Full Judgment Text
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PETITIONER:
THE ASSOCIATED CEMENT CO. LTD.
Vs.
RESPONDENT:
KESHVANAND
DATE OF JUDGMENT: 16/12/1997
BENCH:
M.K. MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
JUDGMENT:
THE 16TH DAY OF DECEMBER, 1997
Present:
Hon’ble Mr. Justice M.K. Mukherjee
Hon’ble Mr. Justice K.T. Thomas
Raju Ramachandran, Sr. Adv., Sudhanshu Tripathi, U.A. Rana,
Ms. Arshi Suhail, Advs. with him for the appellant
M.L. Bhat, Sr. Adv., (Prakash Padiau,) Adv. for Ms. Purnima
Bhat KAK, Adv. with him for the Respondent
J U D G M E N T
The following Judgment of the Court was delivered:
THOMAS, J.
Leave granted
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.
The complaint was based on a cheque issued by the
respondent towards amounts allegedly due form 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 a attorney of the company. Learned magistrate
took cognizance of the offence, and after examining Puneet
Aggarwal on oath, issued summons to 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
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under Section 247 of the Code of Criminal Procedure, 1998
(Which is applicable to the State of Jammu & Kashmir even
now. it will hereinafter be referred to as ’the old Code’).
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.
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 the 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.
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 exploiting the name of the
Hon’ble Judge without his
knowledge."
We could not fathom or even grasp the reason for making
such a statement in the counter affidavit so we asked Shri
M.L. Bhat, learned senior counsel (who appeared for the
respondent) as to the relevance or the raison d’etre for the
said averment. Shri M.L. Bhat than submitted that he too
concedes that the said averment is quite irrelevant for this
case and offered to withdrew it. Later an application has
been filed for deleting that portion from the affidavit.
While we allow that application to deleted the said portion
we cannot but express our displeasure over and disapproval
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of the conduct in scribbling down sch irrelevant and
mischievous imputation in an affidavit filed in this Court,
particularly the unwholesome attempt to drag in a judge of
this Court. It is sad that when such an unsavory statement
was scribed into an affidavit the idea of deleting it did
not occur to him at least when the affidavit was
authenticated by the advocate. Indeed, he decided to delete
it only when we asked the senior counsel about its
relevance. We do not wish to say anything more about it.
Learned single judge of the High Court apprised himself
of the width of the appellate powers of the High Court as
follows, in the impugned judgment.
" In my opinion our law of
precedent has developed out of this
policy of the statutes. This is how
time and again it has been held
that Appellate/Revisional Courts
should not ordinarily disturb the
finding of the trial courts, if a
different view also could be taken
on same facts. The Court’s concert
only will be, as to whether or not
the order impugned is fraught with
any illegality or impropriety."
It appears that learned single judge has equated
appellate powers with reversional powers, and that the core
difference between an appeal and a revision has been
overlooked. 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 untrammeled by any
finding entered by the trial court. Reversional powers on
the other hand belong to supervisory jurisdiction of a
superior court. While exercising reversional 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 is 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.
In State of Kerala vs. K.M. Charia Abdullah & Co. (AIR
1965 SC 1585) this Court has highlighted the difference
between the two jurisdictions in the following words:
"There is an essential distinction
between an appeal and a revision.
The distinction is based on the
differences implicit in the said
two expressions. An appeal is a
continuation of the proceedings; in
effect the entire proceedings are
before the appellate authority and
it has power to review the evidence
subject to the statutory
limitations prescribed. But in the
case of a revision, whatever powers
the reversional authority may or
may not have, it has not the power
to review the evidence unless the
statute expressly confers on it
that power."
In Shankar Ramchandra Abhyankar vs. Krishnaji
Dattatraya Bapat (AIR 1970 SC 1) this Court has observed
that the right of appeal is one of entering a superior court
and invoking its aid and interposition to reefers the error
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of the court below.
