Shri Sentu Dey Vs. The State of Tripura & Ors (Tripura High Court)
Disposing Criminal Petition No. 14/2021 on 28.05.2021, the Hon’ble High Court of Tripura, in Shri Sentu Dey Vs. The State of Tripura & Ors has proclaimed that a Magistrate cannot revert to calling for police investigation in a case where he has previously taken cognizance of the offences. However, it is also held that, 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 offences disclosed. This is a case of alleged evasion of GST by the petitioner herein and the consequential complaint lodged by the state GST authorities.
Facts of the case
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) 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 ₹19.74 Crores (rounded off) inclusive of tax, interest and penalty has been raised against the petitioner out of which only an amount of ₹1.18 Crores (rounded off) could be recovered. Remaining amount of ₹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.
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 03 of 2020 and was placed before the Judicial Magistrate, 1st Class, Bishalgarh, who ordered that “ …. ….. ….. After having being heard learned Specila Public Prosecutor 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 Crpc treating the complaint petition as an FIR and to submit report on the next date. Office is directed to comply the same immediately”.
The petitioner has challenged the aforementioned order dated: 02.01.2021 passed by the learned Judicial Magistrate, 1st Class, Bishalgarh under which he has sent the criminal case for investigation under Section 156(3) of Criminal Procedure Code to the concerned Police Station.
Contentions of the petitioner
(i) On 27.11.2020, when the complaint was placed before the learned Magistrate, he had taken cognizance thereon. It was thereafter not open for him to call for investigation.
(ii) The complainant had not previously approached the police by filing a complaint and that therefore, the Magistrate could not have directly sent the complaint for investigation.
(iii) The order was passed mechanically and without application of mind.
(iv) The offence alleged against the petitioner is one punishable under Section 132 of the SGST Act, which is the special statute. The general provisions of IPC in such a case cannot be invoked.
Held by the Court
