In Support Of His Contention, The Learned Counsel For The Applicant Has Relied Upon A Decisions In Vishwakalyan Multistate Credit Coop. Society Ltd v. Oneup Entertainment (P) Ltd. , 2023 Scc Online Sc 1749, A Decision Rendered By A Coordinate Bench Of This Court In Azim Premji V. State Of U.p. , 2024 Scc Onlin

AFR Court No. - 11 Case :- APPLICATION U/S 482 No. - 5145 of 2024 Applicant :- Sandeep Miglani Opposite Party :- Union Of India Thru. Deputy Commissioner Of Income Tax Kanpur And Another Counsel for Applicant :- Rama Soni,Rohit Kumar Tripathi,Shubhanjali Shukla Counsel for Opposite Party :- Kushagra Dikshit Hon’ble Subhash Vidyarthi J. 1.Heard Sri Rohit Kumar Tripathi, the learned counsel for the petitioner,Sri Neerav Chitravanshi and Sri Kushagra Dixit, the learned counselfor the opposite parties. 2.By means of the instant application filed under Section 482 Cr.P.C.,the petitioner has challenged validity of an order dated 27.02.2024passed by the IX Additional Sessions Judge, Lucknow in ComplaintCase No. 277 of 2024 whereby the trial court has taken cognizance ofoffence under Section 53 read with Section 3 of the Prohibition ofBenami Property Transaction Act, 1988 (hereinafter referred to as‘Benami Act’) and he has been summoned to face trial. the petitioner has challenged validity of an order dated 27.02.2024passed by the IX Additional Sessions Judge, Lucknow in ComplaintCase No. 277 of 2024 whereby the trial court has taken cognizance ofoffence under Section 53 read with Section 3 of the Prohibition ofBenami 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 underSection 53 of Benami Act through a Deputy Commissioner of IncomeTax/Initiating Officer, Benami Prohibition, Benami Unit, Kanpur,after obtaining sanction for prosecution from the Principal Director ofIncome Tax (Investigation) Kanpur under Section 55 of the BenamiAct on 29.01.2024. Section 53 of Benami Act through a Deputy Commissioner of IncomeTax/Initiating Officer, Benami Prohibition, Benami Unit, Kanpur,after obtaining sanction for prosecution from the Principal Director ofIncome Tax (Investigation) Kanpur under Section 55 of the BenamiAct on 29.01.2024. 4.The complaint states that a search and seizure under Section 132 ofthe Income Tax Act, 1961 was conducted on 18.01.2017, whichrevealed that M/s Shyam Trading Company (a proprietorship concernof Ghanshyam Patel) had used its bank account maintained with J &the Income Tax Act, 1961 was conducted on 18.01.2017, whichrevealed that M/s Shyam Trading Company (a proprietorship concernof Ghanshyam Patel) had used its bank account maintained with J & K Bank, Ghaziabad to deposit a cash amount of Rs.30,00,000/- on12.11.2016. Out of the aforesaid amount, Rs.7,50,000/- weretransferred to the bank account of the applicant being maintained withAxis Bank, Delhi through NEFT on 12.11.2016. Ghanshyam Pateldenied ownership of the amount deposited in his bank account. Afterinquiry, the matter was transferred to the Banami Prohibition Unit,Kanpur for initiating proceedings under Benami Act. During furtherinquiry held by the Benami Prohibition Unit, Kanpur, the applicantadmitted on oath that the aforesaid sum of Rs. 7,50,000/- depositedinto the bank account of M/s Shyam Trading Company was theapplicant’s unaccounted cash, which was deposited duringdemonetization period and had been transferred to his bank account.Ghanshyam Patel, proprietor of M/s Ghanshyam Trading Company,also admitted in his statement that the amount of Rs. 7,50,000/-deposited in his bank account in cash was a benami transaction. 5.The Deputy Commissioner of Income Tax/ Initiating Officer, BenamiProhibition Benami Unit, Kanpur filed a complaint dated 25.02.2024on the basis of the aforesaid facts. The learned IX Additional SessionJudge, Lucknow took cognizance of the alleged offence on the samedate i.e. 27.02.2024 and summoned the applicant to face the trial. Prohibition Benami Unit, Kanpur filed a complaint dated 25.02.2024on the basis of the aforesaid facts. The learned IX Additional SessionJudge, Lucknow took cognizance of the alleged offence on the samedate i.e. 27.02.2024 and summoned the applicant to face the trial. 