Final Order 9

Order Details: COPY OF JUDICIAL PROCEEDINGS
Pdf Text: IN THE COURT OF SPECIAL JUDGE (PC ACT) (ACB)-02,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
Presided Over by: Ashish Aggarwal, DHJS
Bail Application No.223/2024 and IA No(s). 3/2024, 8/2024 and 9/2024
State v Vishal Kumar, Surjeet Singh, Raj Singh and Narender Kumar Saini
FIR No.5/2023
PS Anti-Corruption Branch
21.12.2024
File is taken up today on an application under Section 439 of Code of Criminal
Procedure, 1973 filed by accused Vishal Kumar and three applications under
Section 483 of Bhartiya Nagarik Suraksha Sanhita, 2023 filed by accused
persons Surjeet Singh, Raj Singh and Narender Kumar Saini.
Present : Sh. Manoj Kumar Garg, Ld. Public Prosecutor for State.
1. The applications for bail filed by accused persons Vishal Kumar, Surjeet
Singh, Raj Singh and Narender Kumar Saini are proposed to be decided by
this common order.
2. The submissions advanced by Ld. Counsels for accused persons Raj
Singh and Narender Kumar Saini are set forth, briefly, as follows:
(a) that co-accused Mukesh Kumar Saini has been granted bail by order
dated 18.12.2024;
(b) that the role of the applicants is identical to that alleged against accused
Mukesh Kumar Saini;
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(c) that the order of taking cognizance has been stayed by order dated
10.12.2024 passed by the Hon’ble High Court of Delhi and the custody
of the applicants now is illegal;
(d) that the amount received as GST refund by the firms allegedly
controlled by the applicants and their relatives is stated in the charge-
sheet to be only Rs.3,64,78,818/- as against the sum of Rs.35.61
Crores which is stated to be sanctioned in all;
(e) that the charge-sheet shows that statements of numerous drivers and
transporters were recorded by the investigating officer but they do not
name the applicants;
(f) that the reasons of arrest spelled out in the arrest memo mentions
about applicant Raj Singh being involved in bribing the GST officer but
the investigation does not show any such act done by the accused;
(g) that the charge-sheet mentions about recovery of several incriminating
documents from the possession of one Ravi Mehra who was employee
of Tarun Verma but no action at all has been taken against the said
persons which shows that the investigating officer is patronizing the
said persons;
(h) that the charge-sheet shows that the statements of Ashwani Kumar
Pandey and Akhilesh Kumar Pandey were recorded who state that they
simply followed instructions and aided the commission of the offence,
yet the said persons have not been made an accused;
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(i) that the charge-sheet makes mention of 96 firms which had already
obtained GST refund from the same GST officer but the applicants are
not owners or authorized signatory of the firms;
(j) that no action has been taken against the owners or authorized
signatory of the firms;
(k) that the name of applicant Raj Singh does not figure in the list of
persons who did not file their income tax returns;
(l) that the charge-sheet also shows that thirty-four mobile phone numbers
have been used by bogus firms but the name of the applicants did not
figure in the CAF of any of the mobile phone numbers;
(m) that as per charge-sheet, scrutiny of bank account statements revealed
that GST refund was routed to the offenders through bogus firms and it
eventually landed into their accounts and that of their family members
but even after the said scrutiny, the applicants were not found to be
among the ultimate beneficiaries of the said money since the outgoing
funds in the accounts were more than the incoming funds and the
persons to whom the said funds came to be transferred were not
proceeded against by the investigating officer;
(n) that the applicants cooperated in investigation and had joined
investigation as and when called by the investigating officer;
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(o) that the investigating officer has left out certain individuals and entities
whose involvement is writ large from the record for reasons best known
to him;
(p) that the mala fide conduct of the investigating officer raises serious
questions regarding his bias towards certain entities which need to be
looked into by the Court;
(q) that this Court needs to take cognizance of the fact that the
investigating officer has chosen to let off certain individuals and entities
who were similarly replaced and who are directly connected with the
same transactions;
(r) that out of the GST refund of Rs.36 Crores which was allegedly
wrongfully sanctioned, the role of the applicants and their relatives has
been alleged to be of about Rs.3.64 crores whereas there is no
investigation about the individuals and entities who were involved in
taking refund of the remaining sum of about Rs.33 crores;
(s) that the investigating officer has proceeded in a mala fide manner and
this is also a ground for bail as per judgments reported as Binoy Jacob
v CBI 1993 SCC OnLine Del 53, R. Vasudevan v CBI, Bail Appl
No.2381/2009 dated 14.01.2010, Ramesh Manglani v Directorate of
Enforcement, Bail Application No.3611/2022 dated 30.05.2023, Dr.
