Jatindrakumar S/O Narendrakumar vs State Of Gujarat on 2 February, 2022
Gujarat High Court
Jatindrakumar S/O Narendrakumar vs State Of Gujarat on 2 February, 2022
Bench: Nirzar S. Desai
R/CR.MA/21351/2021 ORDER DATED: 02/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21351 of 2021
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JATINDRAKUMAR S/O NARENDRAKUMAR
Versus
STATE OF GUJARAT
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Appearance:
MR AV NAIR(5602) for the Applicant(s) No. 1
MR N F GOMES(11369) for the Applicant(s) No. 1
MR HIMANSHU PATEL, PUBLIC PROSECUTOR for the Respondent(s) No.
1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 02/02/2022
ORAL ORDER
- By way of this application under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on regular bail in connection with the FIR bearing No. 11184002210237, registered on 31.03.2021 with Chhotaudepur Police Station under Sections 406 and 420 of the Indian Penal Code and Sections 66(c) and 66(d) of the Information Technology Act, 2008.
- Heard, learned Advocate, Mr. A.V. Nair, for the applicant and learned APP, Mr. Himanshu Patel, for the Respondent-State.
- One Mr. Mahhmad Tarikh Sabbirbhai Khatri-the complainant, who is a resident of Chhotaudepur, lodged the aforesaid FIR before Chhotaudepur Police Station on 31.03.2021.
R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 3.1 According to the FIR, Mr. Khatri, who runs a grocery shop in name of Musa Enterprise, for the purpose of registration of GST number online, searched for websites and through one website, i.e. www.ezzus.com, he came into contact with one Vikram Sharan and got GST number registered in the name of his mother. On successful completion of the registration of GST username and password, GST registration number was provided to him, i.e. 24MYAPS7476Q1Z7.
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Jatindrakumar S/O Narendrakumar vs State Of Gujarat on 2 February, 2022
3.2 Thereafter, the complainant received a message on 12.03.2021 on his mobile phone from Income Tax Department that the transactions in respect of Pan Card linked with GST Account No. 24MYAPS7476Q1Z7 are more than the prescribed limit and therefore, the complainant checked-up the official website of the Income Tax Department, whereupon, he came to know that there was a turn-over of Rs.2,43,71,738/- in GST Account No. 24MYAPS7476Q1Z7.
3.3 On coming to know about the same, when the complainant tried to log-in his GST account through the username and the password, which were given to him, he failed to log-in. Therefore, he went to the GST Office of the State and made an application for change of mobile number, email address and password. At that point of time, he came to know that the mobile number linked with h i s G S T A c c o u n t N o . 2 4 M Y A P S 7 4 7 6 Q 1 Z 7 w a s 9 6 7 0 8 2 6 7 2 1 a n d t h e e m a i l a d d r e s s R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 was steely878@gmail.com. Thus, the complainant came to know that, though, GST Account No. 24MYAPS7476Q1Z7 was his, the mobile number and the email address linked with the said account were not of his.
3.4 Therefore, the complainant lodged the aforesaid FIR with Chhotaudepur Police Station on 31.03.2021.
- 5 On filing of the aforesaid FIR, the present applicant came to be arrested on 02.09.2021 and at present he is lodged in Sub-Jail Chhotaudepur. Hence, the present application.
- Learned Advocate Mr. Nair appearing for the applicant submitted that the applicant is not connected with the offence in question. He drew the attention of this Court to the Remand Report and stated that, though, the email address steely878@gmail.com and mobile phone No. 9670826721, which was traced with the help of IP No. 7009601558, are that of the present applicant, mobile number 9670826721 was asked to be saved by him by one Ahmedali Sunni for getting OTP numbers and therefore he had saved the aforesaid mobile number in his mobile number.
4.1 In the Remand Report, by quoting the present applicant it is stated that the aforesaid mobile phone was kept by Ahmedali and whenever the applicant needed OTP, the applicant used to get the same from the mobile phone No. 9670826721.
R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 4.2 Further, the GST Account No. 24MYAPS7476Q1Z7 as well as the mobile phone 9670826721 were managed by said Ahmedali through laptop and upon the instructions from Ahmedali, the present applicant used to do the financial transactions.
4.3 By drawing the attention to the aforesaid Remand Report and the contents thereof, learned Advocate Mr. Nair submitted that the applicant is an innocent person and actually, he has been made a scape-goat and that no mens rea is established on the part of the present applicant, as the actual beneficiary of the entire fraud is said Ahmedali and not the present applicant and hence, the present applicant requires to be granted bail.
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Jatindrakumar S/O Narendrakumar vs State Of Gujarat on 2 February, 2022
4.4 Learned Advocate Mr. Nair further submitted that the offences alleged against the present applicant are triable by a Court of Magistrate and the maximum punishment, even if the present applicant is found to be guilty of the offences charged against him, is of seven years and therefore also, the applicant is required to be granted bail.
4.5 It was further submitted that the charge-sheet does not contain any details about the alleged transactions or the so called loss to the public exchequer and hence, the applicant is entitled to be released on bail.
R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 4.6 Learned Advocate Mr. Nair submitted that the complaint is not filed by the GST department and thus, the ingredients of Sections 420 and 406 of the IPC are missing and therefore the applicant requires to be enlarged on bail.
5. On the other hand, learned APP Mr. Patel vehemently opposed this application for regular bail and submitted that, though, the punishment prescribed for the offences charged against the present applicant may be for maximum seven years, but, what is required to be seen by this Court is the magnitude of the offence and the involvement of the applicant, therein.