5.The Deputy Commissioner of Income Tax/ Initiating Officer, BenamiProhibition Benami Unit, Kanpur filed a complaint dated 25.02.2024on the basis of the aforesaid facts. The learned IX Additional SessionJudge, Lucknow took cognizance of the alleged offence on the samedate i.e. 27.02.2024 and summoned the applicant to face the trial. Prohibition Benami Unit, Kanpur filed a complaint dated 25.02.2024on the basis of the aforesaid facts. The learned IX Additional SessionJudge, Lucknow took cognizance of the alleged offence on the samedate i.e. 27.02.2024 and summoned the applicant to face the trial. 6.The learned counsel for the applicant has assailed the validity of thesummoning order dated 27.02.2024 on the sole ground that theapplicant resides at New Delhi, i.e. beyond the territorial jurisdictionof the Court which has passed the summoning order and, therefore, asper the statutory provision contained in Section 202 Cr.P.C., it wasmandatory for the Court to have conducted an inquiry before takingcognizance of the offence and summoning the applicant.summoning order dated 27.02.2024 on the sole ground that theapplicant resides at New Delhi, i.e. beyond the territorial jurisdictionof the Court which has passed the summoning order and, therefore, asper the statutory provision contained in Section 202 Cr.P.C., it wasmandatory for the Court to have conducted an inquiry before takingcognizance of the offence and summoning the applicant. 7.In support of his contention, the learned counsel for the applicant hasrelied upon a decisions in Vishwakalyan Multistate Credit Coop.Society Ltd. v. Oneup Entertainment (P) Ltd., 2023 SCC OnLineSC 1749, a decision rendered by a coordinate Bench of this Court inAzim Premji v. State of U.P., 2024 SCC OnLine All 1956 and adecision rendered by an Hon’ble Single Judge of Calcutta High Courtrelied upon a decisions in Vishwakalyan Multistate Credit Coop.Society Ltd. v. Oneup Entertainment (P) Ltd., 2023 SCC OnLineSC 1749, a decision rendered by a coordinate Bench of this Court inAzim Premji v. State of U.P., 2024 SCC OnLine All 1956 and adecision rendered by an Hon’ble Single Judge of Calcutta High Court in Divyajot Singh Jendu v. Manikaran Analytics Ltd.: 2022 SCCOnLine Cal 200. 8. Per contra, Sri Neerav Chitravanshi, the learned counsel for theopposite parties has submitted that the Proviso (a) appended toSection 200 Cr.P.C. provides that the Magistrate need not examine thecomplaint and the witnesses, if a complaint has been made by a publicservant. He has relied upon a decision of the Hon’ble Supreme Courtin the case of Cheminova India Limited v. State of Punjab: 2021SCC 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 Actreads as under:- 50. Special Courts.—(1) The Central Government, inconsultation with the Chief Justice of the High Court, shall, fortrial of an offence punishable under this Act, by notification,designate one or more Courts of Session as Special Court orSpecial Courts for such area or areas or for such case or classor group of cases as may be specified in the notification. (2) While trying an offence under this Act, a Special Court shallalso try an offence other than an offence referred to in sub-section (1), with which the accused may, under the Code ofCriminal Procedure, 1973 (2 of 1974), be charged at the sametrial. (3) The Special Court shall not take cognizance of any offencepunishable under this Act except upon a complaint in writingmade by— (i) the authority; or (ii) any officer of the Central Government or State Governmentauthorised in writing by that Government by a general or specialorder made in this behalf. (4) Every trial under this section shall be conducted asexpeditiously as possible and every endeavour shall be made bythe Special Court to conclude the trial within six months from thedate of filing of the complaint. (2) While trying an offence under this Act, a Special Court shallalso try an offence other than an offence referred to in sub-section (1), with which the accused may, under the Code ofCriminal Procedure, 1973 (2 of 1974), be charged at the sametrial. (3) The Special Court shall not take cognizance of any offencepunishable under this Act except upon a complaint in writingmade by— (i) the authority; or (ii) any officer of the Central Government or State Governmentauthorised in writing by that Government by a general or specialorder made in this behalf. (4) Every trial under this section shall be conducted asexpeditiously as possible and every endeavour shall be made bythe Special Court to conclude the trial within six months from thedate of filing of the complaint. 