# Shri Raghav Bahl v. Union of India & Anr

- **Citation:** (2019) 2 ILRA 913
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-22
- **Case number:** Criminal Misc. Writ Petition No. 15822 of 2019
- **Bench:** Ramesh Sinha, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shri-raghav-bahl-v-union-of-india-anr-44799
- **Pages:** 12

## Headnote

A. Black Money Act, 2015 - Sections 50, 51-
Undisclosed Foreign Income and Assetschallenge to-issuance of show cause notice,
sanction order and complaints without
giving opportunity of hearing to the
petitioner before granting sanction and
filing the impugned complaint- prima facie
case is made out against the petitioner or
that the petitioner deserves no relief
claimed by him-The criminal proceedings
can be quashed only in accordance with
parameters laid down by Hon'ble Apex
Court in catena of decisions-The present
petition does not fall in any of such
category, wherein, this Court can exercise
jurisdiction under Article 226 of the
Constitution
of
India
to
quash
the
impugned notice and complaints.

 B. As per prosecution manual it is not
incumbent upon the office of Principal
Director to grant opportunity hearing to
petitioner. Further, grant of sanction is
purely an administrative act and the
department is not under the obligation
to serve copy of the sanction on the
petitioner and thus, no principle of
judicial procedure has been violated. In
view of the material on record it cannot
be held that the impugned notice or
criminal
proceeding
are
manifestly
attended with mala fide and maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge. (Para 6 to 12)

Crl. Misc. Writ Petition dismissed (E-6)

Precedent followed: -

## Text

2 All. Shri Raghav Bahl Vs Union of India & Anr.
913

Compliance report be submitted by
the complaint magistrate in the Chambers
on 25.2.2020 at 4.00 PM.
----------

(2019)10ILR A 913

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.08.2019

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Misc. Writ Petition No. 15822 of 2019

Shri Raghav Bahl ...Petitioner
Versus
Union of India & Anr. ...Respondents

Counsel for the Petitioner:
Sri Rakesh Pandey, Sri Amit Kumar Singh,
Sri Prashant Kumar

Counsel for the Respondents:
C.S.C., Sri Ashish Agrawal

A. Black Money Act, 2015 - Sections 50, 51-
Undisclosed Foreign Income and Assetschallenge to-issuance of show cause notice,
sanction order and complaints without
giving opportunity of hearing to the
petitioner before granting sanction and
filing the impugned complaint- prima facie
case is made out against the petitioner or
that the petitioner deserves no relief
claimed by him-The criminal proceedings
can be quashed only in accordance with
parameters laid down by Hon'ble Apex
Court in catena of decisions-The present
petition does not fall in any of such
category, wherein, this Court can exercise
jurisdiction under Article 226 of the
Constitution
of
India
to
quash
the
impugned notice and complaints.

 B. As per prosecution manual it is not
incumbent upon the office of Principal
Director to grant opportunity hearing to
petitioner. Further, grant of sanction is
purely an administrative act and the
department is not under the obligation
to serve copy of the sanction on the
petitioner and thus, no principle of
judicial procedure has been violated. In
view of the material on record it cannot
be held that the impugned notice or
criminal
proceeding
are
manifestly
attended with mala fide and maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge. (Para 6 to 12)

Crl. Misc. Writ Petition dismissed (E-6)

Precedent followed: -

1. Srinidhi Karti Chidambaram Vs Principal Chief
Commissioner decided on 2 November, 2018

2. Medchl Chemicals & Pharma (P) Ltd. Vs
Biological E Ltd. & ors. 2000 SCC (Cri) 615

3. Union of India Vs W.N. Chadha AIR 1993 SC 1082

4. St. of HA. Vs Bhajan Lal & ors. (supra)

5. Rupan Deol Bajaj Vs K.P.S. Gill (1995) SCC (Cri) 1059

6. Rajesh Bajaj Vs St. of NCT of Delhi (1999) 3
SCC 259

7. St. of M.P. Vs Dr. Krishna Chandra Saksena
(1996) 11 SCC 439

8. Zenit Mataplast Prv. Ltd. Vs St. of Mah.
(2009) 10 SCC 388

9. S.P. (C.B.I.) Vs Deepak Chaudhary AIR
1996 SC 186

10. St. of Ori. Vs Saroj Kumar Sahoo (2005)
13 SCC 540

(Delivered by Hon'ble Ramesh Sinha, J.
&
914 INDIAN LAW REPORTS ALLAHABAD SERIES
Hon'ble Raj Beer Singh, J.)

1. Heard Sri Rakesh Pandey, learned
Senior Advocate, assisted by Sri Amit
Kumar Singh and Sri Prashant Kumar,
learned counsel for the petitioner and Sri
Ashish Agrawal, learned counsel for
respondents and perused record.

