The Magistrate’s discretion in treating a Protest Petition as a complaint depends on fulfilling procedural requirements, affecting how cognizance is taken under the Code.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

1. Heard Mr. R. Ali, the counsel appearing for the petitioners. Also heard Mr. P. Borthakur, the learned Addl. Public Prosecutor, Assam representing Respondent No.1 as well as Mr. A. Choudhury, the learned counsel representing Respondent No.2.

2. This is an application under Section 528 of the BNSS , 2023 praying for quashing the entire proceedings of Complaint Case No.96/2021 pending in the court of the learned Chief Judicial Magistrate, Barpeta.

3. The Respondent No.2 is a contractor working under the PWD. In the district of Barpeta, he was executing a project. He appointed the petitioner Nekibar Rahman as his assistant to look after the work. In the meantime, the Respondent No.2 was in need of money. He discussed the matter with Nekibar Rahman and the latter told him that he can bring money from his brother-in-law/the other petitioner Tayabar Rahman. It was also informed that the Respondent No.2 has to pay an interest @ 5%. The Respondent No.2 agreed. As told by Nekibar Rahman, in order to give the money, the Respondent No.2 gave a blank signed cheque and a blank signed stamp paper to him. Accordingly, the Respondent No.2 received 4 lakhs of rupees. He never met Tayabar Rahman.

4. In the meantime, the project executed by the Respondent No.2 was completed and the total bill amount of ₹19,05,000/- was sanctioned to be paid to the Respondent No.2. The money was meant to be credited into the State Bank of India account of the Respondent No.2 at Kokrajhar.

5. The money was actually credited into the bank account of the Respondent No.2. But the same was withdrawn by presenting the cheque, which he earlier gave to Nekibar Rahman to get the loan of ₹4 lakh.

6. The Respondent No.2 alleges that for receiving the money, he never signed any documents in the office of the Executive Engineer, PWD (Rural Road), Barpeta Division. The Respondent No.2 has alleged that by using the aforementioned blank signed cheque and the blank signed stamp paper, Nekibar Rahman and Tayabar Rahman managed to misappropriate Rs. 19,05,000/-.

7. On the basis of the said FIR, police registered the Barpeta P.S. Case No.663/2017. On conclusion of investigation, police filed a Final Report stating that there were no materials under Sections 420 and 406 of the INDIAN PENAL CODE in the said case.

8. The Respondent No.2 filed a Protest Petition in the court of the Chief Judicial Magistrate, Barpeta. The case was sent back to police for further investigation. Again, police filed a Final Report on the ground that the case came into being because of mistake of facts. This time, the learned court below accepted the Final Report and directed registration of a complaint case. Three witnesses were examined before taking cognizance of any offence against the present petitioners.

9. In the meantime, the petitioner Tayabar Rahman filed an application before the court of the Chief Judicial Magistrate stating that during police investigation, his SBI Barpeta Bank Account was frozen and therefore, since the Final Report has been accepted by the court, the bank account should be defrozen. The court below listed th the case on 9 April, 2021 for hearing the parties on the aforesaid prayer.

10. Aggrieved by the aforesaid facts, the present criminal petition has been filed praying for quashing the entire proceedings on certain grounds, which this Court does not find necessary to be discussed in this judgment.

11. I have considered the submissions made by the learned counsel of both sides.

12. In Mukhtar Zaidi v. State of Uttar Pradesh & Anr., (2024) 0 Supreme (SC) 35