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TMI Blog2024 (6) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... fences punishable under the Benami Act for certain Districts, including Ghaziabad District, where the cash amount of Rs. 30,00,000/- was deposited in the Bank account of M/s Shyam Trading Company and from where an amount of Rs. 7,50,000/- was transferred to the Bank account of the applicant. Therefore, the Complaint has rightly been filed before the Special Court constituted under Section 50 of the Benami Act. Applicability of Section 202 Cr.P.C - The Initiating Officer, Benami Prohibition Unit conducted an enquiry, during which the applicant admitted that the amount deposited in the bank account of M/s Shyam Trading Company was unaccounted cash, which was deposited during demonetization. After enquiry, the Initiating Officer found that the aforesaid property was Benami property and he passed an attachment order under Section 24(4) of the Benami Act. The adjudicating Authority gave an opportunity of hearing to the applicant, during which the applicant admitted on oath that the aforesaid sum of Rs. 7,50,000/- deposited into the bank account of M/ s Shyam Trading Company was the applicant s unaccounted cash, which was deposited during demonetization period and had been transferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant application filed under Section 482 Cr.P.C., the petitioner has challenged validity of an order dated 27.02.2024 passed by the IX Additional Sessions Judge, Lucknow in Complaint Case No. 277 of 2024 whereby the trial court has taken cognizance of offence under Section 53 read with Section 3 of the Prohibition of Benami Property Transaction Act, 1988 (hereinafter referred to as Benami Act ) and he has been summoned to face trial. 3. The opposite party no. 1-Union of India has filed a complaint under Section 53 of Benami Act through a Deputy Commissioner of Income Tax/Initiating Officer, Benami Prohibition, Benami Unit, Kanpur, after obtaining sanction for prosecution from the Principal Director of Income Tax (Investigation) Kanpur under Section 55 of the Benami Act on 29.01.2024. 4. The complaint states that a search and seizure under Section 132 of the Income Tax Act, 1961 was conducted on 18.01.2017, which revealed that M/s Shyam Trading Company (a proprietorship concern of Ghanshyam Patel) had used its bank account maintained with J K Bank, Ghaziabad to deposit a cash amount of Rs. 30,00,000/- on 12.11.2016. Out of the aforesaid amount, Rs. 7,50,000/- were transferred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has relied upon a decision of the Hon ble Supreme Court in the case of Cheminova India Limited v. State of Punjab : 2021 SCC OnLine SC 573. 9. Before proceeding with the matter, it would be appropriate to have a look to the relevant statutory provisions. Section 50 of the Benami Act reads as under:- 50. Special Courts. (1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of an offence punishable under this Act, by notification, designate one or more Courts of Session as Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification. (2) While trying an offence under this Act, a Special Court shall also try an offence other than an offence referred to in subsection (1), with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial. (3) The Special Court shall not take cognizance of any offence punishable under this Act except upon a complaint in writing made by (i) the authority; or (ii) any officer of the Central Government or State Government authorised in writing by that Government by a general or specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 12. In Cheminova India Limited v. State of Punjab : 2021 SCC OnLine SC 573, the Hon ble Supreme Court held that: - 18. The legislature in its wisdom has itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. In Azim Premji v. State of U.P. , 2024 SCC OnLine All 1956, a coordinate Bench of this Court held that where the Magistrate, failed to ensure the compliance of Section 202 Cr.P.C., although the accused resides outside the jurisdiction of the court concerned, an enquiry on fact is mandatory before issuing a summoning order. However, this judgment does not take into consideration the provision contained in Section 200 Cr.P.C. granting exemption to public servants or the judgment of the Hon ble Supreme Court in the case of Cheminova India Limited (Supra). 15. In Divyajot Singh Jendu v. Manikaran Analytics Ltd. , 2022 SCC OnLine Cal 200, while dealing with a complaint filed by a person other than a public servant, the Calcutta High Court held that as the learned Magistrate did not hold any inquiry under Section 202 of Cr.P.C though the accused resided outside the jurisdiction of the court where the complaint has been lodged and the Magistrate merely held an inquiry under section 200 of Cr. P.C simpliciter and only examined the complainant and no other witness or document, the summoning order was vitiated. This judgment also does not take into consideration the provision contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during which the applicant admitted that the amount deposited in the bank account of M/s Shyam Trading Company was unaccounted cash, which was deposited during demonetization. After enquiry, the Initiating Officer found that the aforesaid property was Benami property and he passed an attachment order under Section 24(4) of the Benami Act. The adjudicating Authority gave an opportunity of hearing to the applicant, during which the applicant admitted on oath that the aforesaid sum of Rs. 7,50,000/- deposited into the bank account of M/ s Shyam Trading Company was the applicant s unaccounted cash, which was deposited during demonetization period and had been transferred to his bank account. Thereafter the complaint was filed after obtaining sanction from Principal Director, Income Tax (Investigation) before the Special Court having jurisdiction under the Act. 17. Section 202 Cr.P.C. merely directs that the Magistrate shall hold an enquiry inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Section 202 Cr.P.C. does not presc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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