10.In exercise of powers conferred by Section 50 of the Benami Act, the Ministry of Finance, Government Of India has issued a Notificationdated 16.10.2018 whereby IX Additional District & Sessions Judge, Lucknow has been designated as the Special Court for the purpose oftrial of offences punishable under the Benami Act for certain Districts,including Ghaziabad District, where the cash amount ofRs.30,00,000/- was deposited in the Bank account of M/s ShyamTrading Company and from where an amount of Rs.7,50,000/- wastransferred to the Bank account of the applicant. Therefore, theComplaint has rightly been filed before the Special Court constitutedunder Section 50 of the Benami Act. 11.Sections 200 & 202 of Criminal Procedure Code, 1973 read as under:- “200. Examination of complainant.—A Magistrate takingcognizance of an offence on complaint shall examine upon oaththe complainant and the witnesses present, if any, and thesubstance of such examination shall be reduced to writing andshall be signed by the complainant and the witnesses, and alsoby the Magistrate: Provided that, when the complaint is made in writing, theMagistrate need not examine the complainant and the—witnesses (a) if a public servant acting or purporting to act in thedischarge of his official duties or a court has made thecomplaint; or (b) if the Magistrate makes over the case for inquiry or trial toanother Magistrate under Section 192: Provided further that if the Magistrate makes over the case toanother Magistrate under Section 192 after examining thecomplainant and the witnesses, the latter Magistrate need not re-examine them. * * * 202. Postponement of issue of process.—(1) Any Magistrate, onreceipt of a complaint of an offence of which he is authorised totake cognizance or which has been made over to him underSection 192, may, if he thinks fit, and shall, in a case where theaccused is residing at a place beyond the area in which heexercises his jurisdication, postpone the issue of process againstthe accused, and either inquire into the case himself or direct aninvestigation to be made by a police officer or by such otherperson as he thinks fit, for the purpose of deciding whether ornot 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 offencecomplained of is triable exclusively by the Court of Session;orcomplained of is triable exclusively by the Court of Session;or (b) where the complaint has not been made by a Court, unlessthe complainant and the witnesses present (if any) have beenexamined on oath under Section 200.the complainant and the witnesses present (if any) have beenexamined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if hethinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session, heshall call upon the complainant to produce all his witnesses andexamine them on oath. (a) where it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session;orcomplained of is triable exclusively by the Court of Session;or (b) where the complaint has not been made by a Court, unlessthe complainant and the witnesses present (if any) have beenexamined on oath under Section 200.the complainant and the witnesses present (if any) have beenexamined on oath under Section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if hethinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offencecomplained of is triable exclusively by the Court of Session, heshall call upon the complainant to produce all his witnesses andexamine them on oath. (3) If an investigation under sub-section (1) is made by a personnot being a police officer, he shall have for that investigation allthe powers conferred by this Code on an officer in charge of apolice station except the power to arrest without warrant.” 12.In Cheminova India Limited v. State of Punjab: 2021 SCC OnLineSC 573, the Hon’ble Supreme Court held that: - “18.The legislature in its wisdom has itself placed the publicservant on a different pedestal, as would be evident from aperusal of proviso to Section 200 of the Code of CriminalProcedure. Object of holding an inquiry/investigation beforetaking cognizance, in cases where the accused resides outsidethe territorial jurisdiction of such Magistrate, is to ensure thatinnocents are not harassed unnecessarily. By virtue of proviso toSection 200 of the Code of Criminal Procedure, the Magistrate,while taking cognizance, need not record statement of suchpublic servant, who has filed the complaint in discharge of hisofficial duty. Further, by virtue of Section 293 of Code ofCriminal Procedure, report of the Government Scientific Expertis,per se, admissible in evidence. The Code of CriminalProcedure itself provides for exemption from examination ofsuch witnesses, when the complaint is filed by a public servant.” 