2. This petition under Article 226 of
Constitution of India has been preferred
seeking following relief:

(I) Issue an appropriate writ, order or
direction to call for records leading to the
issuance of Show cause notices dated
01.05.19 u/s 50 and 51 of the Black
Money Act 2015, the Assessment order
(if any exists on record), the Sanction
order (if any exists on record) and the
complaints u/s 50 and 51 of Black Money
Act 2015 and quash and set aside the
same as illegal, arbitrary aand violative of
fundamental rights of petitioner.

(ii) Issue a writ, order or direction in
the nature of certiorari quashing any
sanction orders passed by the respondents
whereby respondent's department filed the
compliants dated 03.05.2019 u/s 50 and
51 of the Black Money Act 2015 for
assessment year 2018-19 before the
Special
Judicial
Magistrate,
Meerut
against petitioner without affording an
opportunity of hearing to the petitioner
and alternatively, if no such sanction
orders are there quash the complaints
dated 03.05.19 u/s 50 and 51 of Black
Money Act 2015.

(iii) Issue a writ, order or direction in
the nature of certiorari quashing the
criminal complaints Nos. 2982/2019 and
2983/2019
dated
o3.05.19
filed
by
respondent's department u/s 50 and 51 of
the Black Money Act 2015 for assessment
year 2018-19 before the Special Judicial
Magistrate, Meerut against petitioner as
illegal and arbitrary and violative of
fundamental rights of the petitioner;

(iv) Issue a writ, order or direction in
the nature of Prohibition to prohibit the
respondent from unnecessary harassing
the petitioner by issuing Show-cause
notices without any substance or cause of
action on the basis of documents
recovered through search on 11.10.18 at
the home and office premises of the
petitioner;

(v) Issue a writ, order or direction in
the nature of mandamus commanding the
respondent to conduct hearing and inquiry
with regard to show cause notices dated
01.05.19 as per established procedure and
in conformity with the principles of
natural justice after quashing and setting
aside the same.

(vi) Issue a writ, order or direction to
quash and set aside any subsequent and
resultant proceedings, complaints dated
03.05.19 u/s 50 and 51 of the Black
Money Act 2015 or action based on the
show-cause notice dated 01.05.19 u/s 50
and 51 of Black Money Act 2015;

(vii) Any other writ, order or
directions which this Hon'ble court may
deem just, fit and proper in the light of
aforementioned facts and circumstances
of the case and may kindly be passed and;

(viii) Allow the writ petition with
costs.

3. It has been argued by the learned
counsel for the petitioner that the
petitioner, who is a journalist and editor,
has entered into Sale and Purchase
Agreement dated 30.11.2015 with ST
George Blackfriars Limited to purchase a
property in London (foreign asset) against
consideration of GBP 2,725,000/ and
details of said property were duly
disclosed in the Income Tax Return of
2 All. Shri Raghav Bahl Vs Union of India & Anr.
915
petitioner and that source of payments,
which were made to purchase the alleged
property,
were
also
disclosed.
The
petitioner has made first payment of GBP
10,000 & 262500 from his foreign
account and second payment of GBP
272,500 was made from foreign account
of his daughter Ms Tara Bahl and
thereafter through assignment deed dated
01.11.2017 petitioner has assigned his
interest in said property to RBRK
Investment Limited. It was submitted that
a search under Section 132(1) of Income
Tax Act was conducted by Income Tax
Authorities at the residence and office
premises of the petitioner and certain
documents were seized and thereafter
Income Tax Officer issued a show-cause
notice dated 02.11.2018 against Ms. Tara
Bahl, daughter of the petitioner, under
Section 276C of the Income Tax Act 1961
for Assessment Year 2017-18 and 201819 and under Section 50 and 51 of the
Black
Money
(Undisclosed
Foreign
Income and Asset) and Imposition of Tax
Act, 2015) and another notice dated
02.11.2018 was issued against petitioner
under Section 276C of the Income Tax
Act 1961 for Assessment Year 2018-19
and under Section 50 and 51 of the Black
Money Act, 2015, which were duly
replied by their authorized representative/
Chartered Accountant. Again show cause
notice dated 22.11.18 issued by the
Income Tax Officer, which was replied
vide
reply
letter
dated
28.11.2018.
Similarly, the show cause notice dated
07.12.18 under Section 50 of the Black
Money Act, 2015 issued to the petitioner
for the Assessment Year 2017-18 was
also replied by reply dated 12.12.2018.

