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2008(8) Supreme 629
SUPREME COURT OF INDIA
R.V. Raveendran and Dalveer Bhandari, JJ.
National Small Industries Corporation Ltd. — Appellant (s)
versus
State (NCT of Delhi) & Ors. — Respondent (s)
Criminal Appeal No. 1802 of 2008
(Arising out of SLP(Crl.) No. 2009 of 2007)
With
Crl. Appeal No.1803-1821/2008 (@ SLP(Crl.) Nos.7276-7294/2007)
Decided on : 17-11-2008
(b) Code of Criminal Procedure, 1973 – Section 200 – Exemption to Public servants –It is illogical to say that a complaint if made by an employee acting for and on behalf of the company will have the benefit of exemption under clause(a) of the proviso to section 200 of the Code, but a complaint in regard to very same offence, if made in the name of the company represented by the said employee, will not have the benefit of such exemption. (Paras 9 and 10)
(1973)3 SCC 753 – Relied upon.
AIR 1963 SC 1811 – Distinguished impliedly.
(c) Negotiable Instruments Act, 1881 – Section 142 – If the payee is a company, necessarily the complaint should be filed in the name of the company – A company can be represented by an employee or even a non-employee so authorized and empowered. (Para 10)
(d) Code of Criminal Procedure, 1973 – Section 200 r/w section 142, N.I. Act, 1881 – Where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is the de facto complainant – In signing and presenting the complaint, he acts in the discharge of his official duties – Therefore, in such cases, the exemption under clause (a) of the first proviso to section 200 of the Code will be available. (Para 11)
(1998)1 SCC 687; (1969)3 SCC 389 – Relied upon.
(e) Code of Criminal Procedure, 1973 – Section 200 r/w section 142, N.I. Act, 1881 – Where an incorporeal body is the payee and the employee who represents such incorporeal body in the complaint is a public servant, he being the de facto complainant, clause (a) of the proviso to section 200 of the Code will be attracted – Consequently, the Magistrate need not examine the complainant and the witnesses. (Para 14)
Facts of the case :
1. 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).
2. The learned Magistrate took cognizance and summoned the accused. He did not examine the complainant and its witnesses, under section 200 of the Cr. P.C.
3. Respondents 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.
Finding of the Court :
Where a complaint in regard to dishonour of a cheque is made by a Government company, represented by its officer who is a public servant, the exemption made under clause (a) of the proviso to section 200 of Code of Criminal Procedure, is available.
Result : Appeal allowed.
Key Points: - The appellant lodged a complaint on dishonour of a cheque by a government company represented by its officer who is a public servant; exemption under clause (a) to section 200 Cr.P.C. is invoked. (!) - A government company is not a ‘public servant’, but its employees can be public servants; exemption applicable when the complainant is a public servant acting in discharge of official duties or a court. (!) (!) - When the complainant is an incorporeal body (company) represented by an employee who is a public servant, the employee is the de facto complainant; exemption applies if the complainant is a public servant. (!) (!) - The NI Act requires the payee to be the complainant; for corporate payees, the company is the de jure complainant and must be represented by a human agent; the de facto complainant may be a public servant. (!) (!) - The court shall examine the complainant on oath unless the exemption applies; the exemption is triggered when the complainant is a public servant or when the complaint is made by a court. (!) (!) - The decision clarifies that where the incorporeal payee is represented by a public servant, the exemption under clause (a) is available, and the Magistrate need not examine the complainant and witnesses. (!) - The appeal results in restoring the summoning order, affirming exemption in such circumstances. (!)
JUDGMENT
R.V. Raveendran, J. —
Leave granted. Heard the counsel for the parties. The following question of law arises for consideration in these appeals : Where a complaint in regard to dishonour of a cheque is made by a Government company, represented by its officer who is a public servant, whether the exemption made under clause (a) of the proviso to section 200 of Code of Criminal Procedure, (‘Code’ for short) is available?
Crl. Appeal No.1802/2008 (@ SLP(Crl.) No.2009/2007)
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 out.”
Respondents 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.PC 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.C.”
Consequently, 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.
Contentions :
4. The appellant company submitted that being an incorporeal person, it acts through its officers. In the complaint lodged against respondents 2 to 4, it is represented by its Development Officer, who is a public servant, and he has signed the complaint on its behalf. The appellant contended that though the appellant was the de jure complainant, its Development Officer who represents it in the complaint was the de facto complainant; and when the complaint by a government company is signed and presented by its employee who is a public servant, it should be deemed to be a complaint by such public servant acting in the discharge of his official duties. Consequently, clause (a) of the proviso to section 200 of the Cod
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