13.In Vishwakalyan Multistate Credit Coop. Society Ltd. v. OneupEntertainment (P) Ltd., 2023 SCC OnLine SC 1749, the appellanthad filed a complaint under Section 138 of the Negotiable InstrumentsAct, 1881 . On 26.06.2021, the Judicial Magistrate issued process onthe complaint. The High Court held that as the respondent was havingits office outside the jurisdiction of the Magistrate, it was necessaryfor the Magistrate to hold an inquiry under Section 202 Cr.P.C. andnon-compliance with the mandate of Section 202 Cr.P.C. vitiates theEntertainment (P) Ltd., 2023 SCC OnLine SC 1749, the appellanthad filed a complaint under Section 138 of the Negotiable InstrumentsAct, 1881 . On 26.06.2021, the Judicial Magistrate issued process onthe complaint. The High Court held that as the respondent was havingits office outside the jurisdiction of the Magistrate, it was necessaryfor the Magistrate to hold an inquiry under Section 202 Cr.P.C. andnon-compliance with the mandate of Section 202 Cr.P.C. vitiates the order issuing process. Therefore, the High Court set aside the orderissuing process, without issuing any further direction to the Magistrateto hold an inquiry under Section 202 Cr.P.C. The Hon’ble SupremeCourt referred to its Constitution Bench decision in the case of “In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act, 1881”:2021 SCC OnLine SC 325, in which the Constitution Bench hasdirected as under: - “3) For the conduct of inquiry under Section 202 of the Code, evidenceof witnesses on behalf of the complainant shall be permitted to be takenon affidavit. In suitable cases, the Magistrate can restrict the inquiry toexamination of documents without insisting for examination ofwitnesses.” The aforesaid decision given in the background of a private complaintfiled under Section 138 of the Negotiable Instruments Act cannotapply to the facts of the present case, where the complaint has beenfiled by a public servant under the Benami Act. “3) For the conduct of inquiry under Section 202 of the Code, evidenceof witnesses on behalf of the complainant shall be permitted to be takenon affidavit. In suitable cases, the Magistrate can restrict the inquiry toexamination of documents without insisting for examination ofwitnesses.” The aforesaid decision given in the background of a private complaintfiled under Section 138 of the Negotiable Instruments Act cannotapply to the facts of the present case, where the complaint has beenfiled by a public servant under the Benami Act. 14.In Azim Premji v. State of U.P., 2024 SCC OnLine All 1956, acoordinate Bench of this Court held that where the Magistrate, failedto ensure the compliance of Section 202 Cr.P.C., although the accusedresides outside the jurisdiction of the court concerned, an enquiry onfact is mandatory before issuing a summoning order. However, thisjudgment does not take into consideration the provision contained inSection 200 Cr.P.C. granting exemption to public servants or thejudgment of the Hon’ble Supreme Court in the case of CheminovaIndia Limited (Supra). coordinate Bench of this Court held that where the Magistrate, failedto ensure the compliance of Section 202 Cr.P.C., although the accusedresides outside the jurisdiction of the court concerned, an enquiry onfact is mandatory before issuing a summoning order. However, thisjudgment does not take into consideration the provision contained inSection 200 Cr.P.C. granting exemption to public servants or thejudgment of the Hon’ble Supreme Court in the case of CheminovaIndia Limited (Supra). 15.In Divyajot Singh Jendu v. Manikaran Analytics Ltd., 2022 SCCOnLine Cal 200, while dealing with a complaint filed by a personother than a public servant, the Calcutta High Court held that as thelearned Magistrate did not hold any inquiry under Section 202 ofCr.P.C though the accused resided outside the jurisdiction of the courtwhere the complaint has been lodged and the Magistrate merely heldan inquiry under section 200 of Cr. P.C simpliciter and only examinedthe complainant and no other witness or document, the summoningorder was vitiated. This judgment also does not take intoconsideration the provision contained in Section 200 Cr.P.C. grantingOnLine Cal 200, while