Bindu Rana v SFIO 2023 SCC OnLine Del 276 and State of Madhya
Pradesh v Sheetla Sahai & Ors. (2009) 8 SCC 617;
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(t) that the prosecuting agency has not arrested or interrogated the direct
beneficiaries whose involvement is revealed in the FIR and the charge-
sheet;
(u) that there is nothing to show the alleged demand and acceptance of
illegal gratification as required by Sections 7 and 13(2) of the
Prevention of Corruption Act, as also laid down in the case of Neeraj
Dutta v State (2023) 4 SCC 731;
(v) that the case against the applicants is based on disclosure statement of
co-accused persons and the same is inadmissible in evidence as per
the decision of Hon’ble Supreme Court in the case of Haricharan Kurmi
v State of Bihar (1964) 6 SCR 623;
(w) that it is not open to the investigating agency to, of its own, discharge
an accused person whose involvement is disclosed by the facts, and to
use his statement against co-accused persons as has been done in this
case;
(x) that Section 467 of IPC has been added by the investigating officer only
to increase the gravity of the offence even though it is not made out
from the facts of the case;
(y) that disclosure statements cannot be the sole basis of continued
incarceration of the applicants;
(z) that the applicants are respectable citizens with deep roots in society;
(aa)that the applicants are not a flight risk;
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(ab) that the case of the prosecution is based on documents which have
already been seized by the investigating officer;
(ac) that the applicants cannot be kept in custody as a punitive measure;
(ad) that the applicants satisfy the triple test laid down by the Hon’ble
Supreme Court in the case of P. Chidambaram v Directorate of
Enforcement (2019) 9 SCC 24.
(ae) that there are 191 witnesses and voluminous documents running into
thousands of pages and the trial is not likely to be completed any time
soon;
(af) that in the circumstances, the applicants have to be released on bail in
view of the decision of Hon’ble Supreme Court in the case of Manish
Sisodia v Directorate of Enforcement 2024 SCC OnLine SC 1920;
(ag) that the Court has no basis for inferring that the applicants will influence
witnesses in view of the decisions of Hon’ble Supreme Court in the cases
of Sanjay Chandra v CBI (2012) 1 SCC 40 and P. Chidambaram v
Directorate of Enforcement (2019) 9 SCC 24;
(ah) that the charge-sheet shows that physical verification was done at the
addresses of certain firms that had taken undue GST refund but the
addresses were found to be incorrect, yet no action has been taken
against the owners/controllers of the said firms;
(ai)no action has been taken against one Mr. Vipin Kumar Singh whose
involvement is disclosed in the charge-sheet itself;
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(aj)that the identity of the forger regarding the document mentioned in page
91 of the charge-sheet has not been disclosed;
(ak) that no action has been taken by the investigating officer against
Rameshwar Kumar, Raj Kumar, Sameer and several other persons who
were directly involved in commission of offences as per the charge-sheet
itself;
(al)that in the list mentioned on pages 191 and 192 of the charge-sheet,
persons who gave incorrect addresses in order to commit these offences
have been named and no action has been taken against the persons
except accused Hanzala and Intazar;
(am) that rent agreement and partnership deed which are alleged to have
been forged were duly notarized but the investigating officer has not
examined the notary to know if the documents were forged;
(an) that the previous application for bail of the applicants had been
dismissed on 29.11.2024;
(ao) that there is a material change in circumstances after dismissal of
previous applications because:
i. a co-accused person having similar role has been released on bail;
ii. the order of cognizance has been stayed after dismissal of the
previous bail application rendering the custody of the applicant illegal
and entitling the applicant to be immediately released on bail.
