IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.06.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.367 of 2006 and Crl.M.P.No.385 of 2007 Senthamarai ... Petitioner vs. 1. G.K.Chenniappan 2. M/s Giri Ram Finance and Leasing (P) Ltd., rep. by its Director R.Thangavelu Kalavamani, Modachur Village, Gobichettipalayam Taluk, Erode District. ... Respondents Prayer: Petition filed under Sections 397 and 401 of Cr.P.C. against the order of the learned Judicial Magistrate No.1, Gobichettipalayam, in Crl.M.P.No.960 of 2005 in C.C.No.68 of 1999 dated 29.04.2005. For Petitioner : Mr.K.Kumaraswamy For R1 : Mr.V.Rajesh O R D E R Animadverting upon the order dated 29.04.2005, passed by the learned Judicial Magistrate No.1, Gobichettipalayam, in Crl.M.P.No.960 of 2005 in C.C.No.68 of 1999, this Criminal Revision case is focussed. 2. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this Criminal Revision case would run thus: The revision petitioner/accused No.2 Senthamarai in C.C.No.68 of 1999, which was filed by Giri Ram Finance and Leasing (P) Ltd under Section 138 of the Negotiable Instruments Act, files this revision on the main ground that the complaint was filed by the said Private Limited Company represented by one of its Directors, namely Thangavelu, whereas during the pendency of the said C.C.No.68 of 1999, Crl.M.P.No.960 of 2005 was filed for replacing Thangavelu with the Managing Director, namely Chenniappan without any basis; the said https://hcservices.ecourts.gov.in/hcservices/ Thangavelu on behalf of the Private Limited Company received the amount in discharge of the claim in the complaint; if Thangavelu is left out and in his place, Chenniappan is included, certainly the defence of the accused would be prejudiced; without passing any resolution for such replacement of the Director to represent the complainant Company, the said application Crl.M.P.No.960 of 2005 was filed and it was erroneously allowed by the Magistrate concerned. 3. Heard both sides. 4. The point for consideration is as to whether the lower Court wrongly allowed Crl.M.P.No.960 of 2005 without any sound reason and without considering the probable prejudice that would be caused to the accused. 5. The learned counsel for the revision petitioner would submit that during the pendency of the complaint which was focussed for recovery of a total sum of Rs.7,00,000/- based on two cheques, one for Rs.2,00,000/- and another for Rs.5,00,000/- the accused herein the revision petitioner parted with the amount in favour of the Company through Thangavelu who was representing the complainant Company, but to the shock and surprise, without any sound ground, the Court allowed one Chenniappan to step into the shoes of Thangavelu, who was ordered to be removed from the cause title. 6. Whereas, the learned counsel for the complainant would invite the attention of this Court appropriately and appositely to the decision of the Hon'ble Apex Court reported in 1998 (1) SCC 687 [ASSOCIATED CEMENT CO. LTD. VS. KESHVANAND] more specifically paragraph 25 which runs hereunder: "Be that so, we suggest as a pragmatic proposition that no magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when a different person can represent the company e.g. the particular persons who represents the company at the first instance may either retire from the company's services or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the court. In any such eventuality it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court. At any rate, absence of the complainant envisaged in Section 249 or Section 256 of the new Code would include absence of the corporeal person representing the incorporeal complainant." and develop his argument to the effect that there is no compulsion or hard and fast rule warranting the Private Limited Company to retain one and the same person to represent the Company from the beginning till the end of the criminal case; the Board of Directors in their https://hcservices.ecourts.gov.in/hcservices/ wisdom thought fit to pass the resolution dated 24.01.2005 to remove Thangavelu and in his place appoint Chenniappan, the Managing Director to proceed with the complaint on the behalf of the Company; and the revision petitioner if at all is having a case of his own, it is for him to put forth his defence during trial. 7. A bare perusal of the decision of the Hon'ble Apex Court cited supra would display and demonstrate, exemplify and evince that the Private Limited Company which is a juristic person has got a right to prosecute the criminal case by having different persons at different point of time to represent it, depending upon the facts and circumstances; the accused is having no say in the matter and as such, the lower Court correctly placing reliance on the resolution dated 24.01.2005 allowed the application warranting no interference by this Court. Whereas, the learned counsel for the revision petitioner would submit that after the accused having parted with the entire amount by actually handing over in cash to Thangavelu, is left in the lurch. I would like to clarify that in no way the accused is prejudiced if at all what the accused pleads is a reality. It is for him during cross examination to put forth his case about the alleged payment of the entire dues to Thangavelu. It appears that when Thangavelu was representing the Company, the said Thangavelu filed an application under Section 257 Cr.P.C. for compounding the offence for withdrawal of the complaint. 8. I would like to make it clear that it is for the accused to plead before the Magistrate for taking up the said application and it is for the Magistrate to consider it. 9. The learned counsel for the first respondent herein would submit that the said application filed by Thangavelu under Section 257 Cr.P.C. was not even filed by the Advocate who appeared for the complainant Company. I am of the view that such defence he could very well put forth before the Magistrate in the event of the Magistrate venturing to consider the said application filed under Section 257 Cr.P.C. It is stated before me that the said application is not yet numbered. However, I make it clear that it is the bounden duty of the Magistrate to give a disposal to it either by returning that application or by entertaining the application and enquiring into it along with the main C.C. and passing orders and he is not justified in simply keeping on file any unnumbered petition. With the above observation, this Criminal Revision Petition is dismissed. Consequently, connected miscellaneous petition is closed. Gms Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To 1. Judicial Magistrate No.1, Gobichettipalayam 2. -do- Through The Cheif Judicical Magistrate, Erode District. + 1 cc to Mr. A.K.Kumarasamy, advocate SR.23634. + 1 cc to Mr. T. Murugamanikkam adovcate SR 23671. Crl.R.C.No.367 of 2006 VSV(CO) EU 24.7.2009. https://hcservices.ecourts.gov.in/hcservices/