TaxTMI 
TaxTMI 
2024 (6) TMI 338
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.... 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 the bank account of the applicant being maintained with Axis Bank, Delhi through NEFT on 12.11.2016. Ghanshyam Patel denied ownership of the amount deposited in his bank account. After inquiry, the matter was transferred to the Banami Prohibition Unit, Kanpur for initiating proceedings under Benami Act. During further inquiry held by the Benami Prohibition Unit, Kanpur, the applicant admitted on oath that the aforesaid sum of Rs. 7,50,000/- deposited into the bank account of M/s Shya....
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.... 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 special order made in this behalf. (4) Every trial under this section shall be conducted as expeditiously as possible and every endeavour shall be made by the Special Court to conclude the trial within six months from the date 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 Notification dated 16.10.2018 whereby IX Add....
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....ot 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 itself placed the public servant on a different pedestal, as would be evident from a perusal of proviso to Section 200 of the Code of Criminal Procedure. Object of holding an inquiry/investigation before taking cognizance, in cases where the accused resides outside the territorial jurisdict....
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.... 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 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). In Rosy v. State of Kerala: (2000) 2 SCC 230, the Hon'ble Supreme Court explained the nature and purpose of....
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....erty 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 prescribe the manner of holding an enquiry under this provision. The Special Court has passed the impugned order dated 27.02.2024 taking cognizance of the offence and summoning the applicant after taking into consideration the aforesaid facts an....