The principle on which a decision is based is a binding precedent, and the absence of reasons in a preliminary order does not warrant interference if it does not cause prejudice or miscarriage of justice.

Heard. Admit. Heard finally by consent of the parties.

2. A complaint was filed by the applicant before the Court of Judicial Magistrate First Class at Panaji contending that he is the share holder of Goa Urban Co-operative Bank Limited and therefore, concerned for welfare and interest of the bank. He submitted that he noticed a fact that one Mr. Sham Naik, was appointed by the bank on contract basis, although he was a former employee of the bank who had been allowed to take voluntary retirement from the bank. It was further submitted by learned Counsel for the applicant that under the Voluntary Retirement Scheme-2005, once an application of an employee seeking his voluntary retirement from the bank is allowed, his association with the bank in any manner is not permissible and in no case, such an employee can be recruited or appointed on contract basis. He submits that the fact that Mr. Naik was appointed by the bank amounted to committing of fraud by the bank as the funds of the bank stood misappropriated. So, the applicant filed a police complaint dated 27.02.2013. However, no action was taken by the police.

3. The applicant, therefore, filed a criminal complaint before the Judicial Magistrate First Class, Panaji alleging all these facts. In this complaint, the applicant prayed for issuance of directions to the respondents, that is the Police Inspector, Panaji police station and Superintendent of Police (North), Goa for registration of F.I.R. for offences punishable under Sections 404, 406 and 420 IPC against Mr. Sham Naik and one more person Mr. Vishnoo Naik, the Chairman and the principal administrator of the bank, who had acted in collision with Mr. Sham Naik. The applicant also sought a direction to the police to investigate the matter properly and submit it's report to the Court.

4. Learned Magistrate, upon perusal of the complaint, the documents filed therewith and also the reply of the police, passed the following order:

“Perused the application and documents. Perused reply filed. Heard Adv. Ryan Menezes for the applicant/complainant. Perused case-law.

I find that cognizable offences are said to have been committed by the persons named in the complaint dated 27/02/2013. The complainant is directed to examine himself and his witnesses if any as cognizance is hereby taken u/s 200 Cr.P.C. in view of the ratio in Mona Panwar Vs. Hon'ble High Court of Judicature at Allahabad (2011/SC).”

5. It is contended by learned Counsel for the applicant that the Magistrate has wrongly applied the ratio of the case of Mona Panwar Vs. High Court of Judicature of Allahabad, (2011) 3 SCC 496, to the facts of this case and erroneously took cognizance of the offences under Section 200 Cr.P.C. He submits that a decision is the authority for what it actually decides and that the ratio in the case of Mona Panwar (supra) was that whether in the facts and circumstances of that case, the order passed by the Magistrate taking cognizance of the offences alleged therein under Section 200 Cr.P.C. was correct or not and while answering this question, Hon'ble Supreme Court held that the Magistrate exercised her discretion correctly. He submits that the facts considered by Hon'ble Apex Court were that the complainant therein had alleged committing of an offence of rape by her father-in-law and that the complainant knew the accused and was also well acquainted with the witnesses. Therefore, taking cognizance of such an offence under Section 200 Cr.P.C. was seen by Hon'ble Apex Court as a proper course adopted by the Magistrate. He further submits that the facts of this case are quite different and they show that the complainant, although a share holder, does not have any control over the bank and its officers and therefore, would not be in a position to produce the relevant evidence and rather would require help of the police and as such police investigation is absolutely necessary.

6. Learned Counsel for the applicant further submits that the i