It was stated that the Income Tax
Officer vide Emails dated 01.05.2019
issued
show-cause
notice
dated
01.05.2019 under Section 50 and 51 of
the Black Money Act, 2015 against the
petitioner for the Assessment year 201819, wherein it was alleged that the
petitioner
has
under-reported
total
investment in his foreign Assets by GBP
2.73 lakhs and thereby, has wilfully
attempted to evade tax and its reply was
sought by 02.05.2019. The authorised
representative/ CA of petitioner submitted
that the information provided in showcause notice dated 01.05.2019 is factually
incorrect and that payments made by
petitioner for London property have been
duly and properly mentioned in Income
Tax Return for Assessment Year 2018-19.
The
petitioner's
representative
has
requested Income Tax Authority to
adjourn the matter for a fortnight for
submitting detailed response but that
request was rejected by the Income Tax
officer vide Emails dated 02.05.2019 and
petitioner was directed to file factual
reply/ submission of show-cause notice
by 02.05.2019. Petitioner's authorized
representative again requested for the
grant of adjournment vide Email dated
11.05.2019 and thereafter authorized
representative/CA Firm, has filed reply
dated 13.05.2019 containing detailed
submissions
against
the
show-cause
notice
dated
01.05.2019
but
the
Respondent's
Department
has
filed
impugned
criminal
complaints
on
03.05.2019 under Section 50 and 51 of
Black Money Act, 2015 in the Court the
Special Chief Judicial Magistrate, Meerut,
against petitioner.

It was further submitted that no copy
of any sanction has been provided to the
petitioner and that respondents have
denied opportunity of hearing to the
petitioner before granting sanction and
filing the impugned complaint as much as
916 INDIAN LAW REPORTS ALLAHABAD SERIES
the third show-cause notice was issued on
01.05.2019 and complaint was filed on
03.05.2019 declining the request of
petitioner to grant reasonable time to
submit his submissions. If any Sanction
order has been granted, it was passed
without giving opportunity of personal
hearing to the petitioner, who has
specifically asked for it in its reply Emails
dated 02.05.2019. The respondents have
instituted
the
impugned
complaints
against the petitioner with intention to
tarnish and harm his integrity and
standing in public eyes and that the
impugned complaints and sanction order
do not fulfill the necessary ingredients of
the alleged offence ie undisclosed foreign
income and assets. It was stated that all
the payments made in foreign bank
account in connection with alleged
property (foreign asset) were transferred
from Indian legitimate bank accounts of
petitioner and money transferred in
foreign bank accounts was duly disclosed
and that the petitioner has legitimate
source of such income.

Learned counsel further argued that
the necessary ingredients of Section 50
and 51 of Black Money Act, 2015 are not
satisfied and that no prima facie case is
made out against the petitioner. It has
been submitted that all investment in
London property were duly disclosed in
Income Tax Return and there was no
undisclosed foreign income or assets of
the petitioner.

4. Sri Ashish Agrawal, learned
counsel for respondents argued that as per
the petitioner, he has made payment of
GBP 145047 and GBP 28998.6 for
London property on 11.06.2018 and
27.07.2018 and Ms. Ritu Kapur has made
payments of GBP 72523.4 and GBP
43514.1 for the London property on
07.08.2018 and 29.10.2018 while the
alleged
assignment
was
made
on
01.11.2017 and thus, payments for the
alleged property were made by petitioner
and Ms. Ritu Kapur after alleged
assignment, which is contradictory to his
later submissions and that petitioner has
shown the London property as directly
held asset in his ITR for Assessment Year
2018-19, that is after the purported
assignment of the property to M/s RBRK
Investments Ltd. It was pointed out that as
per AY 2017-18 and 2018-19, total share
holding of petitioner in M/s RBRK
Investment Ltd is merely of Rs 200/ while
of Ritu Kapur is Rs 2,51,16,284/. It was
submitted that no details of RB Trust and
Vidur Bahl having been allotted any
shares has been submitted. It was stated
that prosecution has been launched u/s 50
of Black Money Act for non disclosure of
foreign bank accounts in the name of his
minor son Vidur Bahl as there is no such
disclosure in the ITRs of petitioner that
any shares have been allotted to Vidur
Bahl and that Prima facie, petitioner is
owner of the said property and he has
under-reported
total
investment
till
31.03.2018 in London property.

So far as question of grant of
sanction is concerned, it was submitted
that Sanction order dated 02.05.19 has
been passed considering the response
submitted by the petitioner in response to
show-cause notice dated 01.05.19. There
is no obligation of serving the sanction
order to the petitioner and that sanction
orders were duly passed before instituting
the prosecution in the Court. It was
further submitted that the above stated
assignment deed dated 01.11.2017 is not a
registered document and thus, it has no
evidentiary value. Further it does not even
2 All. Shri Raghav Bahl Vs Union of India & Anr.
917
specify the consideration against which
the assignment has been made and that
the alleged assignment deed is an
afterthought arrangement. It was further
pointed out that the petitioner was not
allotted any shares even by the month of
January 2019 i.e. much after the search on
the petitioner, for assigning his interest in
the London property to M/s RBRK
Investments Ltd. The petitioner was given
sufficient
opportunity
to
make
his
submission/ representation. The showcause notice dated 01.05.2019 was issued
before granting sanction for launching
prosecution. However, as per prosecution
manual it is not incumbent upon the office
of Principal Director to grant opportunity
hearing to petitioner. Further, grant of
sanction is purely an administrative act
and the department is not under the
obligation to serve copy of the sanction
on the petitioner and thus, no principle of
judicial procedure has been violated.

