Page 46 - GSTL_30th April 2020_Vol 35_Part 5

532 GST LAW TIMES [ Vol. 35
10. In Vinod Raghuvanshi v. Ajay Arora and Ors. : (2013) 10 SCC 581 (para
30), the Apex Court had taken the view that an investigation should not be shut
out at the threshold if the allegations have some substance.
11. In the instant case, we find that the allegations are in respect of get-
ting bogus firms registered under the GST Code and of preparing bogus invoices
for the purpose of evading tax. The above allegations have been made on the ba-
sis of search and seizure operations and the enquiry that followed. As to how the
bogus tax invoices were used or were to be used would be determined on the
basis of material collected during the course of investigation.
12. The submission of the Learned Counsel for the petitioners that there
could be no registration of first information report without a specific order under
the GST Code in respect of evasion of tax is not acceptable for the simple reason
that the GST Code does not impliedly or explicitly repeals the provisions of Indi-
an Penal Code or the Code of Criminal Procedure and therefore an offence pun-
ishable under the Indian Penal Code can very well be reported and investigated
as per law. A Division Bench of this Court of which one of us (Manoj Misra, J.)
was a member in Criminal Misc. Writ Petition No. 7303 of 2019 : Govind Enter-
prises v. State of U.P and Others, decided on 30-5-2019 [2019 (27) G.S.T.L. 161
(All.)], after scanning through number of decisions of the Apex Court as well as
High Court including statutory provisions, held as follows :-
“Upon careful consideration of the rival submissions, the decisions
noticed above, the relevant provisions of the U.P. Act as also the Penal
Code and the Code, we find that Sections 69, 134, and 135 of the U.P. Act
are applicable in respect of offences punishable under the U.P. Act. They
have no application on offences punishable under the Penal Code. Further,
there is no provision in the U.P Act, at least shown to us, which may sug-
gest that the provisions of the U.P Act overrides or expressly or impliedly
repeals the provisions of the Penal Code. There is also no bar in the U.P. Act
on lodging an FIR under the Code for offences punishable under the Penal
Code even though, for the same act/ conduct, prosecution can be launched
under the U.P. Act. Rather, section 131 of the U.P. Act impliedly saves the
provisions of the Penal Code by providing that no confiscation made or
penalty imposed under the provisions of the Act or the rules made there-
under shall prevent the infliction of any other punishment to which the
person affected thereby is liable under the provisions of the U.P. Act or un-
der any other law for the time being in force.
The argument of the Learned Counsel for the petitioner that except for
offences specified in sub-section (5) of section 132, sub-section (4) of section
132 of the U.P. Act renders all offences under the U.P. Act non cognizable,
therefore no FIR can be lodged, is not acceptable, because sub-section (4)
speaks of offences under the U.P Act and not in respect of offences under
the Penal Code. It is noteworthy that section 135 of the U.P Act makes a
significant departure from general law by providing that in any prosecu-
tion for an offence under the U.P Act, which requires a culpable mental
state on the part of the accused, the court shall presume the existence of
such mental state. The same does not hold true for offences punishable un-
der the Penal Code. Hence, to prove mens rea, which is one of the necessary
ingredients of an offence punishable under the Penal Code, the standard of
proof would have to be higher to prove commission of an offence punisha-
ble under the Penal Code than what would be required to prove an offence
punishable under the U.P Act. As such, the offences punishable under the
Penal Code are qualitatively different from an offence punishable under the
U.P Act.
In view of the reasons recorded above, and by keeping in mind the
provisions of Section 26 of the General Clauses Act, 1897 as also the law
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