Important Point
When the Court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and if his presence was unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power u/s 256 Cr.P.C., 1973.

Headnote:(i) Criminal Procedure Code, 1973-Sections 378, 397/401-Appeal and revision-Difference between-Appellate jurisdiction is coextensive with original court’s jurisdiction as for appraisal and reappreciation of evidence-Revisional powers belong to supervisory jurisdiction of a superior Court-While exercising revisional powers, Court has to confine to legality and propriety of findings and also whether subordinate Court acted within its jurisdiction-In the instant case, High Court was not right in equating appellate powers with revisional powers.
       Held : It is trite legal position that appellate jurisdiction is coextensive with original court’s jurisdiction as for appraisal and appreciation of evidence and reaching findings on facts and appellate court is free to reach its own conclusion on evidence untrammelled by any finding entered by the trial court. Revisional powers on the other hand belong to supervisory jurisdiction of a superior court. While exercising revisional powers the court has to confine to the legality and propriety of the findings and also whether the subordinate court has kept itself within the bounds of its jurisdiction including the question whether the court has failed to exercise the jurisdiction vested in it. Though the difference between the two jurisdictions is subtle, it is quite real and has now become well recognised in legal provinces. (Para 9)
       (ii) Criminal Procedure Code, 1973-Sections 256 and 378-Appeal against acquittal - Trial Court acquitted an accused due to non appearance of complainant-Appellate Court has same powers as trial Court to reach a fresh decision - A decision different from trial Court can be taken by appellate Court.
       Held : When a trial court had acquitted an accused due to non-appearance of the complainant the appellate court has the same powers as the trial court to reach a fresh decision as to whether on the particular situation the magistrate should have acquitted the accused. What the trial court did not then ascertain and consider could, perhaps, be known to the appellate court and a decision different from the trial court can be taken by the appellate court, whether the order of acquittal should have been passed in the particular situation. (Para 11)
       (iii) Criminal Procedure Code, 1973-Section 256 (old Cr.P.C.-Section 247)-Non appearance of complainant-Discretion of Court to acquit accused-To be exercised judicially and fairly without impairing cause of administration of criminal justice-Court must consider whether presence of complainant is essential on that day-If his presence on that day was unnecessary-Resorting to step of axing down complaint not a proper exercise of power.
       Held : What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, court has a duty to acquit the accused in invitum. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. (Paras 13, 14)
       (iv) Criminal Procedure Code, 1973 - Section 256 - Complaint based on a cheque issued by respondent towards amounts allegedly due from him ranging to about eight lacs of rupees-Summons issued to respondent after examining attorney of complainant company-At trial, complainant was examined as witness-Case posted for further evidence-On that date complainant was absent-Case posted to next day-On that day also complainant and his counsel were absent-Order of acquittal u/s 247 of Code of Criminal Procedure, 1898 (applicable in State of J & K)-Appeal-Absence explained-Order of acquittal sustained-Appeal against-Whether on facts and circumstances, Magistrate was justified in acquitting the accused u/s 247 of the old Code?-(No, particularly since the complainant was already examined as a witness in the case besides examining yet another witness for the prosecution). (Paras 13 to 15)
       (v) Criminal Procedure Code, 1973-Section 256 (or Section 247 of the old Code)-Word ‘Complainant’-Definition-Whether Section 247 of the old Code (or Section 256 of the new Code) is applicable to a case where complainant is a, company or any other juristic person? -(Yes)-Word ‘person’ is specifically defined in Penal Code as including a company-When complainant is a body corporate-It is the de jure complainant-It must necessarily associate a human being as de facto complainant to represent the former in court proceedings-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 end of proceedings. (Indian Penal Code, 1860-Section 11).
       Held : The word “complainant” is not defined in the Code 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”. (Para 18)
       The 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. (Para 20)
       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 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 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. (Para 22)

JUDGMENT

Thomas, J.-Leave granted.

2. Appellant-company 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. Appellant-company filed an appeal in challenge of the said order of acquittal before the High Court of Jammu & Kashmir with leave but that appeal was dismissed. This appeal is against the said judgment of the High Court.

3. 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 appellant - company 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 the Code of Criminal Procedure, 1898 (which is applicable to the State of Jammu and Kashmir even now. It will hereinafter be referred to as ‘the old Code’).

4. In the appeal petition filed before the High Court it was stated that Puneet Aggarwal was posted as an officer of the appellant company at Jammu during the period when the complaint was filed, but subsequently he was transferred to Jallandhar (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 Jallandhar 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.

5. 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 following words :

“On a grammatical construction of Section 247 the intention of the legislature becomes clear. Non-appearance of the complainant, after summons are issued, according to that intention, may result in acquittal of the accused.”

On the above premise learned single Judge found that there was no legal error in the order passed by the Magistrate and hence dismissed the appeal.

6. Before we proceed to consider the merits of this appeal we may refer to a strange averment made by the respondent in the counter affidavit sworn to by him which he has filed in this court in answer to the special leave petition. After replying to various grounds, the respondent has stated, with reference to paragraph F of the special leave petition the following :

“In reply to sub-para F it is submitted that a false complaint was filed against the Respondent at the behest of one Mr. Kanwar Sein Anand, who is Forwarding and Clearing Agent of the petitioner company. The said gentleman claims to be a real brother of an Hon’ble Sitting Judge of the Supreme Court and is explo

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1997 Supreme(SC) 1674

Cases Referred (2)