NIKITA NIMESH SHAHversusDIRECTORTE OF ENFORCEMENT ASST. DIRECTOR MUMBAI ZONAL OFFICE 1AND ANR

                                                               35.WP.4083.2026.doc

Ajay

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL WRIT PETITION NO. 4083 OF 2026

       Nikita Nimesh Shah                                 .. Petitioner
             Versus
       Directorate of Enforcement
       Asst. Director Mumbai Zonal Office – I and Anr.    .. Respondents

                                 ....................
        Mr. Bhavesh Thakur, Advocate for Petitioner.
        Ms. Manisha Jagtap, Advocate for Respondent No.1 – ED.
        Ms. Gauri Rao, APP for Respondent No.2 – State.
                                    ......…...........

                                    CORAM : MILIND N. JADHAV, J.
                                    DATE        : AUGUST 31, 2026.

       P.C.:

       1.        Heard Mr. Thakur, learned Advocate for Petitioner; Ms.

       Jagtap, learned Advocate for Respondent No.1 - ED and Ms. Rao,

       learned APP for Respondent No.2 – State.


       2.        This Petition is filed by the petitioner under Section 528 of

       Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) read with

       Article 227 of the Constitution of India to quash and set aside the order

       dated 14.02.2025 passed in PMLA Special Case No.313 of 2025, by

       virtue of which the Special Court at Greater Sessions, Mumbai has

       issued process against the Petitioner and 14 other co-accused persons.


       3.        Mr. Thakur, learned Advocate would argue that complaint is

       filed by the Directorate of Enforcement before the Special Court at

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Mumbai on 10.02.2025. He would submit that on that date, the case

was adjourned to 14.02.2025 for cognizance. However, on 14.02.2025,

without issuing notice to the Petitioner as also to any other co-accused

persons as mandated by the proviso of Section 223 of BNSS, the

Special Court, ex-parte took cognizance and issued process against the

Petitioner and 14 other co-accused persons.


3.1.      He has taken me through the gist of the prosecution case as

averred in paragraph No.3 of the Petition. For the sake of brevity, I do

not deem it necessary to repeat and reiterate the same herein. He

would submit that based on a written complaint dated 11.12.2020

filed by State Bank of India, First Information Report (FIR) was

registered by CBI on 07.11.2022 for offences punishable under Section

120B read with 420 of Indian Penal Code (for short ‘IPC’) and Sections

13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 against

M/s. Max Flex & Imaging Systems Private Limited, Hitesh Jobalia,

Nimesh Shah, Ms. Dipti Jobalia and unknown public servants.


3.2.      He would submit that Petitioner is the wife of Nimesh Shah.

He would submit that based on the aforesaid FIR, Respondent No.1

registered ECIR case on 13.12.2022 and during investigation

conducted search at Petitioner's house. He would submit that during

that search, two mobile phones and two files of Petitioner's husband

were seized and certain documents of one demat account of Petitioner



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and another demat account of Petitioner's mother-in-law were seized

and frozen by order dated 11.09.2023 on the ground of suspicion that

the said demat accounts may have received proceeds of crime.


3.3.     He would submit that show cause notice was thereafter

issued to Nimesh Shah, husband of Petitioner in terms of Section 8 of

the Prevention of Money Laundering Act, 2002 (for short ‘PMLA,

2002’), but this show cause notice was never served upon the

Petitioner, notwithstanding the fact that Petitioner's demat account

was seized and frozen.


3.4.     He    would     submit   that   pursuant   to   completion      of

investigation, Respondent No.1 - Enforcement Directorate filed

complaint before the Special Court on 10.02.2025 and immediately on

14.02.2025 without even issuing notice to Petitioner and other co-

accused persons under Section 223 of BNSS, the Special Court took ex-

parte cognizance and issued process.

3.5.     He would submit that no inquiry or investigation is done

with the Petitioner. Neither the Petitioner has received any summons

or notice from Respondent No.1 and most importantly Petitioner is not

granted any opportunity to discharge the burden under Section 24 of

PMLA, 2002.


3.6.     In the above set of facts, Mr. Thakur would vehemently

submit and invoke Section 223 of the BNSS corresponding to Section

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200 of the Criminal Procedure Code, 1973 (for short ‘Cr.PC’). He

would submit that the factual position after filing of the complaint and

issuance of the process is undisputed and admittedly no notice has

been issued to the Petitioner by the Sessions Court.


3.7.         He would submit that Section 223(1) incorporates right of

hearing at a pre-cognizance stage and clearly mandates that no

cognizance of an offence on the basis of a complaint shall be taken by

the Magistrate without giving the accused an opportunity of being

heard. He would submit that the said provision is there on the statute

to provide an opportunity of hearing to the accused person at a pre-

cognizance stage with a view to ensure that the accused is not made to

suffer the ordeal of facing the prosecution by resorting to private

complaint mechanism indiscriminately.


