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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 ..... uashing of the Complaint dated 27.02.2024 and entire case proceedings in relation thereto filed before learned IXth Additional Sessions Judge, Lucknow in Criminal Complaint Case No.274 of 2024, Union of India vs. Smt. Indu Srivastava, under Section 53 and 3 of the Prohibition of Benami Property Transaction Act, 1988 as amended now and known as The Benami Transaction (Prohibition) Amendment Act, 2016. 3. Learned Counsel for the applicant submit that the applicant is an innocent person and has been falsely implicated in the present case due to enmity. They further submit that the brief facts of the case are that a search and seizure was conducted under Section 132 of the Income 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mi Property and (iii) Orders of the Initiating Officer & Adjudicatory Authority under Section 24 suffered from non-application of mind and were passed in a mechanical manner. 6. Learned Counsel for the applicant further submit that despite the suitable reply and the fact that the order dated 15.12.2023 had already been passed by the Interim Board for Settlement VII, Chennai in favor of the applicant treating the seized subject cash as income of the applicant and assessed as such, the Principal Director of Income Tax (Investigation) U.P. (West) & Uttarakhand blatantly violating all canons of ethics, propriety and rule of law issued sanction order dated 30.01.2024 in the most mechanical 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 initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. 11. Learned Counsel for the applicant further submit that subject cash to the tune of Rs. 10,74,91,000/- (Rupees Ten Crores Seventy Four Lakhs and Ninety One Thousand Only) is not a Benami property which could activate the provisions of PBPT Act and moreover the pre-requisite of Section 53 of PBPT Act have neither been pleaded nor satisfied by the opposite parties before learned trial court. They further submit 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 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 clar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused. 52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction. 53. However, the words "sufficient 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motion the process of criminal law against a person is a serious matter." 17. Learned Counsel for the applicant further submit that the impugned summoning order dated 27.02.2024 which is a non-speaking and a perverse order is liable to be set aside and they pray for some interim relief. 18. Per contra, learned Counsel for the opposite party Nos.1 and 2 have vehemently opposed the contentions made by learned Counsel for the applicant and submit that the impugned summoning order was passed in a correct perspective after considering the entire material placed before the learned trial court and also considering the ground taken in the complaint dated 27.02.2024. They further submit that the said amount is a Benami property, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat learned trial court has not applied its judicial mind while summoning the applicant and has completely relied on the averments made in the complaint dated 27.02.2024 and also the order of summoning is a non-speaking order, therefore, in the opinion of this Court, the applicant has made out a case for interim relief.
21. In view of the above, the matter requires consideration on fact and law both.
22. Learned Counsel for the opposite party Nos.1 and 2 prays for and is granted four weeks' time to file the counter affidavit. Two weeks' time thereafter shall be available to learned Counsel for the applicant for filing rejoinder affidavit.
23. Accordingly, list/put up this case on 30.08.2024.
24. Till the next date of listing, further proceedings of the case filed before learned IXth Additional Sessions Judge, Lucknow in Criminal Complaint Case No.274 of 2024, Union of India vs. Smt. Indu Srivastava, under Section 53 and 3 of the Prohibition of Benami Property Transaction Act, 1988 as amended now and known as The Benami Transaction (Prohibition) Amendment Act, 2016 shall remain stayed so far it relates to the present applicant. X X X X Extracts X X X X X X X X Extracts X X X X
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