5. Much thrust has been given to the
argument that petitioner was denied
opportunity of hearing before according
sanction for launching prosecution of
petitioner as much as the show-cause
notice was issued on 01.05.2019 and
complaint was filed on 03.05.2019 by
declining the request of petitioner to grant
reasonable time to submit his submissions
and that the sanction order was also
passed without giving opportunity of
personal hearing to the petitioner, who
has specifically asked for it in the reply Emails dated 02.05.2019. In this regard it
would be pertinent to mention that
petitioner could not show any such legal
or mandatory requirement that before
according sanction or instituting such
prosecution, an opportunity of hearing has
to be given to the accused. Further, show
cause notices dated 02.11.2018, 27.11.18
and 07.12.18 were issued to the petitioner
to put his submissions.

In the case of Superintendent of Police
(C.B.I.) Vs. Deepak Chaudhary, AIR 1996
SC 186, referred by the learned counsel for
the respondents, accused respondent filed
writ petition in the High Court seeking
quashing of the order of sanction. One of
the ground for challenge was that he not
given an opportunity of hearing before
granting sanction. The High Court accepted
the contention and quashed the sanction
order. Before the Hon'ble Apex Court, it
was contended on behalf of the appellant
that question of giving an opportunity to the
charged officer before granting sanction
does not arise since it is not a quasi judicial
function but purely an administrative
function. This argument was accepted by
the Hon'ble Apex Court and it was held as
under :

"We find force in the contention. The
grant of sanction is only an administrative
function, though it is true that the accused
may be saddled with the liability to be
prosecuted in a Court of law. What is
material at that time is that the necessary
facts
collected
during
investigation
constituting the offence have to be placed
before the sanctioning authority and it
has to consider the material. Prima-facie,
the authority is enquired to reach the
satisfaction that the relevant facts would
constitute the offence and then either
grant or refuse to grant sanction. The
grant
of
sanction,
therefore,
being
administrative act the need to provide an
opportunity of hearing the accused before
according sanction does not arise. The
High Court, therefore, was clearly in
error in holding that the order of sanction
is vitiated by violation of the principles of
natural justice."
918 INDIAN LAW REPORTS ALLAHABAD SERIES

In case of Union of India Vs W.N.
Chadha, AIR 1993 SC 1082 after
registration of the case against the
accused, the Director, CBI requested the
authority
in
Switzerland
for
freezing/blocking certain bank accounts
of the accused which had relevency in the
investigation of the case whereupon
Federal Department of Justice and Police
in Switzerland made an application before
the concerned court which vide order
dated 29.1.1990 froze the said bank
account and further directed that the
account shall remain frozen till 28
February, 1990 and further necessary
assistance would be rendered only on
receipt of the letter rogatory from a
competent judicial authority in India. In
response thereto, the C.B.I. approached
the Special Judge, Delhi to issue a letter
rogatory/request
to
Switzerland
for
getting the necessary investigation, which
was allowed vide order dated 05.02.1990.
In the meantime, certain public interest
litigation was filed and the matter
travelled up to the Hon'ble Apex Court.
Detail facts and orders passed in those
cases
have
no
relevance
to
the
controversy herein. What is relevant to
mention here is that one of the accused
W.N. Chadha filed a criminal writ petition
before
the
High
Court
of
Delhi
challenging the legality and validity of the
first information report and also the letter
rogatory issued by the Special Court. The
High Court allowed the writ petition and
quashed the first information report as
well as letter rogatory issued on two
occasions and other proceedings. The
issue was taken to the Hon'ble Apex
Court by way of Special Leave Petition.
One of the issue raised before Hon'ble
Apex Court was whether the letter
rogatory issued without hearing the
accused is violative of principle of natural
justice and thereby has become liable to
be quashed. While considering the said
issue, it was observed in paragraph 80 &
81 as under :

"80. The rule of audi alteram partem
is a rule of justice and its application is
excluded where the rule will itself lead to
injustice. In A.S. de Smith's Judicial
Review of Administrative Action, 4th Ed.
at page 184, it is stated that in
administrative law, a prima facie right to
prior notice and opportunity to be heard
may be held to be excluded by implication
in the presence of some factors, singly or
in combination with another. Those
special factors are mentioned under items
(1) to (10) under the heading "Exclusion
of the audi alteram partem rule". 81.
Thus, there is exclusion of the application
of audi alteram partem rule to cases
where nothing unfair can be inferred by
not affording an opportunity to present
and meet a case. This rule cannot be
applied to defeat the ends of justice or to
make the law 'lifeless; absurd, stultifying
and self-defeating or plainly contrary to
the common sense of the situation' and
this rule may be jettisoned in very
exceptional
circumstances
where
compulsive necessity so demands."