3.8.        In support of his above submission, he has drawn my

attention to the decision of the Supreme Court in the case of Kushal

Kumar Agarwal Vs. Directorate of Enforcement ,1 wherein the question

of applicability of the first proviso to Section 223(1) of the BNSS, 2023

regarding warranting an opportunity of hearing to the accused person

in a PMLA prosecution complaint came up before the Supreme Court.

He would submit that in paragraph Nos.5 to 7 of the said decision, the

Supreme Court answered the aforesaid question as follows:-



1   2025 SCC OnLine SC 1221

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            “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/s Union of India and Tarsem Lal v/s Enforcement
            Directorate. 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.
            6.    The proviso to sub-section (1) of Section 223 puts an
            embargo on the power of the Court to take cognizance by
            providing that no cognizance of an offence shall be taken by the
            Magistrate without giving the accused an opportunity of being
            heard.
            7.    In this case, admittedly, an opportunity of being heard
            was not given by the learned Special Judge to the appellant
            before taking cognizance of the offence on the complaint. Only
            on that ground, the impugned order dated 20th April, 2024,
            will have to be set aside.”


3.9.         He would submit that in a very recent decision of the

Supreme Court in the case of Parvinder Singh Vs. Directorate of

Enforcement2, the Supreme Court once again considered the

applicability of the first proviso to Section 223(1) of the BNSS to a

prosecution complaint under PMLA, 2002 and held that the said

provision confers a substantive right upon the accused person to be

heard before taking cognizance which forms a part of the right of an

accused to a fair trial enshrined under Article 21 of the Constitution of

India.


3.10.       The Supreme Court stressed upon the word "shall" occurring

in the first proviso to be construed to be mandatory in nature, enuring

to the benefit of an accused person and held that cognizance of an

2   (2026) SCC OnLine SC 903

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offence taken by a Court without due compliance of the aforesaid

proviso would be void ab initio.


3.11.         He would argue that the Supreme Court concluded that

Sections 200 to 205 of the Cr.PC and now Sections 223 to 228 of BNSS

would be applicable to proceedings under the PMLA 2002 and non-

compliance with the first proviso to Section 223(1) of the BNSS

vitiates the order taking cognizance and such an order cannot be

sustained in the eyes of law.


3.12.          Hence, he would persuade the Court to allow the Petition in

terms of prayer clause (b) and set aside the impugned order dated

14.02.2025.


3.13.         In support of his case, he has referred to and relied upon the

decisions of this Court in the following cases (i) Neville Tuli Vs.

Securities And Exchange Board of India and Ors. 3 (ii) Mr. Sunil J.

Anandpara and Anr. Vs. Directorate of Enforcement and Anr.4.

4.            Ms. Jagtap, learned Advocate appearing on behalf of

Respondent No.1 – Enforcement Directorate, in support of the case of

Respondent No.1 and the impugned order has persuaded me to

consider a recent judgment of the Supreme Court in the case of

Parvinder Singh Vs. Directorate of Enforcement passed in Criminal

Appeal (supra)

3    Writ Petition No.5242 of 2025 – Decided on 15.07.2026
4    Cri. Writ Petition No.3159 of 2025 – Decided on 22.07.2026

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5.         After going through the aforesaid submissions, it is prima

facie seen that the learned Special Counsel appearing for Respondent

No.1 – Directorate of Enforcement does not dispute the legal position

nor he disputes the fact that Petitioner was not heard by the Special

Court before it took cognizance. The fair-mindedness with which the

learned Counsel for Respondent No.1 – Directorate of Enforcement

has argued the present matter is appreciated by the Court.


6.        In view of the above, the impugned order dated 14.02.2025

cannot be sustained on the ground that the Petitioner was not given an

opportunity of hearing before taking cognizance. Accordingly, the said

impugned order dated 14.02.2025 passed in PMLA Special Case

No.313 of 2025 is quashed and set aside. As a consequence of setting

aside the order dated 14.02.2025, the proceedings arising out of ECIR

bearing No.ECIR/MBZO-I/73/2022 are restored to the file of the

Special Court at the stage of cognizance.


7.        Petitioner shall appear on the next date of hearing before the

Special Court and the Special Court shall give an opportunity of

hearing to the Petitioner in accordance with the extant legal position.


8.        Issuance of any further notice to the Petitioner is dispensed

with. Petitioner is directed to appear on the next date before the

Special Court. The Advocate for the Petitioner shall convey the same to

the Petitioner. No further notice shall be required to be issued to the


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                              Petitioner. Petitioner shall however be informed by Respondent No.1 –

                              Directorate of Enforcement well in advance about the date of listing of

                              the aforesaid case before the Special Court.


                              9.        In view of the above, Petition is accordingly allowed in terms

                              of prayer clause ‘b’.


                              10.       Parties are directed to cooperate with the Special Court.


                              11.       Parties are directed to act on a certified or server copy of this

                              order downloaded from the website of the High Court of Bombay.


                              12.       Writ Petition is allowed and disposed.



                                                                         [ MILIND N. JADHAV, J. ]

       AjayDigitally signed
           by AJAY
AJAY       TRAMBAK
TRAMBAK    UGALMUGALE
UGALMUGALE Date:
           2026.08.31
           11:42:08 +0530




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