M/S Supreme Technofabs Pvt. Ltd. Thru. ... vs Directorate Of Enforcement ...

1. Heard Sri Pranjal Krishna and Sri Amar Tiwari, the learned counsel for the petitioners, Sri Kuldeep Srivastava, the learned counsel for the opposite party-Directorate of Enforcement and perused the records.

2. Both the aforesaid petitions have been filed under Section 528 BNSS challenging the validity of an order dated 13.01.2026, passed by the learned Special Judge, Anti-Corruption, C.B.I., Court No.3, Lucknow in Miscellaneous Case No.5058 of 2025, arising out of ECIR No.ALSZO/06/2020, under Section 3/4 of Prevention of Money Laundering Act, Police Station Enforcement Directorate, whereby the applications filed by the petitioners for being supplied copies of documents annexed to the complaint filed by the Directorate of Enforcement have been rejected.

3. As only a single legal point is involved in both the petitions, the Directorate of Enforcement has filed a counter affidavit in Application No. 1535 of 2026 only and the learned Counsel for ED has stated that the same may be read for deciding both the petitions and there is no requirement for filing a separate counter affidavit in the other petition.

4. Briefly stated, the facts of the case are that on 04.11.2019 the CBI had filed an F.I.R. bearing No. RC0062019A0016 in Police Station CBI/ACB, under Sections 120-B, 420, 477-A I.P.C. and Section 13(1)(a) read with 13(2) of Prevention of Corruption Act, 1988 against a company M/s JVL Agro Industries Limited, seven other named persons and some unknown public servants alleging that a complaint dated 02.11.2019 had been received from an Assistant General Manager of Bank of Baroda, Varanasi Region, Varanasi alleging commission of offences of criminal conspiracy, cheating, falsification of records and criminal misconduct by the Chairman, Directors/Guarantors of M/s JVL Agro Industries Limited, Chartered Accountant of M/s Singh Dixit and Company, Chartered Account of M/s Sparsh and Company and some unknown public servants, whereby the Bank of Baroda and Punjab National Bank had been cheated to the tune of Rs.1036.43 crores. The petitioners were not named in the F.I.R.

5. After investigation, the CBI submitted a charge sheet dated 27.12.2024 against M/s JVL Agro Industries Limited, Satya Narayan Jhunjhunwala, Adarsh Jhunjhunwala, Rajneesh Vishwakarma, Rahul Kumar Singh and Ashok Kumar Pandey for the offences under Sections 120-B, 409, 420, 467, 468, 471, 477A I.P.C. The petitioners were not named in the charge-sheet.

6. Thereafter the Directorate of Enforcement has filed a complaint in the Court of Special Judge, CBI-III, Lucknow against 25 parties, including some companies and some individuals, which also include M/s Supreme Technofabs Pvt. Ltd (the applicant in Application No.1535 of 2026) and Anil Kumar Khemka (the applicant in Application No.2175 of 2026. Annexure No.1 to the complaint contains a list of 81 documents which are relied upon by the Directorate of Enforcement and which runs into 2231 pages.

7. The Special Judge issued notices to the accused persons under Section 223(1) BNSS. The petitioners and the other accused persons filed applications before the Special judge requesting for being provided with the copies of the complaint along with all its annexures and the documents relied upon, to enable them to advance submissions. The application has been rejected by means of the impugned order dated 13.01.2026 holding that the accused persons are entitled to received the copies of the documents only after the Court takes cognizance of the offence under PMLA, whereas in the present case cognizance is yet to be taken. Mere filing of the charge-sheet or complaint does not entitle an accused person to demand copies of documents, before the Court takes cognizance of the offence.

8. Assailing the validity of the impugned order, Sri. Pranjal Krishna, the learned Counsel for the petitioner, has submitted that the proviso appended to Section 223 BNSS provides that no Court shall take cognizance of any offence without giving the accused an opportunity of hearing. The accused can avail the opportunity of hearing only when he is aware of the material against him that is being relied upon by the prosecution, because the accused has to explain and persuade the Court that the material does not make out a case for taking cognizance of the offence.

9. Per contra, Sri. Kuldeep Srivastava, the learned Counsel for the Directorate of Enforcement has submitted that Section 231 BNSS provides that copies of the material relied upon by the prosecution shall be provided to the accused when he appears before the Court in response to the summons issued by the Court after taking cognizance of the offence. He has submitted that the statute does not provide for providing copies of the prosecution material before the Court takes cognizance of the offence.

