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1997 Supreme(Raj) 924

Supreme Court
Honble M.K. MUKHERJEE & K.T. THOMAS, JJ.
Associated Cement Co. Ltd. - Appellant
Versus
Keshvanand - Respondents
Criminal Appeal No. 1239 of 1997
Decided On : December 16, 1997

Headnote:(a) Cr.P.C., 1973, Sections 200, 249 and 256 – Complainant – Who can be – When the complainant is a juristic person – Power of Magistrate to dismiss complaint, in absence of complainant, being a juristic person – Held – In absence of complainant, Magistrate has jurisdiction to dismiss complaint, provided on that day presence of complainant is essential. (Paras 22, 23 & 25)(b) Cr.P.C., 1973, Sec. 256 read with Sec. 397 and 378 – Acquittal by trial Court – Acquittal on absence of complainant – Power of superior Court in appeal and revision – Where the trial Court acquits the accused due to absence of complainant, the appellate Court has same powers to reach a fresh decision. (Para 9)

       

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. Juristic Persons as Complainants: A company or other juristic person can file a complaint in criminal proceedings. However, for practical purposes, the complaint must be represented by a natural person who acts on its behalf. The absence of this representative at a scheduled hearing can lead to the dismissal of the complaint, especially if the court deems the complainant's personal attendance necessary (!) (!) .

  2. Representation and Absence: When the complainant is a juristic person, the court expects that a de facto natural person will represent it in court proceedings. If this representative ceases to be associated with the company or is unavailable, the company can seek permission for a different person to represent it. The absence of the representative, when their presence is deemed necessary, can result in the complaint being dismissed (!) (!) .

  3. Application of Section 247/256: The provisions under Section 247 of the old Code and Section 256 of the new Code allow for the dismissal of a complaint if the complainant is absent on the day of hearing, provided the court considers the complainant's personal attendance necessary. The courts have emphasized that this power should be exercised judicially and fairly, considering whether the complainant's presence is essential for the progress of the case (!) (!) .

  4. Court's Discretion and Judicial Exercise: The exercise of the court's discretion under these sections must be based on a careful assessment of whether the complainant's absence is justifiable and whether their presence is necessary for the case to proceed. The courts should avoid dismissing complaints solely based on absence if the circumstances do not warrant it (!) (!) .

  5. Difference Between Appeal and Revision: The appellate court has the power to review the entire case and reach a fresh decision, including re-evaluating evidence and factual findings. This is distinct from revisional jurisdiction, which is supervisory and limited to legality and propriety of the lower court’s decision (!) (!) .

  6. Appellate Power in Cases of Acquittal: When a trial court acquits an accused due to the non-appearance of the complainant, the appellate court has the authority to revisit the case and potentially arrive at a different conclusion, including the possibility of convicting or further prosecuting the accused (!) .

  7. Specifics Regarding the Complaint in the Case: The complaint was filed by a company represented by a designated officer, but the officer's absence on a particular day was due to circumstances beyond their control, such as illness and transportation issues. The court found that such absence was unintentional and that the magistrate should not have dismissed the complaint solely on that basis (!) (!) (!) .

  8. Legal Position on Juristic Persons: A complaint can be filed in the name of a juristic person, but a natural person must represent the company in court proceedings. The court recognizes that the representative may change during the proceedings, and the company can seek permission for a new representative if needed (!) (!) .

  9. Practical and Judicial Approach: The courts advocate for a pragmatic approach, emphasizing that the magistrate should consider whether the complainant's personal attendance is necessary on a particular day and exercise their discretion fairly, rather than automatically dismissing complaints due to absence (!) (!) .

  10. Conclusion: The court ultimately found that the magistrate's order of acquittal based solely on the absence of the complainant was not justified. The appellate court set aside the acquittal and the High Court's judgment, allowing the prosecution to proceed from the stage prior to the order of acquittal (!) .

These points collectively clarify the legal principles surrounding the representation of juristic persons in criminal complaints, the exercise of judicial discretion under procedural sections, and the appellate review powers in cases of acquittal due to absence.


Honble THOMAS, J.–Leave granted.

(2). The 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 Instruments Act, but the learned Magistrate acquitted the respondent on 24-8-1996 solely on the ground that the complainant was absent. The appe- llant-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 lakhs of rupees. Fa- cts, which are not disputed for the present appeal, show that the 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 & 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 K.S. Johal could not attend the court for three days preceding 25.8.1996. It was also mentioned in the appeal petition that aforesaid Puneet Aggarwal had in fact left Jallandhar for attending the Court at Jammu on 21.8.1996, but he could not reach Jammu as motor traffic on the National Highway became paralysed 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 Honble Sitting Judge of the Supreme Co





























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