The Apex Court in the case of State
of M.P. Vs. Dr. Krishna Chandra
Saksena, reported in (1996) 11 SCC
439, relied by learned counsel for the
respondents, held that at the stage of
granting of sanction, accused need not be
heard. Para 8 of the said judgment is as
follows :

"8. On a careful consideration of the
rival contentions it is found that the
learned Single Judge had ex fade erred in
interfering with the criminal proceedings
2 All. Shri Raghav Bahl Vs Union of India & Anr.
919
at the stage of filing a challan after
investigation which was backed up by
relevant sanction. It is now well settled
that interference under Section 482 Cr.PC
for quashing a criminal proceeding
should be done very sparingly and in
exceptional cases. In the case of State of
Haryana v. Bhajan Lal it has been laid
down by a two member Bench of this
Court speaking through S. Ratnavel
Pandian, J., that the power of quashing a
criminal proceeding should be exercised
very sparingly and with circumspection
and that too in the rarest of rare cases.
The extraordinary or inherent powers do
not confer an arbitrary jurisdiction on the
High Courts to act according to its whim
or caprice. The court will not be justified
in embarking upon an enquiry as to the
reliability or genuineness or otherwise of
the allegations made in the FIR or the
complaint. It has also been laid down by
way of illustration as to under what
circumstances the High Court can be
justified in interfering with the criminal
proceedings under Article 226 of the
Constitution of India or Section 482
Cr.PC."

The
case
of
Zenit
Mataplast
Private Ltd Vs State of Maharashtra
(2009)10 SCC 388, relied by the learned
counsel for the petitioner, does not
address the issue involved in the present
case. That case does not assist the
appellant, since the facts and issue
involved therein differ materially from
those in present case. In the instant case, it
is correct that prior of granting sanction,
the show-cause notice was issued on
01.05.2019 and complaint was filed on
03.05.2019 by declining the request of
petitioner for grant of more time to submit
his submissions but from the above stated
position of law it is quite apparent that
grant of sanction is an administrative act
and there is no requirement to provide an
opportunity of hearing to the accused
before according sanction. Once there was
no
requirement
of
affording
an
opportunity of hearing to the petitioner
before grant of sanction, it would not
make any difference that the request of
petitioner for granting more time to
submit reply in pursuance of notice dated
01.05.19 was declined.

In view of aforesaid legal position,
no fault can be found with the alleged
notice dated 01.05.19 or with grant of
sanction. The complaint or proceeding
thereof are not vitiated on ground that no
opportunity of hearing was granted to the
petitioner before according sanction or
before instituting the complaint. The
contention raised in this regard by the
learned counsel for the petitioner has no
substance.

6. So far the argument that alleged
property in London can not be termed as
''undisclosed foreign income and assets''
and that necessary ingredients of Section
50 and 51 of Black Money Act, 2015 are
not satisfied and that no prima facie case
is made out against the petitioner, is
concerned, in view of allegations made
against petitioner and material on record,
it can not be said that prima facie no case
is made out against the petitioner. There
are allegations against the petitioner that
alleged payment of GBP 145047 and GBP
28998.6 for property in question were
made on 11.06.2018 and 27.07.2018 and
Ms. Ritu Kapur has made payments of
GBP 72523.4 and GBP 43514.1 on
07.08.2018 and 29.10.2018 while the
alleged
assignment
was
made
on
01.11.2017 and thus, payments for the
alleged property were made by petitioner
920 INDIAN LAW REPORTS ALLAHABAD SERIES
and Ms. Ritu Kapur after alleged
assignment, which is contradictory with
the version of petitioner. No terms,
conditions and consideration have been
mentioned in the alleged assignment nor
petitioner has provided share transfer
deed of RBRK Investment. Further,
petitioner has shown the London property
as directly held asset in his ITR for
Assessment Year 2018-19, that is after the
purported assignment of the property to
M/s RBRK Investments Ltd. Alleged
Assignment deed was not registered and
even as per petitioner, he was assigned
shares of M/s RBRK Investments Ltd
only in month of February 2019 and thus,
as per the respondents, alleged assignment
deed was afterthought. As per AY 201718 and 2018-19, total share holding of
petitioner in M/s RBRK Investment Ltd is
merely of Rs 200/ while of Ritu Kapur is
Rs 2,51,16,284/. The account in name of
his minor son, was not disclosed by the
petitioner in return of income for 201718. No details of RB Trust and Vidur
Bahl having been allotted any shares,
were
provided.
Further,
as
per
respondents, the prosecution has been
launched u/s 50 of Black Money Act for
non disclosure of foreign bank accounts in
the name of his minor son Vidur Bahl as
there is no such disclosure in the ITRs of
petitioner and that there is nothing to
show that any shares have been allotted to
Vidur Bahl. As per respondent, Prima
facie, petitioner is owner of the said
property and he has under-reported total
investment till 31.03.2018 in London
property, which falls within the ambit of
section 51 of Black Money Act 2015.

