BADAL BHUPATRAI SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This application is filed under Sec. 438 of the Code of Criminal Procedure, 1973 praying for an order in the nature of anticipatory bail in connection with an offence registered as C.R.No.I- 11200011210293 of 2021 with Valsad Rural Police Station, Valsad, for the offence punishable under Ss. 406 and 420 of the Indian Penal Code as also under Ss. 85(1)(d), 85(1)(g), 86(1) and 86(2) of the Gujarat Value Added Tax Act, 2003 (hereinafter referred to as "the Act, 2003").

(2.) Heard Mr. Bharat Raichandani, learned advocate assisted by Mr. Love Sharma, learned advocate for the applicant. According to his submission, no offence either under "the Act, 2003" or under the provisions of Indian Penal Code can be said to have been committed by the applicant as Director of the Company. At the same time, he has submitted that for non-payment of tax, company may be liable but not its Directors unless specific provision is made under "the Act, 2003". He has further submitted that the company which defaulted according to the case of the prosecution for payment of tax, where the applicant is a Director came to be wound up under the provisions of the Companies Act, 1956 on 11/2/2021, whereas the present FIR has come to be filed on 5/2/2022 just prior to the order of winding up passed by the competent Court. He has further submitted while passing an interim order, this Court has examined in detail the provisions of "the Act, 2003" as also the authority of the officer concerned. He has further submitted that though while Sessions Court directed the applicant to remain present before the I.O. and granted protection from arrest, he reported to him. Not only that, pursuant to an order dtd. 17/2/2022, this Court directed the applicant to report to the I.O. again on 2/3/2023, which was also done by the applicant and on both the occasions, he was interrogated by the I.O. Therefore, he has submitted that since he is protected from 17/2/2022 and as no offence under the provisions of "the Act, 2003" can be said to have been committed by the Directors of the Company whose tax is due, according to the case of the prosecution, the applicant be enlarged on anticipatory bail, more particularly, when co-accused of the case i.e. another Director, maybe a lady accused and mother of the applicant, is already granted anticipatory bail, who is also similarly situated, the application may also be allowed.

(3.) As against that, Mr. K.M.Antani, learned Additional Public Prosecutor submitted that without entering into the validity of the prosecution for the offence under "the Act, 2003" as also IPC, once the company has evaded huge tax liability, the applicant being its Director may not be granted an order of anticipatory bail. He has further submitted that the order in the case of co-accused, being lady accused and as recorded in an order dtd. 6/10/2021, she had claimed that the present applicant is administering the affairs of the company and therefore, the said order cannot be pressed into service for claiming parity. Therefore, he has submitted that this application may be rejected.