10. The learned counsel for the petitioner have placed reliance on a judgment of Hon'ble Supreme Court in the case of Sarla Gupta and another Vs. Directorate of Enforcement: (2025) 7 SCC 626 and a decision of the Karnataka High Court in the case of Basanagauda R.Patil Vs. Shivananda S. Patil: (2024) SCC OnLine Kar. 96, which has been followed by a coordinate Bench of this court in the case of Prateek Agarwal Vs. State of U.P. and another: 2024 SCC OnLine All 8212 and Rakesh Kumar Chaturvedi Vs. State of U.P. and another: 2025 SCC OnLine All 4884. He has also relied upon the judgment in the case of Kushal Kumar Agarwal v. Enforcement Directorate: 2025 SCC OnLine SC 1221.

11. The learned counsel for the ED has also placed reliance on the judgment of Hon'ble Supreme Court in the case of Sarla Gupta and another Vs. Directorate of Enforcement: (2025) 7 SCC 626.

12. Section 223 of BNSS provides that a Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present. The proviso appended to Section 223 BNSS provides that cognizance of an offence shall not be taken by the Magistrate without giving the accused an opportunity of being heard.

13. Section 231 BNSS provides for providing copies of the prosecution documents to an accused person after cognizance of the offence is taken and the accused is summoned by the Court. It also provides that supply of documents in electronic form shall be considered as duly furnished.

14. In Kushal Kumar Agarwal v. Enforcement Directorate, 2025 SCC OnLine SC 1221, the Honble Supreme Court held that: -

5. This Court has taken a consistent view that a complaint filed by the Enforcement Directorate under Section 44 (1)(b) of the PMLA will be governed by Sections 200 to 204 of the CrPC. This view has been taken by this Court in the cases of Yash Tuteja v. Union of India 2024 SCC OnLine SC 533 and Tarsem Lal v. Enforcement Directorate (2024) 7 SCC 61. Therefore, the provisions of Chapter XVI, containing Sections 223 to 226, will also apply to a complaint under Section 44 of the PMLA. As the complaint has been filed after 1st July, 2024, Section 223 of the BNSS will apply to the present complaint.

15. In Sarla Gupta v. Enforcement Directorate, (2025) 7 SCC 626, the Honble Supreme Court held that: -

33.Now, we come to Section 208 CrPC. When a case is instituted by way of a complaint under Section 200 CrPC, if it appears to the learned Magistrate issuing process that the offence is triable by a Court of Session, the learned Magistrate is duty-bound to supply the copies of the statements recorded under Section 200 or Section 202 of all the persons examined by the learned Magistrate to the accused. He is also duty-bound to supply to the accused the statements and confessions, if any, recorded under Section 161 or Section 164, and any document produced before the learned Magistrate on which the prosecution proposes to rely. Even Section 208 does not permit withholding of any documents from the accused. If a document is bulky, it allows the accused to inspect it.

34.If we peruse Sections 209 and 238 CrPC (Sections 232 and 261 of the BNNS), these provisions reiterate the mandatory requirement of providing the documents referred to in Sections 207 and 208CrPC.

35.Both Sections 207 and 208, on the face of it, do not specifically apply to a complaint under Section 44(1)(b) of the PMLA. But, there is no reason why the principles laid down under Sections 207 and 208 should not be applied to a complaint under Section 44(1)(b) of the PMLA. The provisions are consistent with the principles of fair play. The object of the provisions is to protect the rights of accused persons. An accused is entitled to a fair trial as he has the right to defend himself. That is the essence of Article 21 of the Constitution. Therefore, once cognizance is taken on the basis of a complaint under Section 44(1)(b) of the PMLA, the learned Special Judge must direct that along with the process, a copy of the complaint and the following documents must be provided to the accused:

(a) Statements recorded by the learned Special Judge of the complainant and the witnesses, if any, before taking cognizance;

(b) The documents including the copies of the statements under Section 50 of the PMLA produced before the Special Court, along with the complaint, and the documents produced subsequently by the ED till the date of taking cognizance; and

(c) Copies of the supplementary complaints and the documents, if any, produced with supplementary complaints.

After cognizance is taken on the basis of the complaint, the ED cannot be heard to say that a document has been produced with the complaint or in the proceedings of the complaint, but it is not a relied upon document. The copies of documents must be supplied along with a copy of the complaint as required by sub-section (3) of Section 204CrPC [sub-section (3) of Section 227 BNSS].