7. Recently in case of Srinidhi Karti
Chidambaram vs The Principal Chief
Commissioner decided on 2 November,
2018, (W.A.Nos.1125 to 1128, 1130 &
1131 of 2018, W.P.Nos.13005 to 13007,
13008 to 13010, 13070 to 13072, 13041
to 13043, 11714, 11715 & 22329 to
22331
&
22333
of
2018
and
Rev.Appl.Nos.79 to 82 of 2018 and
Connected WMPs, CMPs and MPs),
Hon'ble Madras High Court had an
occasion to consider the provisions of
Black Money Act 2015 and it was held as
under:

''The object of the Black Money
(Undisclosed Foreign Income and Assets)
and Imposition of Tax Act, 2015 (BMA
2015 for short) is not only assessment of
total disclosed foreign asset and income
of an assessee but also mandates true and
full disclosure of such foreign asset or
income to be disclosed voluntarily by a
resident assessee in the return of income
filed by him under the Income Tax Act,
1961. Failure of such assessee to furnish
return of income under s.139(1) attracts
prosecution under s.49 of BMA, 2015;
Failure to disclose fully and truly by such
assessee details of foreign assets and
income in a return of income filed under
s.139(1) attracts prosecution under s.50
of BMA 2015 and attempts in any manner
to evade tax, penalty that proceedings
should be initiated and completed U/s 10
of the BMA before invoking the provisions
of Chapter of V particularly Section 50
read with Section 55 is not tenable.
Section 10 deals with assessment of
undisclosed foreign income and asset. As
per section 2(11), undisclosed asset
located outside India means an asset held
by the assessee in his name or in respect
of which he is a beneficial owner, and he
has no explanation about the source of
Investment
in
such
asset
or
the
explanation given by him is in the opinion
of the Assessing Officer unsatisfactory.
The provisions of Section 50 (falling
2 All. Shri Raghav Bahl Vs Union of India & Anr.
921
under chapter V) are attracted for failure
to furnish in a return of income filed any
information about an asset (including
financial interest in any entity) located
outside India. Thus it can be seen the
proceedings under s 10 and proceedings
under 5.50 are separate and distinct. It is
pertinent to point out here that even
assuming that the assessee has provided
explanation to the satisfaction of the A.0,
regarding the source of investment of
asset
located
outside
India,
still
prosecution under s.50 is attracted for
failure to furnish any information of asset
located outside India in return of Income
filed in the prescribed form setting forth
such details in the prescribed manner. It
therefore follows that the process of
sanctioning prosecution can commence
even before completion of assessment U/s
10(3) of the BMA, 2015. The scheme of
the Act makes It clear that assessment and
prosecution are not only distinct and
separate but the two proceedings are
independent and irrespective of the
outcome of the assessment under s.10(3)
of the BMA, 2015. Besides, it has been
held by the Hon'ble Supreme Court in
P.Jeyappan Vs S.K. PERUMAL, 1984 AIR
1693 that the pendency of assessment
proceedings cannot act as a bar to
institution of criminal prosecution for
offences punishable under the provisions
of law''.

8. In the instant case on a careful
consideration of the aforesaid facts and
circumstances of the case and the
provisions of law, we are satisfied that
there exists a prima facie case to initiate
prosecution against the petitioner for the
offence in terms of section 50, 51 of the
Black Money Act, 2015 and it could not
be said that a prima facie case is not made
out against the petitioner. The legal
position on the issue of quashing of
criminal proceedings is well-settled that
the jurisdiction to quash a complaint, FIR
or a charge-sheet should be exercised
sparingly and only in exceptional cases
and Courts should not ordinarily interfere
with the investigations of cognizable
offences. However, where the allegations
made in the FIR or the complaint even if
taken at their face value and accepted in
their entirety do not prima facie constitute
any offence or make out a case against the
accused, the FIR or the charge-sheet may
be quashed in exercise of powers under
Article 226 or inherent powers under
Section 482 of the Cr.P.C. In the well
celebrated judgment reported in AIR 1992
SC 605 State of Haryana and others Vs.
Ch. Bhajan Lal, also referred by learned
counsel
for
the
petitioner,
Hon'ble
Supreme Court has carved out certain
guidelines, wherein proceedings can be
quashed
but
cautioned
that
those
guidelines should be exercised sparingly
and that too in the rarest of rare cases.
Guidelines are as follows:

(1) Where the allegations made in the
First Information Report or the complaint,
even if they are taken at their face value
and accepted in their entirety to do not
prima facie constitute any offence or
make out a case against the accused.