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iii. the investigating officer has been persisting in discriminatory
treatment by avoiding to arrest or indict persons whose involvement has
surfaced;
iv. as held in the case of Kanchaman Yonjan v State (2024) SCC
OnLine Del 4734, each day spent in custody provides a new cause of
action to seek bail;
v. owing to the further investigation being carried out and orders passed
by different Courts there is a stalemate reached due to which neither
trial can proceed nor investigation is making progress.
3. Ld. counsel for the said applicants has relied upon judgments reported as
Kanchaman Yonjan v State (2024) SCC OnLine Del 4734, Vishnu Ram
Chandra Maheshwari v State of M.P. (1999) 1 MPLJ 516; Banu Singh v
Emperor (1906) ILR 33 CAL 1353, Laxmandas Chaganlal Bhatia & Ors. v
State (1966) SCC OnLine BOM 17, Laxmipat Choraria & Ors. v State of
Maharashtra AIR 1968 SC 938, Malvinder Mohan Singh v State of NCT of
Delhi (2023) SCC OnLine Del 3487, Haricharan Kurmi v State of Bihar (1964)
6 SCR 623, Sheila Sebastian V. R. Jawaharaj & Anr. (2018) 7 SCC 581, Babu
Singh & Ors. V State of U. P. (1978) 1 SCC 579, Neeraj Dutta v State (2023) 4
SCC 731, Manish Sisodia v Directorate of Enforcement 2024 SCC OnLine SC
1920, Ramesh Manglani v Directorate of Enforcement, Bail Application
No.3611/2022 dated 30.05.2023, Chandra Prakash Khandelwal v Directorate
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of Enforcement Bail Application No.2470/2022 dated 23.2.2023 and P.
Chidambaram v Directorate of Enforcement (2019) 9 SCC 24.
4. Ld. Counsel for applicant/accused Surjeet Singh has argued that the
applicant is innocent; that it is not the case of the prosecution that the
applicant was involved in any act of corruption; that the applicant is running a
transportation business; that the entire evidence is documentary in nature and
documents are in the possession of Anti-Corruption Branch; that trial is not
likely to be completed any time soon; that there is no possibility of the
applicant tampering with evidence or influencing witnesses.
5. Ld. counsel for applicant/accused Surjeet Singh has relied on the
judgments reported as Sanjay Chandra v CBI (2012) 1 SCC 40, Manish
Sisodia v Directorate of Enforcement SLP (Crl.) No.8772/2024 dated
09.08.2024, P. Chidambaram v Directorate of Enforcement (2019) 9 SCC 24.
6. Ld. Counsel for applicant/accused Vishal Kumar has advanced
arguments similar to that of other accused persons. In addition, it is argued
that the applicant was only a chartered accountant and he gave his certificates
as per information received by him; that the applicant was arrested without
giving him a chance to join investigation; that there is no allegation of giving of
bribe by the applicant; that the applicant was only paid his fee for his services,
and has not benefited from the sanctioning of GST refund; that the applicant
was released on interim bail and he did not misuse the said benefit; that the
applicant has to look after his ailing family members.
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7. Ld. counsel for applicant/accused Vishal Kumar has relied upon
judgments reported as Puneet Mohnot v State of Rajasthan S. B. Criminal
Miscellaneous Bail Application No.8721/2022 dated 21.06.2022, Anuj Gupta v
Central Bureau of Investigation Bail Application No.279/2022 dated
23.02.2022, Sharat Babu Digumarti v Govt. of NCT of Delhi Criminal Appeal
No.1222/2016 and Jainam Rathod v State of Haryana & Anr. Criminal Appeal
No.640/2022.
8. Ld. Public Prosecutor has opposed the applications for bail by referring
to previous orders of this Court. He has, however, not been able to respond to
the query of the Court as to how the accused persons can be kept in custody
after stay of the order of cognizance.
9. I have gone through the record.
10. Co-accused Mukesh Kumar Saini has been granted bail by order dated
18.12.2024. The applicants have sought bail on the ground of parity. It is not
the case of the prosecution that the role played by the applicants was greater
than that of co-accused Mukesh Kumar Saini. The grounds of bail apply to the
applicants as well. The reasons for grant of bail are extracted from the order,
as under:
“The only ground that subsists which the prosecution is canvassing in order to
stymie the prayer for bail is the gravity of the offence. However, as held in the
case of P. Chidambram (supra) and Sanjay Chandra (supra), this ground
alone cannot preclude the grant of bail.
