TaxTMI 
TaxTMI 
2025 (12) TMI 1783
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....3.1. On 31.12.2020, FIR No. RCHG2020A0021 was registered by the Central Bureau of Investigation, ACB, Chandigarh against M/s Sunstar Overseas Limited ('accused company') and its then directors for the offences under Section 120B read with Sections 406/409/420 of the Indian Penal Code, 1860 ('IPC') and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 on the basis of a complaint filed by the then Chief Manager of Punjab National Bank, Sonepat, Haryana. It is alleged that the accused company and the accused persons availed various credit facilities from a Consortium of 9 lender banks, however, they allegedly siphoned off the said loan funds thereby failing to repay the said loan amount to the banks. It is further alleged that the accused company also violated the terms and conditions of the loan agreements in respect of the hypothecated goods inasmuch as the said goods were disposed of without depositing the sale proceeds in their cash credit accounts. It is alleged that by the said acts, the accused company acting through its directors/promoters/employees caused wrongful loss of Rs.951.88 crore to the consortium bank. It is alleged that the accused c....
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....unity to the petitioner of being heard on the point of cognizance. 5. The learned counsel for the petitioner submitted that as per the proviso of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('BNSS'), even the proposed accused has a right to be heard at the stage of cognizance in every case instituted upon a complaint. He submitted that prosecution complaint in the present case was filed after the BNSS, 2023 came into force. It was consequently argued that cognizance taken pursuant to the same ought to be governed by the provisions of BNSS and not the Code of Criminal Procedure, 1973. 6. It was further argued that the prosecution complaint in the present case was filed on 29.08.2024 and consequently the provisions of Sections 223-226 of the BNSS would govern the procedure of cognizance and dismissal of complaint. Reliance was placed on the judgment in Kushal Kumar Agarwal v. Directorate of Enforcement : 2025 INSC 760, to contest that in case of non-compliance with the proviso to the Sub-Section (1) of Section 223 of the BNSS, the cognizance order should be set aside. 7. On the other hand, the learned Special Counsel for the respondent department submitted th....
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....oner has challenged the impugned order only on a narrow ground that cognizance was taken by the learned Trial Court without affording him the benefit of a pre-cognizance hearing in terms of Section 223 of the BNSS. It has consequently been prayed that since the petitioner was deprived of his right to be heard, the impugned order be set aside. 12. Before this Court ventures into the exercise of dealing with the singular ground pressed by the petitioner to challenge the impugned order, at the outset, it is relevant to note that the present revision petition has been belatedly preferred by the petitioner. The petitioner along with the petition has also filed an application being, Crl.M.A.19850/2025, seeking condonation of delay of 198 days in filing the present petition on the ground as reproduced hereunder: "It is respectfully submitted that the delay in filing the present Revision Petition, after counting 90 days from the date of cognizance order is 198 days. However, it is submitted that the delay in filing the present Revision Petition was neither intentional nor deliberate, but was due to bonafide and unavoidable circumstances, as the Petitioner was in judicial custod....
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....e adopted by the Courts, when 'sufficient cause' had been shown by the applicant for not having filed the appeal within the period prescribed. However, in the present case, not only do the explanations rendered in the application not depict sufficient cause for condoning the delay but they also fail to inspire confidence and rather seem like an afterthought especially in the light of the fact that in the interregnum the petitioner was duly represented by a counsel before the learned Trial Court and the issue of not being afforded a pre-cognizance hearing was never agitated. In the opinion of this Court, subsequently receiving different legal advice cannot be a ground for condoning the delay. 16. Even otherwise, the impugned order is only one whereby the learned Trial Court took cognizance of the offence under Section 3 of the PMLA read with Section 70 of PMLA, as is punishable under Section 4 of PMLA and issued summons to the accused persons. 17. It is well settled that taking cognizance does not involve any formal action and the Magistrate is not even required to pass a speaking order at the stage of taking cognizance [Ref. U.P. Pollution Control Board v. Mohan Meakins Limit....
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....ot a Magistrate has taken cognizance of an offence depends on the facts and circumstances of each case and no rule of universal application and be laid down as to when a Magistrate can be said to have taken cognizance." (emphasis supplied) 19. Further in the case of Yogesh Mittal vs. Enforcement Directorate : 2018 SCC OnLine Del 6565, this Hon'ble Court was noted as under: "25. It is thus trite law that cognizance is taken of the offence and not the offender. It is also well settled that cognizance of an offence/offences once taken cannot be taken again for the second time. Since this Court has already taken a view that a supplementary complaint on additional evidence qua the same accused or additional accused who are part of same larger transactions/conspiracy is maintainable however, with the leave of the Court and cognizance is taken of the offence/offences, not the offender and in case no new offence is made out from the additional material collected during further investigation, supporting an earlier offence on which cognizance has already been taken or additional accused are arrayed no further cognizance is required to be taken." 20. As adumbrated abov....
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....mmit any offence while on bail. Pertinently, while dismissing the bail application, the learned Trial Court specifically noted that considering the nature and gravity of the offence, the petitioner's role and the prima facie incriminating evidence brought on record, the petitioner failed to satisfy the twin conditions under Section 45 of the PMLA. Admittedly, the petitioner on that occasion was heard significantly on merits. It is not the case of the petitioner that on such occasion the complaint as well as the other material on record was not taken into consideration while dismissing the bail application. 23. While the petitioner was subsequently enlarged on bail by this Court by order dated 07.05.2025, the bail was granted only considering the delay in trial and while noting that the continued incarceration of the petitioner with no possibility of the trial being completed in the near future was against Article 21 of the Constitution of India. Thus, in the opinion of this Court, since the petitioner has already been heard extensively on the point of prima facie satisfaction of guilt, agitating a pre-cognizance hearing at this juncture is of no avail. 24. Reliance has also b....
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....asachi Mukharji, J. (as he then was) also laid down the principle that not mere violation of natural justice but de facto prejudice (other than non-issue of notice) had to be proved. It was observed, quoting Wade's Administrative Law (5th Edn., pp. 472-75), as follows : (SCC p. 58, para 31) '31. ... [I]t is not possible to lay down rigid rules as to when the principles of natural justice are to apply, nor as to their scope and extent. ... There must also have been some real prejudice to the complainant; there is no such thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth.' Since then, this Court has consistently applied the principle of prejudice in several cases. The above ruling and various other rulings taking the same view have been exhaustively referred to in State Bank of Patiala v. S.K. Sharma [State Bank of Patiala v. S.K. Sharma, (1996) 3 SCC 364 : 1996 SCC (L&S) 717]. In that case, the principle of "prejudice" has been further elaborated. ....
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....ularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.' It is provided that a finding or sentence passed by a court of competent jurisdiction could not be set aside merely on the ground of irregularity if no prejudice is caused to the accused. It is not disputed that this question was neither raised by the accused at the trial nor any prejudice was pleaded either at the trial or at the appellate stage and therefore in the absence of any prejudice such a technical objection will not affect the order or sentence passed by the competent court. Apart from Section 465, Se....