Case: The Associated Cement Cos. Limited Vs. Keshvanand

has been prosecuting the respondent in the court of Judicial Magistrate (First Class), Jammu, alleging the offence under Section 138 of the Negotiable Instrument Act, but learned magistrate acquitted the respondent on 24.8.1996 solely on the ground that the complainant was absent.filed an appeal in challenge of the said order of acquittal before the High Court of Jammu and Kashmir with leave but that appeal was dismissed. This appeal is against the said judgment of the High Court.2. The complaint was based on a cheque issued by the respondent towards amounts allegedly due from him ranging to a little above eight lacs of rupees. Facts, which are not disputed for the present appeal, show that appellantCompany was represented in the trial court by one Puneet Aggarwal with a power of attorney of the company. Learned magistrate took cognizance of the offence, and after examining Puneet Aggarwal on oath, issued summons to the respondent pursuant to which he appeared in court. As the trial proceeded, Puneet Aggarwal and another person were examined as prosecution witnesses and the case was posted for further evidence to 23.8.1996. On that day the complainant was absent and the counsel for the accused pressed for dismissal of the complaint. However, the magistrate posted the case to the next day, but on that day also the complainant and his counsel were absent. Then the magistrate recorded the order of acquittal of the accused under Section 247 of theCode of Criminal Procedure, 1992 (which is applicable to the State of Jammu and Kashmir even now. It will hereinafter be referred to as `the old Code).3. In the appeal petition filed before the High Court it was stated that Puneet Aggarwal was posted as an officer of theat Jammu during the period when the complaint was filed, but subsequently he was transferred to Jalandhar (in Punjab State), the advocate of the complainant (Shri K.S. Johal) faced a misfortune in his family as his brother was involved in a motor accident on 23.8.1996 and was subjected to an operation, and due to such circumstances Shri J.S. Johal could not attend the court for three days preceding 25.8.1996. It was also mentioned in the appeal petition that the aforesaid Puneet Aggarwal had in fact left Jalandhar for attending the court at Jammu on 23.8.1996, but he could not reach Jammu as motor traffic on the National Highway became paralyzed due to incessant rains which lashed the region continuously for 2 days, and that Puneet Aggarwal never knew that the case was posted to next day and hence his absence on 24.8.1996 was absolutely unintentional.4. Learned single Judge of the High Court did not take into account any of the above facts and was not persuaded to interfere with the acquittal as he adopted a "grammatical construction" of Section 247 of the old Code in the followinga grammatical construction of Section 247 the intention of the legislature becomes clear.of the complainant, after summons are issued, according to that intention, may result in acquittal of the accused."

Reasoning: 20. The word "complainant" is not defined in theCode of Criminal Procedure, whether old or new. Any person can set the law in motion except in cases where the statute has specifically provided otherwise. The word "person" is defined in the Indian Penal Code (Section 11) as including "any company or association or body of persons whether incorporated or not". By virtue of Section 2(y) of the new Code words and expressions used in that Code but not defined therein can have the same meaning assigned to them in the Penal Code. Thus when the word "person" is specifically defined in the Penal Code as including a company that definition can normally be adopted for understanding the scope of the word "complainant". However, the definition clauses subsumed in Section 2 of the new Code contains the opening key words that such definitions are to be adopted "unless the context otherwise requires". We have, therefore, to ascertain whether a company or association of persons or body corporate can be a complainant as per the new Code as for all practical purposes, looking at different contexts envisaged therein.21. Chapter XV of the New Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant....". The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complainant". Under Section 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence.22. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings.23. As the corresponding provisions in the old Code are the same for all practical purposes, the legal position discussed above is applicable to the complaint filed under the old Code as well.24. 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 person who represents the company at the first instance may either retire from the companys 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.25. At any rate, absence of the complainant envisaged in Section 249 or 256 of the new Code would include absence of the corporeal person representing the incorporeal complainant. For those reasons we are not persuaded to uphold the contention that Section 247 of the old Code (or Section 256 of the new Code) is not applicable in a case where the complainant is a company or any other juristic person.