dealing with a complaint filed by a personother than a public servant, the Calcutta High Court held that as thelearned Magistrate did not hold any inquiry under Section 202 ofCr.P.C though the accused resided outside the jurisdiction of the courtwhere the complaint has been lodged and the Magistrate merely heldan inquiry under section 200 of Cr. P.C simpliciter and only examinedthe complainant and no other witness or document, the summoningorder was vitiated. This judgment also does not take intoconsideration the provision contained in Section 200 Cr.P.C. granting exemption to public servants or the judgment of the Hon’ble SupremeCourt in the case of Cheminova India Limited (Supra). In Rosy v. State of Kerala: (2000) 2 SCC 230, the Hon’ble SupremeCourt explained the nature and purpose of the enquiry under Section 202 Cr.P.C. in the following words: - exemption to public servants or the judgment of the Hon’ble SupremeCourt in the case of Cheminova India Limited (Supra). In Rosy v. State of Kerala: (2000) 2 SCC 230, the Hon’ble SupremeCourt explained the nature and purpose of the enquiry under Section 202 Cr.P.C. in the following words: - “11…it is settled law that the inquiry under Section 202 is of alimited nature. Firstly, to find out whether there is a prima faciecase in issuing process against the person accused of the offencein the complaint and secondly, to prevent the issue of process inthe complaint which is either false or vexatious or intended onlyto harass such a person. At that stage, the evidence is not to bemeticulously appreciated, as the limited purpose being of findingout “whether or not there is sufficient ground for proceedingagainst the accused”. The standard to be adopted by theMagistrate in scrutinising the evidence is also not the same asthe one which is to be kept in view at the stage of framingcharges. At the stage of inquiry under Section 202 CrPC theaccused has no right to intervene and that it is the duty of theMagistrate while making an inquiry to elicit all facts not merelywith a view to protect the interests of an absent accused person,but also with a view to bring to book a person or persons againstwhom grave allegations are made.” 16.When we examine the impugned cognizance and summoning orderdated 27.02.2024 in light of the law laid down in the above referredcases, it appears that the complaint has been filed by the Union ofIndia through Deputy Commissioner of Income Tax / InitiatingOfficer, Benami Prohibition, Benami Prohibition Unit, Kanpur. TheSpecial Court has referred to the contents of the complaint that duringa search and seizure operation conducted under Section 132 of theIncome tax Act, 1961, it transpired that a cash amount ofRs.30,00,000/- had been deposited in the account of M/s ShyamTrading Company maintained with J & K Bank, Ghaziabad on12.11.2016 and on the same date, an amount of Rs.7,50,000/- wastransferred from that account through NEFT to the bank account ofthe applicant. Ghanshyam Patel, Proprietor of M/s Shyam TradingCompany, has denied ownership of the amount and he stated that hisaccount was misused by Rahul Chaudhary. The Initiating Officer,Benami Prohibition Unit conducted an enquiry, during which theapplicant admitted that the amount deposited in the bank account ofdated 27.02.2024 in light of the law laid down in the above referredcases, it appears that the complaint has been filed by the Union ofIndia through Deputy Commissioner of Income Tax / InitiatingOfficer, Benami Prohibition, Benami Prohibition Unit, Kanpur. TheSpecial Court has referred to the contents of the complaint that duringa search and seizure operation conducted under Section 132 of theIncome tax Act, 1961, it transpired that a cash amount ofRs.30,00,000/- had been deposited in the account of M/s ShyamTrading Company maintained with J & K Bank, Ghaziabad on12.11.2016 and on the same date, an amount of Rs.7,50,000/- wastransferred from that account through NEFT to the bank account ofthe applicant. Ghanshyam Patel, Proprietor of M/s Shyam TradingCompany, has denied ownership of the amount and he stated that hisaccount was misused by Rahul Chaudhary. The Initiating Officer,Benami Prohibition Unit conducted an enquiry, during which theapplicant admitted that the amount deposited in the bank account of M/s Shyam Trading Company was unaccounted cash, which wasdeposited during demonetization. After enquiry, the Initiating Officerfound that the aforesaid property was Benami property and he passedan attachment order under Section 24(4) of the Benami Act. Theadjudicating Authority gave an opportunity of hearing to theapplicant, during which the applicant admitted on oath that theaforesaid 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 beentransferred to his bank account. Thereafter the complaint was filedafter obtaining sanction from Principal Director, Income Tax(Investigation) before the Special Court having jurisdiction under theAct. 