In this case when the High Court considered that its
only concern was to check whether the order of the
magistrate "is fraught with any illegality or impropriety",
the High Court has narrowed down its angle while dealing
with an appeal.
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 dress 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.
Section 247 of the old Code reads
thus:
" If the summons has been issued on
complaint, and upon the day
appointed of the appearance of the
accused, or any day subsequent
thereto to which the hearing may be
adjourned, the complainant does not
appear, the Magistrate shall,
notwithstanding anything
hereinbefore contained, acquit the
accused, unless for some reason he
thinks proper to adjourn the
hearing of the case to some other
day:
Provided that where the Magistrate
is of opinion that the personal
attendance of the complainant is
not necessary, the magistrate may
dispense with his attendance and
proceed with the case."
Section 256 of the Code of Criminal Procedure, 1973(
for short ’the new Code’) is the corresponding provision to
Section 247 of the old Code. The main body of both
provisions is identically worded, but there is a slight
difference between the provisos under the two sections. The
proviso to section 230 of the new code is reproduced here:
Provided that where the complainant
is represented by a pleader or by
the officer conducting the
prosecution or where the magistrate
is of Opinion that the personal
attendance of the complainant is
not necessary, the Magistrate may
dispense with his attendance and
proceed with the case."
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 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
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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 progress of the case and also whether the situation
does not justify the case being adjoined 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.
When considering the situation of this case as on 24-8-
1996, from the facts narrated above, we have no manner of
doubt that the magistrate should not have resorted to the
axing process, particularly since the complainant was
already examined as a witness in the case besides examining
yet another witness for the prosecution.
Appellant has adopted an alternative contention that as
the complainant in this case is a company which is an
incorporeal entity there is no question of the complainant
being absent in the court on any day fixed for hearing and
hence Section 247 of the old Code (or Section 256 of the new
code) was inapplicable. Learned single judge repelled the
said alternative contention when it was raised in the High
Court. It is true that the complainant M/s. Associated
Cement Company Ltd. is not a natural person. We have no
doubt that a complaint can be filed in the name of a
juristic person because it is also a person in the eye of
law. But then, who would be the complainant in the criminal
court for certain practical purposes.
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". We have,
therefore, to ascertain whether and company or association
of persons or body corporate can be a complainant as per the
new Code as for all practical purposes, looking at different
contexts envisaged therein,
Chapter XV of the new Code contains provisions for
lodging complaints with magistrates. Section 200 as the
starting provision of that chapter enjoins on the
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magistrate, wh o takes cognizance of an offence on
complaint, to examine the complainant on oath. Such
examination is mandatory as can be discerned from the words
"shall examine on oath the complainant..." The magistrate is
further required to reduce the substance of such examination
to writing and it "shall be signed by the Complaint" . The
magistrate is further required to reduce the substance of
such examination to writing and it "shall be signed by the
Complaint. Under Section 203 the magistrate is to dismiss
the complaint if he is of opinion that there is no
sufficient ground for proceeding after considering the said
statement on oath. Such examination of the complaint on oath
can be dispensed with only under two situations, one if the
complaint was filed by a public servant, acting or
purporting to act in the discharge of his official duties
and the other when a court has made the complaint. Except
under the above understandable situations the complainant
has to make his physical presence for being examined by the
magistrate. Section 256 or Section 249 of the new Code
clothes the magistrate with jurisdiction to dismiss the
company when the complainant is absent, which means his
physical absence.
The above 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 component to 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.
As the corresponding provisions in the old code are the
same for all practical purposes, the legal position
discussed above is applicable to the complaint filed under
the old code as well.
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 e 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 for, the company’s service 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
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 justice person.
However, as we have taken the view that the magistrate
should not have acquitted the respondent under Section 247
of the old Code on the facts of this case we allow the
appeal and set aside the order of acquittal as well as the
impugned judgment of the High Court. The prosecution would
now proceed from the stage where it reached before the order
of acquittal was passed.
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