(2) Where the allegations in the First
Information Report and other materials, if
any, accompanying the FIR do not
disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under
an order of a Magistrate within the
purview of Section 156(2) of the Code.

(3)
Where
the
uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of
the same do not disclose the commission
922 INDIAN LAW REPORTS ALLAHABAD SERIES
of any offence and make out a case
against the accused.

(4) Where, the allegations in the FIR
do not constitute a cognizable offence but
constitute only a non-cognizable offence,
no investigation is permitted by a police
officer without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.

(5) Where the allegations made in the
FIR or complaint are so absurd and
inherently improbable on the basis of
which no prudent person can every reach
a just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(6) Where there is an express legal
bar engrafted in any of the provisions of
the Code or the concerned Act (under
which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a
specific provision in the Code or the
concerned Act, providing efficacious
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private
and personal grudge."

9. The issue has been reconsidered
by the Supreme Court on several
occasions. In (2003) 6 SCC 195 (Union of
India vs. Prakash P. Hinduja and Another)
the Supreme Court narrowed down the
scope of Ch. Bhajan Lal (supra) and held
as follows:

"The grounds on which power under
Section 482 Cr.P.C. can be exercised to
quash the criminal proceedings are: (1)
where the allegations made in the FIR or
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima facie constitute any offence
or make out a case against the accused,
(2) where the uncontroverted allegations
made in the FIR or the complaint and the
evidence collected in support of the same
do not disclose the commission of any
offence and make out a case against the
accused, (3) where there is an express
legal bar engrafted in any of the
provisions of the Code of Criminal
Procedure or the Act concerned to the
institution
and
continuance
of
the
proceedings. But this power has to be
exercised in a rare case and with great
circumspection."

In case of State of Haryana v. Bhajan
Lal & Ors. (supra) also, in guideline
number 3 it was laid down that where the
uncontroverted allegations made in the
FIR or complaint and the evidence
collected in support of the same do not
disclose the commission of any offence
and do not make out a case against the
accused, the Court may quash the FIR as
well as the investigations, however a note
of caution was added by observing that
the power of quashing a criminal
proceeding should be exercised sparingly
and with circumspection and that too in
the rarest of rare cases. It was held that
the Court would not be justified in
embarking upon an inquiry as to the
reliability or genuineness or otherwise of
the allegations made in the FIR or the
complaint.

In the judgments of Rupan Deol
Bajaj v. K.P.S. Gill; reported in (1995)
SCC (Cri) 1059, Rajesh Bajaj v. State of
NCT of Delhi; reported in (1999) 3 SCC
259 and Medchl Chemicals & Pharma (P)
2 All. Shri Raghav Bahl Vs Union of India & Anr.
923
Ltd. v. Biological E Ltd. & Ors; reported
in 2000 SCC (Cri) 615, the Apex Court
clearly held that if a prima facie case is
made out disclosing the ingredients of the
offence, Court should not quash the
complaint. However, it was held that if
the allegations do not constitute any
offence as alleged and appear to be
patently absurd and improbable, Court
should
not
hesitate
to
quash
the
complaint. The note of caution was
reiterated that while considering such
petitions the Courts should be very
circumspect, conscious and careful. Thus,
there is no controversy about the legal
proposition that in case a prima facie case
is made out, the FIR or the proceedings in
consequence thereof cannot be quashed.

10. It was further submitted by the
learned counsel for the petitioner that the
entire proceedings against the petitioner
are malicious and that respondents are
trying to put 'cart before the horse', it may
be observed that no specific material was
indicated in support of alleged plea and
even otherwise, such questions can not be
examined by this Court in proceedings
under Article 226 of the Constitution of
India. The appreciation of evidence or the
reliability of the allegations can not be
examined at this stage. In State of Orissa
v. Saroj Kumar Sahoo (2005) 13 SCC 540
it has been held that probabilities of the
prosecution version can not be analysed at
this stage. Likewise, the allegations of
mala
fides
of
the
complainant/
respondents are of secondary importance.
The relevant passage reads thus: (SCCp.
550, para 11)

"11......It would not be proper for the
High Court to analyse the case of the
complainant
in
the
light
of
all
probabilities
in
order
to
determine
whether
a
conviction
would
be
sustainable and on such premises arrive at
a conclusion that the proceedings are to
be quashed. It would be erroneous to
assess the material before it and conclude
that the complaint cannot be proceeded
with."

