Case: National Small Industries Corporation Ltd Vs. State (NCT of Delhi) &amp; Others

2. The National Small Industries Corporation Limited (NSIC for short) - the appellant herein, is a government company within the meaning of that expression under section 617 of the Companies Act, 1956. Its object is to extend financial and other assistance to small scale industries. The appellant lodged a complaint in the Court of the Metropolitan Magistrate, Delhi, alleging that the second respondent company had issued a cheque drawn in favour of the appellant, towards discharge of its liability, and the said cheque was dishonoured when presented for payment. The appellant therefore prayed for summoning and punishing the second respondent and its Directors (respondents 3 and 4)3. On 4.2.2002, the learned Magistrate took cognizance and summoned the accused. He did not examine the complainant and its witnesses, under section 200 of the Code. He recorded the following reasons in that behalf:Complaint has been filed by a public servant in discharge of his public duties. Hence his examination is dispensed with. I have perused the record and considered the submission. I have also perused the original documents also. I consider that prima facie case under Sections 138/142 of Negotiable Instruments Act is made outRespondents 2 to 4 filed a petition under section 482 of the Code challenging the summoning order. They contended that as the complainant was a government company and not a public servant, the exemption under clause (a) of the proviso to section 200 of the Code was not available; and that the learned Magistrate could not have dispensed with the mandatory requirement of examining the complainant on oath, under section 200 of the Code. The High Court accepted the said contention on the following reasoning :Public servant is defined in section 21 of the IPC and a government company would not fall under any of the descriptions mentioned in the said section. Once it is held that NSIC is not a public servant, mandate of section 200 Cr.P.C. was to be followed by the learned MM, which provides compulsory examination of the complainant and the witnesses present, if any, on oath and on the basis of such pre-summoning evidence, the Magistrate is to decide as to whether cognizance of the offence is to be taken and summons are to be issued to the accused persons or not. This is the unambiguous mandatory procedure prescribed under section 200 Cr.P.CConsequently, by order dated 12.1.2007, the High Court allowed the petition and quashed the summoning order. It however made it clear that the learned Magistrate would be at liberty to record the statement of the complainant and the witnesses and thereafter take appropriate decision in the matter in accordance with section 200 of the Code. The said order is challenged in this appeal

Reasoning: 12. We are fortified in our view by two decisions of this Court. In Associated Cement Co. Ltd. vs. Keshvanand [1998 (1) SCC 687 ], this Court held as follows :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 absenceThe 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. (emphasis supplied)In Municipal Corporation of Delhi vs. Jagdish Lal [1969 (3) SCC 389 ], the facts were that the Delhi Municipal Corporation had by a resolution authorized the Municipal Prosecutor to launch a prosecution under section 20 of the Prevention of Food Adulteration Act. Accordingly, one S.S. Mathur, the Municipal Prosecutor, filed a complaint against the respondent. The learned Magistrate acquitted the respondent. Section 417 of the old Code provided that where an order of acquittal was passed in any case instituted upon complaint by the High Court granting special leave to appeal from the order of acquittal on an application made to it by the complainant, the complainant may present an appeal to the High Court. The Delhi Municipal Corporation made an application to the High Court for special leave under section 417 against the order of acquittal. The application was granted. When the appeal came up for hearing, the respondent raised a preliminary objection that as the complaint had been filed by S. S. Mathur, the Municipal Prosecutor, he alone was competent to file the appeal and not the Municipal Corporation. It was contended that as the application seeking leave was not filed by the complainant but by the Municipal Corporation, the appeal itself was not maintainable. The said contention was negatived by this Court. This Court expressed its inability to accept the contention that as S.S.Mathur, Municipal Prosecutor, was the complainant, the Delhi Municipal Corporation was not competent to make an application for special leave. This Court noted that S.S.Mathur, Municipal Prosecutor, filed the complaint under the authority given to him under the resolution of the Municipal Corporation. This Court held that in filing the complaint, S.S. Mathur was not acting on his own personal behalf but was acting as an agent of the Delhi Municipal Corporation and therefore, it must be deemed that the Delhi Municipal Corporation was the complainant in the case; and that as S.S. Mathur was only acting in a representative capacity and as the Delhi Municipal Corporation was the complainant, the application for special leave filed by the Municipal Corporation was properly instituted13. Resultantly, when in a complaint in regard to dishonour of a cheque issued in favour of a company or corporation, for the purpose of section 142 NI Act, the company will be the complainant, and for purposes of section 200 of the Code, its employee who represents the company or corporation, will be the de facto complainant. In such a complaint, the de jure complainant, namely, the company or corporation will remain the same but the de facto complainant (employee) representing such de jure complainant can change, from time to time. And if the de facto complainant is a public servant, the benefit of exemption under clause (a) of proviso to section 200 of the Code will be available, even though the complaint is made in the name of a company or corporation14. Thus, the answer to the question raised is :