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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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