioned in the application and affidavit annexed therewith.

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Amendment application is allowed. Learned counsel for the applicant is permitted to correct the name of the Magistrate Court during course of the day.

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It is submitted by the learned counsel for the applicant that the Court of Special Chief Judicial Magistrate, Meerut was pleased to grant bail of the applicant in Case No. 80/2020 vide order dated 9.12.2020 in the said case tax evasion to a tune of Rs.5 crore out of

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which Rs.62 lacs and further Rs.45 lacs have been paid by the present accused applicant. Learned Magistrate Court while granting the bail to the accused on merits imposed certain conditions subject to which the accused was entitled for release on bail and the condition no.4 was mentioned like this:

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"4. अभभिययक्त कको यह भिभी आददेभशित भकयया जयातया हहै ककी वह आई० टभी० सभी० ककी शिदेष धनरयाभशि 6 मयाह मम भवभियाग मम जमया करयाकर न्ययायलय कको अवगत करनया सयभनशशश्चित करदेगया। अभभिययक्त इस आशिय ककी अअंडर टदेभकअंग दयाखखिल करदेगया।"

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It is further submitted that as per the legal principle governing the subject, the learned Magistrate was not empowered to impose such a condition or the deposition of rest amount of I.T.C. in the department within a certain time limit. The accused applicant never showed his willingness to deposit the entire outstanding amount due to him as since the very inception of the matter he has categorically denied of any amount of the department due to him relating to I.T.C. It is also submitted that an amount to a tune of Rs.65 lacs and further Rs.45 lacs has been deposited by him with the department but the said amount was deposited by the applicant under protest to the department and it is never meant by such deposit that the applicant has accepted the case of the department. The total outstanding amount which is allegedly due to the applicant is Rs.5 crore and 62 lacs and if condition no.4 aforesaid is enforced the accused applicant will be put under obligation to deposit amount to a tune of about Rs.4 crore which he is never in a position to deposit. It is also submitted that against the order impugned dated 9.12.2020 passed by Learned Special Chief Judicial Magistrate, Meerut a criminal revision was preferred

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before the Sessions Judge, Meerut but his application was rejected as miscellaneous case on 10.8.2021 and subsequently it was dismissed in default by the Sessions Judge, Meerut vide order dated 28.6.2024, hence a prayer has been made to set aside the condition no.4 as mentioned in the impugned order dated 9.12.2020.

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In support of his contention learned counsel for the applicant has placed reliance upon the Judgement of Hon'ble Apex Court passed in Subhash Chouhan Vs. Union of India 2023 SCC Online SC 110 and Yashik Jindal Vs. Union of India 2023 SCC Online SC 417 .

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Per contra, learned counsel appearing from the CGST department vehemently opposed the present application. It has been submitted that the impugned order dated 9.12.2020 passed by the Learned Magistrate was challenged by way of revision by the present accused applicant and the proceeding was terminated as dismissed in default by the Sessions Judge, Meerut vide order dated 28.6.2024 and since it was not an order passed on merits the present application under Section 482 Cr.P.C. before this Court is not maintainable. It is further submitted that some portion of the outstanding amount due to the applicant has already been deposited by him with the department. It is also submitted that in his application for enlargement on bail moved before the Court of Special Chief Judicial Magistrate, Meerut the applicant himself has submitted that he is ready to abide by any condition imposed by the Court to its satisfaction for granting bail to the applicant. On these grounds a prayer for dismissal of the present application has been made.

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Contending to the submissions made by learned C.G.S.T. department, the learned counsel for the applicant has vehemently submitted that the applicant never made any promise to deposit all the outstanding amount allegedly due to him by the department in clear terms and as a matter of fact he is never in a position to deposit the amount to a tune of about Rs.5 crore to the department. It has further been contended that under Section 439 (1) (1)(b) Cr.P.C. the power of the Hon'ble High Court and Court of Sessions is the same and it is the choice of the applicant to chose any forum out of the two to get relief.

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Having heard the counsels for both the sides and keeping in view the fact that no reason was assigned by the learned Magistrate Court while imposing condition no.4 in the bail order dated 9.12.2020 and also the legal position in this regard which has been settled by the Hon'ble Apex Court in Subhash Chouhan Vs. Union of India (supra) where wrongful availment of Input Tax Credit of a huge amount was involved and pre-requisite condition for the bail to deposit the whole outstanding amount was imposed and the Hon'ble Apex Court deprecated such practice and the impugned condition was set aside as being unsustainable.

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In my view, the present application deserves to be allowed. Hence, instant application u/s 482 Cr.P.C. is allowed and condition no. 4 imposed in the order dated 9.12.2020 passed by Learned Special Chief Judicial Magistrate, Meerut is hereby set aside.

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Order Date :- 31.8.2024 Fhd

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Digitally signed by :- FAHAD NIYAZ High Court of Judicature at Allahabad

Furkan Malik v. Directorate General of Goods and Services Tax Intelligence Dggi

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