16. The conclusions drawn by the Honble Supreme Court in Sarla Gupta case (supra) have been summed up in the following words: -

Conclusion:

68.Hence, some of our important conclusions are as under:

68.1.When records, instruments or documents of title of the property are seized along with the property under Sections 17 and 18 of the PMLA, the accused from whom the same are seized is entitled to true copies thereof;

68.2.Once cognizance is taken on the basis of a complaint under Section 44(1)(b) of the PMLA, the learned Special Judge must direct that along with the process, a copy of the complaint and the following documents be provided to the accused:

(i) Statements recorded by the learned Special Judge of the complainant and the witnesses, if any, before taking cognizance;

(ii) The documents including the copies of the statements under Section 50 of the PMLA produced before the Special Court, along with the complaint, and the documents produced subsequently by the ED till the date of taking cognizance; and

(iii) Copies of the supplementary complaints and the documents, if any, produced with supplementary complaints.

68.3.We hold that a copy of the list of statements, documents, material objects and exhibits that are not relied upon by the investigating officer must also be furnished to the accused. As held by this Court, the object is to ensure that the accused has knowledge of the documents, objects, etc. in the custody of the investigating officer which are not relied upon so that at the appropriate stage, the accused can apply by invoking the provisions of Section 91CrPC (Section 94 BNSS) for providing copies of the documents which are not relied upon by the prosecution.

68.4.At the time of hearing for framing of charge, reliance can be placed only on the documents forming part of the charge-sheet. In case of the PMLA, at the time of framing charge, reliance can be placed only on those documents which are produced along with the complaint or supplementary complaints. Though the accused will be entitled to a list of documents, objects, exhibits, etc. that are not relied upon by the ED at the stage of framing of charge, in ordinary course, the accused is not entitled to seek copies of the said documents at the stage of framing of charge.

68.5.At the stage of entering upon defence, an accused can apply for the issue of process for the production of any document or thing in accordance with Section 233(3)CrPC [Section 256(3) BNSS]. At this stage, he can also apply for the production of a document or a thing that is in the custody of the prosecution but has not been produced. A fair trial is a part of the right guaranteed to an accused under Article 21 of the Constitution. The right to a fair trial of the accused includes the right to defend. The right to defend consists of the right to lead the defence evidence by examining the witnesses and producing the documents. Therefore, the accused is entitled to exercise his right at the stage of entering upon defence by compelling the prosecution or a third party to produce a document or a thing in their possession or custody. The court can decline the request of the accused for issuing process for the production of documents only on the limited grounds set out in sub-section (3) of Section 233CrPC.

68.6.When at the stage of defence evidence of the accused, documents are produced on the prayer of the accused and the accused desires to cross-examine any of the prosecution witnesses based on the said documents, it is always open for the accused to apply under Section 311CrPC (Section 348 BNSS) to recall a prosecution witness already examined for further cross-examination. The reason is that the right to effectively cross-examine the prosecution witnesses is also a part of the right to have a fair trial. The accused can exercise this right even if evidence of both sides is closed.

68.7.As compared to traditional penal statutes, at the time of trial of the offence under the PMLA, there is a huge negative burden put on the accused. Therefore, it is all the more necessary that sub-section (3) of Section 233CrPC [sub-section (3) of Section 256 BNSS] should be liberally construed in favour of the accused. The reason is that the constitutional validity of Section 24 has been upheld on the ground that the accused has a full opportunity to show that he has not violated the provisions of the PMLA. He is entitled to rebut the presumption. Therefore, if the Special Court refuses the prayer made by the accused in terms of sub-section (3) of Section 233 for compelling the attendance of any witness or for production of a document in custody of the ED or a third party, the accused will not be in a position to discharge the onerous burden on him under Section 24 of the PMLA. Hence, the valuable right of the accused under Section 233(3)CrPC needs to be protected.

68.8.At the time of hearing of an application for bail governed by Section 45(1)(ii) in connection with the offences under Section 3 of the PMLA, an accused is entitled to invoke Section 91CrPC (Section 94 BNSS) seeking production of unrelied upon documents. If investigation or further investigation in progress, the ED is entitled to raise objection to production of documents sought by the accused on the ground that if the documents are disclosed at this stage to the accused, it may prejudice the investigation. Only if the court after perusing the documents is satisfied that the disclosure of the documents at that stage may prejudice the ongoing investigation, it can deny the prayer for the production of such documents.

