IMPORTANT POINT
In a prosecution under Section 138 of the Negotiable Instruments Act, if the case comes within the just exception under Section 145 of the Negotiable Instruments Act, the learned Magistrate can direct the complainant to appear on a later date. But at any rate, the insistence that the complainant must appear in person to present the complaint invariably in all cases does not appear to be justified.

R. Basant, J.—Is it invariable that the complainant must appear in person before a Court to file a complaint? If the complainant is not personally present, will the Magistrate be justified in not receiving the complaint at all? Is it possible for the Magistrate to receive the complaint and post the case for recording the sworn statement to a later date after condoning the absence of the complainant on the date of presentation? In a case like Section 138 of the Negotiable Instruments Act where the personal presence of the complainant is not necessary for recording the sworn statement under Section 200, Cr.P.C. and an affidavit in its place has been filed under Section 145 of the Negotiable Instruments Act, is it at all necessary for the Magistrate to insist on the personal appearance of the complainant/his attorney? These are the questions that arise for consideration in these Criminal M.Cs.

2. The common petitioner-H.D.F.C. Ltd. is the complainant in 2 separate prosecutions-both before the learned Judicial Magistrate of the First Class-1, Kannur. The prosecutions are initiated under Section 138 of the Negotiable Instruments Act. The complaints were presented before the learned Magistrate by the counsel for the petitioner. The petitioner is an incorporated body. An officer of the petitioner-company, who is authorised under a deed of power of attorney, has filed the complaints in the name of the petitioner-company. Both complaints were presented along with applications to condone the delay in filing the complaints. When the complaints were presented, the power of attorney holder of the petitioner was not personally present. He made applications to condone his absence on the date of presentation. Those petitions were rejected. The complaints were returned to the complainant’s counsel for later presentation. Aggrieved by the course adopted by the learned Magistrate, the petitioner has come before this Court.

3. A complaint is defined under Section 2 (d), Cr.P.C. as follows:

“Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. (emphasis supplied)

Such a complaint can either be oral or in writing. So far as the complaint under Section 138 of the Negotiable Instruments Act is concerned, in view of Section 142 of the Negotiable Instruments Act, the complaint has got to be in writing. The first question is whether the complainant must be present in person to prefer the complaint. The learned counsel for the petitioner Sri Ziyad Rahman contends that there is no stipulation anywhere in law which makes it obligatory for the complainant to appear in person to present the complaint. With limitation having been prescribed for filing the complaint under Chapter XXXVI of the Cr.P.C. a rigid insistence on the personal appearance of the complainant would work out great hardship, prejudice and inconvenience to the complainants at least in some cases, urges counsel. In a case where sworn statement of the complainant under Section 200, Cr.P.C. need not be recorded at all, there is absolutely no warrant for insistence on the personal appearance of the complainant at the pre-cognizance stage, contends the counsel.

4. The contention raised is interesting and a matter of daily occurrence and relevance in criminal Courts. The learned counsel for the petitioner was hence requested to advance detailed arguments. Cognizance can be taken by Criminal Court in one of the 3 modes permitted under Section 190, Cr.P.C. It can be on receiving a complaint of facts; it can be upon a police report of such facts or it can be upon information received from any person other than a police officer or upon knowledge of the Magistrate. What is significant according to me is that Section 190, Cr.P.C. does not anywhere expressly or by necessary implication suggest or insi