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1997 Supreme(Ker) 388

K.T.THOMAS, M.K.MUKHERJEE
Associated Cement Co. Ltd. – Appellant
Versus
Keshvanand – Respondent


Judgement Key Points

Key Points: - The court discusses the interpretation and application of S.247 of the old Code and S.256 of the new Code, focusing on constraints and practical implications for juristic complainants. (!) - The Magistrate should not have acquitted under S.247 of the old Code on the facts of this case; the prosecution should proceed from the stage before acquittal. (!) - A complainant being a company can be represented in court by a natural person; the de jure complainant is the company, and a de facto representative must be associated. (!) (!) - The difference between appeal and revision is essential; appellate jurisdiction reviews evidence within statutory limits, while revision is supervisory and limited to legality/propriety. (!) (!) (!) - S.200 examination of the complainant on oath is mandatory; absence of the complainant on the date of hearing can lead to dismissal/acquittal only if justified under the provisions, and the court must exercise discretion judicially. (!) (!) - The decision emphasizes that a juristic complainant may be represented by others, and absence of the corporeal complainant can be accommodated by permitting another representative. (!) (!)

What is the interpretation and application of S.247 of the old Code and S.256 of the new Code when the complainant is a company or juristic person?

What are the constraints on the court in exercising the power under S.247 (old Code) / S.256 (new Code) and the practical implications for a juristic complainant?

What is the appropriate approach of appellate courts when a trial court acquits due to non-appearance of the complainant and how should proceedings proceed post-acquittal?


Judgment :-

1. Leave granted.

2. Appellant - company has been prosecuting the respondent in the court of Judicial Magistrate (First Class), Jammu, alleging the offence under S.138 of the Negotiable Instruments Act, but learned Magistrate acquitted the respondent on 14.3.1996 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
































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