(Emphasis added)

17. A study of the judgment in the case of Sarla Gupta (supra) reveals that the Honble Supreme Court has taken into considerations the provisions of Cr.P.C. and has emphasised on the principles of fair play and protection of the rights of accused persons to a fair trial by giving him the complete right to defend himself as a part of the Fundamental Right guaranteed under Article 21 of the Constitution. Under provisions of Cr.P.C., the accused had the right to defend himself only after the Court had taken cognizance of an offence and had summoned him to face the trial and keeping in view the provisions of Cr.P.C., the Honble Supreme Court had held that upon appearance before the Court, the accused would be entitled to receive all the prosecution documents as mentioned in the judgment and noted above.

18. Cr.P.C. stands repealed and replaced by BNSS, which contains a proviso appended to Section 223 providing that the Court shall not take cognizance of an offence without giving the accused an opportunity of being heard. As the judgment in the case of Sarla Gupta (supra) takes into consideration the provisions of Cr.P.C., it does not take into consideration the proviso appended to Section 223 BNSS, providing an opportunity of hearing to the accused persons before the Court takes cognizance of an offence.

19. The judgment in the case of Sarla Gupta (supra) categorically lays down that upon appearance before the trial Court, an accused is entitled to receive copies of the entire prosecution material mentioned in the judgment. As under the proviso appended to Section 223 BNSS, the accused has been given an opportunity of hearing before the Court takes cognizance of an offence, it necessary follows that the accused will be entitled to receive copies of the documents mentioned in paragraph 68.2 of the judgment when he appears before the trial Court to explain as to why the trial Court should not take cognizance of the offence.

20. Section 223 of BNSS corresponds to Section 200 of the Cr.P.C. which did not contain a provision for an opportunity of hearing being provided to an accused person at the pre-cognizance stage. However, a Proviso has been added to Section 223 for giving opportunity of hearing to the accused persons at pre-cognizance stage. When the corresponding provision in the new statute that has replaced the earlier provision, has introduced a specific addition to the corresponding provision of the earlier statute, the unambiguous intention of the Legislature is to deviate from the earlier provision and there is no room for interpreting the provision in any other manner. The legislature has in its wisdom introduced the provision for giving opportunity of hearing to the accused persons at pre-cognizance stage and this statutory provision has to be implemented in a meaningful manner. The opportunity of hearing will not be effective and meaningful unless the accused is provided copies of the entire material relied upon by the prosecution as mentioned in paragraph 68.2 of the judgment of the Honble Supreme Court in the case of Sarla Gupta (supra).

21. In Basanagouda R. Patil v. Shivananda S. Patil, 2024 SCC OnLine Kar 96, the Karnataka High Court held that: -

10. Therefore, the procedural drill would be this way: -

A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate/concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter.

11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.

22. The aforesaid view of the Karnataka High Court has been followed and reiterated by coordinate Benches of this court in Prateek Agarwal (supra) and Rakesh Kumar Chaturvedi (supra).

23. In view of the foregoing discussions, this Court is of the considered view that the proviso appended to Section 223, which provides that an accused shall be granted an opportunity of hearing before the trial court takes cognizance of the offence, applies to complaints filed under the Prevention of Money Laundering Act. While giving an opportunity of hearing to an accused person under the aforesaid proviso, the learned Special Judge must direct that a copy of the complaint and the following documents be provided to the accused: -

(i) Statements recorded by the learned Special Judge of the complainant and the witnesses, if any, before taking cognizance;

(ii) The documents including the copies of the statements under Section 50 of the PMLA produced before the Special Court, along with the complaint, and the documents produced subsequently by the ED till the date of taking cognizance; and

(iii) Copies of the supplementary complaints and the documents, if any, produced with supplementary complaints.

24. Accordingly, the petitions are allowed. The impugned order dated 13.01.2026, passed by the learned Special Judge, Anti-Corruption, C.B.I., Court No.3, Lucknow in Miscellaneous Case No.5058 of 2025, arising out of ECIR No.ALSZO/06/2020, under Section 3/4 of Prevention of Money Laundering Act, Police Station Enforcement Directorate, whereby the applications filed by the petitioners for being supplied copies of documents annexed to the complaint filed by the Directorate of Enforcement have been rejected, is set aside. The application is allowed and the trial Court is directed to provide copies of the documents mentioned above to the petitioners. The parties shall bear their own costs of the case.

(Subhash Vidyarthi, J.)

April 03, 2026

Ram.