5.1 It was submitted that this a case of economic offence, which would directly affect the economy of the country and if, in case of such an offence leniency is shown by this Court, then, the same would send a wrong signal to the society.
5.2 Learned APP Mr. Patel also drew the attention
of this Court that when email addres
steely878@gmail.com was created by the presen
applicant, though, his name is Jatinder Kumar, he created the said email address by posing himself as Amarjeetsingh and that itself shows that there was criminal intention on the part of the present applicant right from the inception.
5.3 Learned APP Mr. Patel submitted that after R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 creating the aforesaid email address, which was linked with GST Account No. 24MYAPS7476Q1Z7 of the complainant, by hacking the mobile phone of the complainant, the present applicant changed / reset the username as well as password for operating the same. Further, the account recovery number also was kept being mobile number 9670826721, which never belonged to the complainant.
5.4 Learned APP Mr. Patel further submitted that whether, there is mens rea or not is an issue, which can be decided at the time of trial. In the same way, whether, the present applicant was the beneficiary of the entire scam or not and whether, he has committed the crime in question upon the instructions from Ahmedali or not and whether he has been made a scapegoat are the aspects, which would require fullfledge trial and by leading the evidence only, such facts can be established.
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Jatindrakumar S/O Narendrakumar vs State Of Gujarat on 2 February, 2022
5.5 It was further submitted that what is to be seen at this stage by this Court is the prima facie involvement of the applicant in the offences charged against him.
5.6 Learned APP Mr Patel further submitted that since the email address linked with the GST Account No. 24MYAPS7476Q1Z7 of the complainant was that of the present applicant and the aforesaid GST account was also being operated through the mobile phone number of the present applicant, as can be seen from R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 the charge-sheet papers that email address steely878@gmail.com was logged-in from mobile phone No. 9670826721, having IP No. 7009601558, which belongs to the present applicant, shows the active involvement of the present applicant in the offence in question.
5.7 Learned APP Mr. Patel submitted that the other two accused persons involved in the crime in question are yet to be arrested.
5.7.1 At this juncture, learned Advocate Mr. Nair submitted that both the remaining accused have already been arrested on 22.12.2021.
5.7.2 Learned APP Mr. Patel therefore submitted that as the investigation in respect of the said two accused persons is going on, at this juncture, if, the present applicant is released on bail in that case there are chances that he will try to influence the investigation and therefore also, he urged this Court not to exercise discretion in favour of the present applicant.
- 8 Learned APP Mr. Patel also opposed this bail application on the ground that the applicant belongs to the State of Punjab and therefore, if, he is released, then it will become difficult to secure his presence at the time of trial.
- Except the above, neither any other submission R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 was made nor any order / judgment was cited by either side.
- Considering the submissions made by the learned Advocate for the applicant and learned APP for the Respondent-State, this Court is of the considered view that it is true that the maximum punishment, if the applicant is found guilty, may be of seven years. But, at the same time, what is also required to be considered by this Court at the time of granting bail is the scale, on which the entire scam has taken place as well as the amount involved therein. According to the FIR, the total amount involved in the case of the present complainant is Rs.2,43,71,738/-. It may be noted that the aforesaid amount has not been stated as per the say of the complainant, but, the said amount is mentioned as per the official website of the Income Tax Department.
7.1 Considering the fact that the complainant had a talk with one Vikram Sharan on 01.06.2020 for registration of GST account and thereafter, within the short period of nine months the transactions of Rs.2,43,71,738/- and other fictitious transactions of GST has taken place in the said account and that too, without the knowledge of the complainant, that fact, itself, shows that the offence is of a very serious nature and the same has affected the economy of the country adversely.
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Jatindrakumar S/O Narendrakumar vs State Of Gujarat on 2 February, 2022
7.2 As pointed out by the learned APP Mr. Patel that R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 the trial Court has observed that, Page-88, the present applicant has carried out the transactions, upon the instructions received from Ahmedali, without payment of GST in respect of some other firms also and thereby he has entered into false financial transactions and therefore, the total amount of fraud is much more than what is stated in the charge-sheet filed in the present FIR and for the said purpose the investigation of the remaining two accused is going on.
7.3 Considering the aforesaid aspects, though, the maximum punishment may be of seven years, the duration of punishment only cannot be taken into account for releasing an accused on bail and other relevant aspects, like magnitude of the entire scam, the role played by the present applicant and other circumstances are also required to be taken into consideration.
7.4 So far as the submissions made by learned Advocate Mr. Nair for the applicant in respect of mens rea of and the role played by the applicant is concerned, the same cannot be considered at this stage. Because, the same are the subject-matter of evidence, which can be considered at the time of trial.
7.5 The fact that the email address
steely8787@gmail.com, which was used for committing
the entire scam, was that of the present applicant, R/CR.MA/21351/2021 ORDER DATED: 02/02/2022 coupled with the fact that mobile phone No. 9670826721, having IP No. 7009601558, through which the fraud is committed and which belongs to the present applicant, would also go to show that the present applicant was actively involved in commission of the alleged crime, as there is voluminous evidence against the present applicant. It may be noted that the email address steely8787@gmail.com was created by the present applicant by posing himself as Amarjeetsingh, which is a fictitious name, whereas, the real name of the applicant is Jatinder Kumar, which would also go to show his active involvement in the crime. Moreover, in view of the fact that the investigation in respect of two other accused is going on, this Court does not find any reason to exercise the discretion in favour of the present applicant.
8. Resultantly, this application fails and is REJECTED. Rule is discharged. No order as to cots. (NIRZAR S. DESAI,J) UMESH/-
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