Tripura HC Order in the case of Shri Sentu Dey Versus The State of Tripura

Case Covered:

Shri Sentu Dey

Versus

The State of Tripura

Facts of the Case:

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 the Criminal Procedure Code to the concerned Police Station.

This challenge of the petitioner arises in the 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 underdeclared 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. The 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 offenses 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 offenses.

Observations of the Hon’ble Court:

A perusal of this order dated 27.11.2020 would immediately show that the learned Magistrate had decided to examine the complainant or possibly the witnesses, if any, under Section 200 of Cr.P.C. on 02.01.2021. This he had decided after perusal of the case record and receipt of some of the documents, which were kept along with the rest of the record of the case. It is thus clear that the Magistrate had taken cognizance of the offences disclosed in the complaint. His action of perusal of the case record which led to his decision to examine the witnesses under Section 200 of Cr.P.C. at a later date clearly establishes application of mind on his part onthe allegations made in the complaint and which led to his making up his mind about the requirement of carrying out examination under Section 200 of Cr.P.C. Had the Magistrate perused the case records and was of the opinion that before deciding to take cognizance of the offence it was necessary to call for the police investigation, it was open for him to do so. However, in such a case, his decision would have been entirely different. The very fact that after perusal of the case record he was persuaded that there is a requirement of examination under Section 200 of Cr. P.C would establish that he had already taken cognizance of the offense. It is well settled that the stage of examination of witnesses under Section 200 of Cr.P.C. would not arise before taking cognizance by the Magistrate. Thus, these two twin facts namely, the perusal of the case record by the Magistrate and the decision that he arrived on upon perusal of the case records of examining the witnesses under Section 200 of Cr.P.C. would leave no manner of doubt that on 27.11.2020 itself he had taken cognizance of the offenses. It was thereafter not open for him to change the course and revert back to the initial option of requiring police investigation and calling for the police report. Unfortunately, on 02.01.2021 this is precisely what he did. In the said order, he has recorded that after hearing the learned P.P. and after perusal of the complaint, he was of the opinion that before taking cognizance, the matter may be investigated by the police. In the process, the learned Magistrate lost sight of the fact that the stage of taking cognizance had already been crossed on 27.11.2020 itself.

The Decision of the Court:

As the result, the impugned order dated 02.01.2021 is quashed. However, this does not put an end to the complaint lodged before the concerned Magistrate, who shall proceed further in accordance with the law from the stage of taking cognizance of the offenses disclosed.

Petition allowed in above terms and disposed of accordingly. Pending application(s), if any, also stands disposed of.

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