17.Section 202 Cr.P.C. merely directs that the Magistrate shall holdan enquiry inquire into the case himself or direct an investigationto be made by a police officer or by such other person as he thinksfit, for the purpose of deciding whether or not there is sufficientground for proceeding. Section 202 Cr.P.C. does not prescribe themanner of holding an enquiry under this provision. The SpecialCourt has passed the impugned order dated 27.02.2024 takingcognizance of the offence and summoning the applicant aftertaking into consideration the aforesaid facts and after recording asatisfaction that from the averments made in the complaint and thedocuments filed with the complaint, there is sufficient ground forproceeding against the applicant. an enquiry inquire into the case himself or direct an investigationto be made by a police officer or by such other person as he thinksfit, for the purpose of deciding whether or not there is sufficientground for proceeding. Section 202 Cr.P.C. does not prescribe themanner of holding an enquiry under this provision. The SpecialCourt has passed the impugned order dated 27.02.2024 takingcognizance of the offence and summoning the applicant aftertaking into consideration the aforesaid facts and after recording asatisfaction that from the averments made in the complaint and thedocuments filed with the complaint, there is sufficient ground forproceeding against the applicant. 18.The limited enquiry which the Magistrate can hold at this stage ismeant to ascertain whether any case for summoning the accusedperson is made out. The perusal of the averments made in thecomplaint made by the Union of India through a Public Servant andexamination of the documents accompanying the complaint wassufficient for holding an enquiry under Section 202 Cr.P.C. forrecording a satisfaction that there is sufficient ground for proceedingagainst the applicant. The summoning order passed after taking intoconsideration the averments made in a complainant filed by the Unionmeant to ascertain whether any case for summoning the accusedperson is made out. The perusal of the averments made in thecomplaint made by the Union of India through a Public Servant andexamination of the documents accompanying the complaint wassufficient for holding an enquiry under Section 202 Cr.P.C. forrecording a satisfaction that there is sufficient ground for proceedingagainst the applicant. The summoning order passed after taking intoconsideration the averments made in a complainant filed by the Union of India through a public servant, after perusing the documents filedwith the complaint and after recording a satisfaction that there issufficient ground for proceeding against the applicant, fulfills therequirement of holding an enquiry under Section 202 Cr.P.C. 19.In view of the aforesaid discussion, there appears to be no illegality inthe impugned order dated 27.02.2024 taking cognizance of theoffence and summoning the applicant to face the trial and in any case,it does not cause a failure of justice to the applicant. 20.The application under Section 482 Cr.P.C. filed by the applicant lacksmerit and the same is hereby dismissed. merit and the same is hereby dismissed. of India through a public servant, after perusing the documents filedwith the complaint and after recording a satisfaction that there issufficient ground for proceeding against the applicant, fulfills therequirement of holding an enquiry under Section 202 Cr.P.C. 19.In view of the aforesaid discussion, there appears to be no illegality inthe impugned order dated 27.02.2024 taking cognizance of theoffence and summoning the applicant to face the trial and in any case,it does not cause a failure of justice to the applicant. 20.The application under Section 482 Cr.P.C. filed by the applicant lacksmerit and the same is hereby dismissed. merit and the same is hereby dismissed. (Subhash Vidyarthi J) Order Date: 04.06.2024Pradeep/-