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TMI Blog2024 (5) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... ction was entered by the applicant in order to defeat the provisions of any law or avoid payment of statutory dues or avoid payment to creditor, prosecution under Section 53 of PBPT Act could not have been initiated against the applicant, thus, the impugned summoning order dated 27.02.2024 fails on this count also. It is also observed here that from the perusal of impugned summoning order dated 27.02.2024 it is evident that the learned trial court has not even applied its mind to the fact that whether the bare ingredients of the offence under Section 53 read with Section 3 of PBPT Act were satisfied in the present case or not. Further, this Court is of the view that summoning an accused is a very serious matter and the summoning order has to be passed after considering the legal aspects and material available on record in this regard Hon'ble Supreme Court of India has held that the order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not in the cases of Lalankumar Singh [ 2022 (10) TMI 1135 - SUPREME COURT] , Pepsi Foods Ltd. [ 1997 (11) TMI 518 - SUPREME COURT] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 1861 in the case of the applicant and her husband, namely-Keshav Lal on 19.04.2017. They further submit that in the aforementioned search the applicant was found in the possession of cash amounting to Rs. 10,74,91,000/- (Rupees Ten Crores Seventy Four Lakhs and Ninety One Thousand Only) and after making the necessary enquiries the matter was referred to the Assessing Officer and the Benami Prohibition Unit, Kanpur under the Income Tax Act, 1961 (hereinafter referred to as Act, 1961 ) and Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as PBPT Act ) for initiation of proceedings against the applicant under the aforesaid acts. 4. Learned Counsel for the applicant further submit that acting upon the assumption that the cash amounting to Rs. 10,74,91,000/- (Rupees Ten Crores Seventy Four Lakhs and Ninety One Thousand Only) was the beneficial property of the applicant's husband, the same was provisionally attached under Section 24(4) of the PBPT Act on 25.07.2018 by the Initiating Officer and the said amount was treated to be the Benami property. 5. Learned Counsel for the applicant further submit that upon a reference being filed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and perverse manner after they failed in the settlement proceedings where they have contested the case throughout, thus, they submit that the sanction order dated 30.01.2024 has been passed only with the intention to create pressure and to anyhow implicate the present applicant under the provisions of PBPT Act. 7. Learned Counsel for the applicant further submit that after getting a sanction order dated 30.01.2024 issued by the sanctioning order, the opposite parties in a very arbitrary manner initiated another proceeding by filing a complaint under Section 53 read with Section 3 of the PBPT Act. The copy of the complaint is annexed as Annexure No.2 to this application. 8. Learned Counsel for the applicant further submit that learned trial court without considering the material placed on record and without appreciating this fact that the Interim Board for Settlement VII, Chennai has already passed the order dated 15.12.2023 in favor of the applicant and the cash amount referred above was declared to be the cash of the applicant and without going through the averments made in the complaint has passed the impugned summoning order in a cursory manner and recording therein that whateve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024 it is evident that the learned trial court has not even applied its mind to the fact that whether the bare ingredients of the offence under Section 53 read with Section 3 of PBPT Act were satisfied in the present case and as such the said order is perverse and is liable to be set aside. 12. Learned Counsel for the applicant further submit that learned trial court has erred gravely in law in not appreciating that in the entire compliant dated 27.02.2024 nowhere has it been pleaded with clarity by the opposite parties as to what the alleged Benami transaction was, therefore, putting a cloud of doubt on what exactly the alleged Benami property was. The entire complaint dated 27.02.2024 and the summoning order dated 27.02.2024 are silent in this regard. They further submit that the impugned summoning order dated 27.02.2024 is bad in the eyes of law as it has been passed in a cursory manner without considering the legal aspects of the case and without perusing the provisions of PBPT Act, thus, the same is liable to set aside. 13. Learned Counsel for the applicant further submit that summoning an accused to face is a very serious matter and the trial court cannot pass an order of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground for proceeding appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect. 15. Further, the Hon'ble Supreme Court of India in the case of Pepsi Foods Ltd. v. Judicial Magistrate reported in (1998) 5 SCC 749 has been pleased to observe paragraph No.28, which is reproduced hereinunder:- 28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty, thus, no interference is required in the impugned summoning order and the applicant is not entitled to get any relief from this Court and the present application being devoid of merit and substance is liable to be rejected. 19. After considering the submissions advanced by learned Counsel for the parties and after perusal of material placed on record, this Court finds that the applicant challenged the order dated 28.08.2019 passed by the Adjudicatory Authority attaching and treating the amount of Rs. 10,74,91,000/- (Rupees Ten Crores Seventy Four Lakhs and Ninety One Thousand Only) as Benami Property by filling an Appeal No.PBPT/991/2019, Indu Srivastava Keshav Lal vs. Shri Aravind Trivedi, Initiating Officer before learned Appellate Tribunal under PBPT Act, New Delhi. The aforesaid appeal is still pending for final disposal and the opportunity of the respondents therein to file objection has been closed due to them having adopted dilatory tacitcs but the opposite parties have ignored this fact and proceeded to lodged a complaint against the applicant, which is nothing but an abuse of process of law. It is further observed here that the prosecution under Section 53 of PBPT Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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