The
Associated Cement Co. Ltd. Vs. Keshvanand [1997] INSC 938 (16 December 1997)
M.K.
MUKHERJEE, K.T. THOMAS
ACT:
HEADNOTE:
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
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 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 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 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 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 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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