Point of Law: Criminal breach of trust by public servant, or by banker, merchant or agent - Cognizance of offences by Magistrates - Police Investigation - It is well settled that stage of examination of witness under Section 200 of Cr.P.C. would not arise before taking cognizance by Magistrate - Once Magistrate takes cognizance of offence, it is not thereafter open for him to call for investigation under Section 156(3) of Cr.P.C.

JUDGMENT :

AKIL KURESHI, J.

1. The petitioner has challenged an order dated 02.01.2021 passed by the learned Judicial Magistrate, 1st Class, Bishalgarh under which he has sent a criminal case CR 03 of 2020 for investigation under Section 156(3) of Criminal Procedure Code to the concerned Police Station.

2. This challenge of the petitioner arises in following factual background:

The petitioner is a sole proprietor of one M/s. Sentu Dey, which is registered under Tripura State Goods and Service Tax Act, 2017 (Tripura State GST Act) (hereinafter to be referred to as the ‘SGST Act’) and related statutes. On 27.11.2020, Superintendent of State Taxes, Bishalgarh, filed a complaint before the Sub-Divisional Magistrate, Bishalgarh under Section 190 read with Section 200 of Cr.P.C. In the said complaint, the complainant alleged that the petitioner has under declared the outward taxable turnover and accordingly, paid less tax than he was liable to pay for the period starting from August, 2017 onwards. It is further stated that sizable demand of Rs. 19.74 Crores (rounded off) inclusive of tax, interest and penalty has been raised against the petitioner out of which only an amount of Rs. 1.18 Crores (rounded off) could be recovered. Remaining amount of Rs. 18.55 Crores (rounded off) still remains unpaid. Notices were issued to the purchasing dealers of the petitioner, who conveyed to the department that they had already paid their taxes to the petitioner for the purchases made by them from the petitioner. The complainant therefore alleged that the petitioner though had collected the taxes from the purchasing dealers, had not deposited the same in the Government revenue. The petitioner had thus committed offences punishable under Sections 132 of the SGST Act and 406 and 409 of IPC. The request, therefore, was made to the Magistrate to take cognizance of the said offences.

3. On 24.11.2020, the Sub-Divisional Magistrate, Bishalgarh ordered that the complaint may be registered as a CR Case and be transferred to the Court of JMFC, Bishalgarh. Accordingly, on 27.11.2020, the said complaint was registered as CR No. 03 of 2020 and was placed before the Judicial Magistrate, 1st Class, Bishalgarh, who passed the following order:

“Received the case record from the Court of Ld. SDJM Bishalgarh.

Make necessary entry in my T.R.

The instant case is put up today on a petition filed by Ld. Counsel Mr. J.P. Saha.

Ld. APP is present.

Perused the case record.

Received some copies of documents by firisti.

Keep these along with the case record.

Let the case be fixed for examination U/s 200 Cr.P.C.

Fix 02.01.2021 examination U/s 200 Cr.P.C.”

4. On 02.01.2021, the learned Magistrate passed the impugned order, which reads as under:

“Ld. Spl P.P. J.P. Saha is present on behalf of the complainant.

Perused the case record.

Today the case is fixed for order.

This is a complain filed by Mr. N.C. Das, Supdt. of State Taxes, Bishalgarh, Sephaijala, Tripura U/s 132(1) of the Tripura State Goods and Service Tax 2017 read with sections 406/409 of IPC against the accused person namely M/s Sentu Dey having GST-16AJITD6343A2ZT of Bairagi Bazar, Jumedpa, Sephaijala, Tripura.

Along with the petition, complainant submitted some documents with firisti.

Perused the same along with the petition.

After having being heard ld. Spl P.P. Mr. J.P. Saha on behalf of the complainant and after having perused the complainant petition, this court is consider opinion that before taking cognizance the matter be investigated by Police. So, send the original petition along with copy of this order to the OC Bishalgarh P.S. for investigation u/s 156(3) of Cr.P.C. treating the complaint petition as an FIR and to submit report on the next date.

Office is directed to comply the same immediately.

Fix. 2.3.2021 for Report.”

5. By the said order thus the learned Magistrate sent the case for investigation after registering the complaint as an FIR and called for a report. It this order the petitioner-original accused has challeng