11. From the above stated case law it
is apparent that the adjudication of
questions of facts and appreciation of
evidence or examining the reliability and
credibility of the version, does not fall
within the arena of jurisdiction under
Article 226 of the Constitution of India. In
view of the material on record it can not be
held that the impugned notice or criminal
proceeding are manifestly attended with
mala fide and maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him
due to private and personal grudge. The
criminal proceedings can be quashed only
in accordance with parameters laid down by
Hon'ble Apex Court in catena of decisions.
The present petition does not fall in any of
such category, wherein, this Court can
exercise jurisdiction under Article 226 of
the Constitution of India to quash the
impugned notice and complaints.

12. In view of aforementioned facts
and
legal
position
and
considering
submissions of the parties, allegations
made against petitioner and perusing the
material on record including sanction
order, it could not be said that no prima
facie case is made out against the petitioner
or that the petitioner deserves any relief
claimed by him. The petition lacks merit
and thus, liable to be dismissed.

13.

Hence
the
petition
is
accordingly, dismissed.
----------
924 INDIAN LAW REPORTS ALLAHABAD SERIES
(2019)10ILR A 924

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

First Appeal No. 188 of 2017

Smt. Prabha ...Appellant
Versus
Kapil Kumar Singh ...Respondent

Counsel for the Appellant:
Sri Shiv Shankar Pd Gupta, Sri S.S.P.
Gupta

Counsel for the Respondent:
Sri Arun Kumar Srivastava, Sri Abhishek
Kumar Yadav, Sri Amit Kumar Srivastava,
Sri Arun Kumar Vishvakarma, Sri Arun
Kumar Srivastava, Sri Bhola Nath Yadav.

A. Hindu Marriage Act, 1955 - Section 24 -
Interim maintenance - Object - To provide
interim maintenance so that the parties in
whose favour maintenance is awarded is
able to support herself - Relevant factor -
Petitioner's own income and the income of
the respondent. (Para 12)
Husband Petition for dissolution of marriage -
Wife moved application for interim maintenance
- Court below, awarded a lump sum amount of
Rs. 5000/- towards litigation expenses & a sum
of Rs. 3,000/- towards interim maintenance for
the wife and her minor son - Sum of Rs. 3,200/-
was already awarded to the wife & to his minor
son, towards interim maintenance in proceedings
under section 125 Cr.P.C - Amount paid under
section 125 Cr.P.C. was to be adjusted - For all
practical purposes, no amount of interim
maintenance was awarded under section 24 of
Act 1955 - Wife First Appeal before High Court
Held: - High Court modified the judgement by
directing that wife shall be entitled to a sum of
Rs.
6,000/-
per
month
towards
interim
maintenance i.e. Rs. 4000/- for herself and Rs.
2,000/- for minor son. However, the amount of
maintenance paid and awarded under section
125 Cr.P.C. shall be adjusted. (Para 20)
First Appeal allowed (E-5)
List of cases cited: -
1. Neeta Rakesh Jain Vs Jeetmal Jain (2010) 12
SCC 242
2.Manish Jain Vs Akansha Jain (2017) 15 SCC 801
3.Lalta Prasad Kushwaha Vs Jayanti Kushwaha
(2019) 2 ADJ 12

(Delivered by Hon'ble Rajeev Misra, J.)

1. This is defendant's appeal under
section 19 of Family Court Act, 1984
(hereinafter referred to as 'Act 1984') arising
out of judgement and order dated 24.4.2015,
passed by Principal Judge, Family Court,
Mathura in Misc. Case No. 294 of 2010 (Smt.
Prabha Vs. Kapir Kumar Singh) under section
24 of Act 1984, in Marriage Petition No. 294
of 2010 (Kapil Kumar Singh Vs. Smt.
Prabha), whereby application (paper no. 4 Ga)
filed by defendant-appellant for interim
maintenance has been decided to the
dissatisfaction of plaintiff-appellant.

2. We have heard Mr. S.S.P. Gupta,
learned counsel for defendant-appellant.
Inspite of revision of cause list, no one
has appeared on behalf of defendantrespondent even though names of five
advocates namely, Mr. Amit Kumar
Srivastava, Mr. Arun Kumar Srivastava,
Mr. Abhishek Kumar Yadav, Mr. Arun
Kumar Vishvakarma and Mr. Arun
Kumar Srivastava are printed in cause list.

3. Plaintiff-respondent, Kapil Kumar
Singh filed Marriage Petition No. 294 of