One can also not lose sight of the fact that cognizance of the offences has
been taken by order dated 08.11.2024. However, the order of taking
cognizance has been stayed by order dated 10.12.2024 passed by Hon’ble
-- 10 of 17 --
High Court of Delhi in WP(Crl.) No.3859/2024. Since the order of cognizance
has been stayed, the applicant cannot be remanded to custody under Section
309 of Code of Criminal Procedure. Nor can Section 167(2) of Code of
Criminal Procedure be pressed into service since investigation qua the
applicant is reported to be complete and also because the period prescribed
under Section 167(2) Proviso of Code of Criminal Procedure has expired.
Another factor that needs to be taken into consideration is that owing to further
investigation which is pending, the trial of the applicant cannot commence. If
the applicant is left to languish in custody for the said further investigation to
be completed, it would frustrate the objective of Section 167(2) Proviso of
Code of Criminal Procedure which guarantees to the accused the right not to
be detained beyond ninety days on account of pendency of investigation.
It has been stressed by Ld. Counsel for applicant/accused that there are
several persons against whom the investigating officer did not proceed despite
the fact that their role was identical to that of the applicant. Ld. Counsel for
applicant/accused has alleged discriminatory treatment on the part of the
investigating officer.
The charge-sheet discloses the role played by Akhilesh Kumar Pandey. Yet
he has not been made an accused. An exculpatory statement has been
recorded suggesting that somebody may have forged the signatures of the
said person but no attempt has been made to find out whether the signatures
were actually forged and if so what was the identity of the forger. It is not even
the case of the prosecution among the allegations enlisted in the charge-sheet
that the signatures have been forged by somebody else. It appears that it is
nobody’s case that signatures of the said person were forged and there is also
no explanation as to why the said person would submit his identity related
documents to somebody else. This person has not been arrayed as an
accused without any explanation. He is not the only person so left out. There
are scores of persons who have neither been arrested nor proceeded against
although the allegations point towards their involvement to an extent greater
than those indicted.
In the charge-sheet, there are details of ninety-six firms that were sanctioned
undue refund allegedly in connivance with the same GST officer. However,
only a handful of those firms have been proceeded against by the Anti-
Corruption Branch and regarding the others there is a studied silence. Even
among the firms that have been so chosen, there are only some of the
persons in their management who have been arrested by the investigating
officer.
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The only entity with which the applicant is shown to be associated is M/s. S.
Satyam Aviation Pvt. Ltd. As per the statement of the applicant which is part of
the charge-sheet, there are three directors in the said entity. The other
directors in the company are stated to be Harshit Saini and Sanket Mahesh
Patil. Neither of them have been arrested and it is nowhere stated that the
said directors were unaware of the business and operations of the said entity.
It does not behove an investigating officer to randomly pick up one person or
one entity in the chain of money trail and foist responsibility for the crime upon
him, while leaving out the prime offender who directly committed the offence.
In case of Chandra Prakash Khandelwal v Directorate of Enforcement Bail
Application No.2470/2022 dated 23.2.2023, the Hon’ble High Court of Delhi,
while granting bail to the accused took note of the fact that no action was
taken against the intermediary company through which the link had
proceeded. The following passage is relevant:
“It is submitted the action was not taken upon the
intermediary companies then how can action could be
taken against an investment company which is down in
the line, more specifically when the investment were
accepted prior to 2014 when till that time the PACL was
not declared as a corrective investment scheme.
xxx
Moreso, Ramchand Karunakaran, Managing Director vs.
Directorate of Enforcement in CRL.A.1650/2022 decided
on 23.09.2022; Dr. Bindu Rana v Serious Fraud
Investigation Office in Bail Appln.3643/2022 decided on
20.01.2023, the bail was granted in PMLA and SFIO
cases where co-accused with similar roles were not put to
custody by the agency.
xxx
What weight the statements under Section 50 of PMLA
would carry at the end of trial cannot be tested at the
stage of bail, more importantly when the intermediary
companies were never made an accused in the present
ECIR.”
In the case of Ramesh Manglani v Directorate of Enforcement, Bail Application
No.3611/2022 dated 30.05.2023, bail was granted by taking into account that
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similarly placed co-accused persons had not been arrested by the
investigating agency. The relevant passage is extracted thus:
“Insofar as the ED not having arrested similarly placed co-
accused persons; and not even having arraigned some
other persons evidently connected with the offending
transactions as accused in the prosecution complaint,
though these aspects would not be dispositive of a bail
plea one way or the other, they are also not wholly
irrelevant and the ‘doctrine of parity’ is not immaterial. As
held by this Court in Ashish Mittal (supra) considering the
nature of the offence, where the gravamen of the offence
is that several persons acting in concert have siphoned-
off and ‘laundered’ monies, it is manifestly arbitrary for the
ED to have made selective arrests and arraignments.”
The above judgments apply on all fours since a reading of the charge-sheet,
supporting documents and statements under Section 161 of Code of Criminal
Procedure show that the Anti-Corruption Branch has been proceeding against
persons in a selective manner. The liberty of a citizen cannot be left at the
mercy of the whims of the investigating officer.
In this background, it is also to be noted that the name of the applicant does
not figure in the list of twenty-four firms mentioned in the charge-sheet as
those chosen to be investigated and to whom the GST refund was allegedly
sanctioned. It is not the case of the prosecution that any of the mobile phone
numbers used for registering the said firms belongs to the applicant.
Just because some money was received in the account of the company in
which the applicant was a director, it cannot be said that the applicant was
involved in making a false claim of GST refund, more particularly when the
GST refund was not claimed by the entity owned by the applicant and when
no action has been taken against the entity which claimed the refund or its
controller.
There is nothing to show that the applicant had committed any forgery of a
document. The standard required to be achieved before one can be alleged to
be involved in forgery is laid down by Hon’ble Supreme Court in the case of
Sheila Sebastian V. R. Jawaharaj & Anr. (2018) 7 SCC 581 wherein it was
observed as follows:
“Keeping in view the strict interpretation of penal statue
i.e. referring to rule of interpretation wherein natural
inferences are preferred, we observe that a charge of
forgery cannot be imposed on a person who is not the
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matter of the same. As held in plethora of cases, making
of a document is different than causing it to be made.”
In the present case too the applicant is not alleged to be the maker of the
document. In the aforesaid decision, the Hon’ble Supreme Court went on to
conclude as follows:
“Law is well settled with regard to the fact that however
strong the suspicion may be, it cannot take the place of
proof. Strong suspicion, coincidence, grave doubt cannot
take the place of proof. Always a duty is cast upon the
Courts to ensure that suspicion does not take place of the
legal proof. In this case, the trial Court as well as the
appellate Court carried away by the fact that accused is
the beneficiary or the executant of the mortgage deed,
where the prosecution miserably failed to prove the first
transaction i.e PoA as a fraudulent and forged
transaction. The standard of proof in a criminal trial is
proof beyond reasonable doubt because the right to
personal liberty of a citizen can never be taken away by
the standard of preponderance of probability. This case
on hand is a classic example of poor prosecution and
shabby investigation which resulted in the acquittal of the
accused. The Investigating Officer is expected to be
diligent while discharging his duties. He has to be fair,
transparent and his only endeavour should be to find out
the truth.”
The concluding paragraph of the charge-sheet, not being substantiated by the
preceding paragraphs of the charge-sheet and the supporting documents, has
been demonstrated to be hyperbole. The only evidence marshalled by the
prosecution, apart from the said money received in the account of the
company in which the applicant is director and which is stated to be legitimate
money, is confession of co-accused person which is not substantive evidence
as held in the case of Haricharan Kurmi v State of Bihar (1964) 6 SCR 623 in
the following words:
“As we have already indicated, this question has been
considered on several occasions by judicial decisions and
it has been consistently held that a confession cannot be
treated as evidence which is substantive evidence against
a co-accused person.”
-- 14 of 17 --
The most startling of facts is that the investigating officer has not disclosed the
aspect of illegal gratification in the charge-sheet. It has not been asserted that
bribe was paid, nor has any detail been provided about the date and place of
demand of bribe, or of acceptance of bribe. Nor has any such sum been
recovered. Inspite of this, the prosecution is trying to portray that a case under
Prevention of Corruption Act is made out against the applicant and others. In
the case of Neeraj Dutta v State (2023) 4 SCC 731, the Hon’ble Supreme
Court has held that for making out a case under the Prevention of Corruption
Act, the prosecution must prove both demand and acceptance of illegal
gratification.
More than two months have passed after dismissal of the previous bail
application of the applicant. At that time, investigation was pending. The
charge-sheet has now been filed. In the case of Babu Singh & Ors. V State of
U. P. (19789) 1 SCC 579, Hon’ble Supreme Court has held that the dismissal
of previous application for bail does not preclude filing of second application
for bail on a later occasion “giving more materials, further developments and
different considerations ”.
The case is not making any headway. There are 191 witnesses in the list that
has been sent so far. The total number of pages among the charge-sheet and
relied upon documents over 14,000. Trial, whenever it commences (since
further investigation is going on), will take substantial period. In the case of
Manish Sisodia v Directorate of Enforcement SLP (Crl.) No.8772/2024 dated
09.08.2024, bail was granted because there was no likelihood of trial being
concluded in the near future, given the volume of documents.
The presence of accused at the trial can be secured by imposing conditions.
In my opinion, in light of the aforesaid circumstances, the application for bail
deserves to be allowed.”
11. Since the aforesaid grounds apply to the applicants, by applying the rule
of parity, the applicants too are entitled to be released on bail. In this behalf,
reference is made to the decision of Vishnu Ram Chandra Maheshwari v State
of M.P. (1999) 1 MPLJ 516 and Bajrang Gupta v CBI Bail Application
No.2497/2015. I also find that the decision of Kanchaman Yonjan v State
(2024) SCC OnLine Del 4734, in which it has been held that each day spent
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in custody provides a new cause of action to seek bail, supports the
maintainability of the present bail applications.
12. Although the stage to appreciate evidence has not been arrived, it
would be relevant to note that the investigating agency has been arbitrary in
the choice of who to indict as accused and who is to be arrayed as witness
regardless of the role surfaced by the evidence on record. This runs foul of the
decisions reported as Banu Singh v Emperor (1906) ILR 33 CAL 1353,
Laxmandas Chaganlal Bhatia & Ors. v State (1966) SCC OnLine BOM 17 and
Laxmipat Choraria & Ors. v State of Maharashtra AIR 1968 SC 938.
13. It is worthy to note that there is sufficient indication about involvement of
persons by name of Ravi Mehra, Tarun Verma, Ashwani Kumar Pandey,
Akhilesh Kumar Pandey, Vipin Kumar Singh, Rameshwar Kumar, Raj Kumar,
Sameer and several others (the identity of the forger of the document
mentioned in page 91 of the charge-sheet, those persons who gave incorrect
addresses in order to commit these offences, those who actually owned and
controlled the 96 firms which had already obtained GST refund and the
authorized signatory of the firms, those who had got sim cards issued which
were used in commission of the offences) and yet no action was taken against
them.
14. In light of the aforesaid circumstances, all four applications for bail are
allowed. Applicants Vishal Kumar, Surjeet Singh, Raj Singh and Narender
Kumar Saini are directed to be enlarged on bail, on each furnishing personal
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bond in the sum of Rs.25,000/- with one surety in the like sum and subject to
the following conditions:
a. The applicants shall not leave the country without prior permission of this
Court.
b. The applicants shall not misuse the benefit of bail by indulging in
commission of similar offences in future.
c. The applicants shall not contact any of the witnesses of the case or extend,
directly or indirectly, any inducement or threat to the witnesses.
d. The applicants shall appear before this Court on each and every date of
hearing.
e. The applicants shall intimate this Court in case of change of their address.
15. If the applicants are found to be violating any of the above conditions,
the State shall be at liberty to move an application for cancellation of bail.
16. It is made clear that the observations made in this order are only for the
purpose of deciding the applications for bail. The observations are prima facie
in nature and shall not be taken into account at the time of deciding on the
point of charge or at the stage of final disposal of the case on merits.
17. Copy of this order be given dasti to Ld. Counsel for applicants.
18. Put up on date fixed i.e. 30.01.2025.
(Ashish Aggarwal)
Special Judge (PC Act)(ACB)-02
Rouse Avenue District Courts, New Delhi
21.12.2024
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