Galada Finance Limited v. M/s. Pukraj Jain & Sons

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23.11.2011Coram:THE HONOURABLE MR.JUSTICE ARUNA JAGADEESANCrl.A.Nos.586 & 587 of 2011Galada Finance LimitedRep. by Mr.Om Prakash Sadhu,No.11, Periyanaickam Street,Sowcarpet,Chennai-600 079. .. Appellant/Complainant in both the appealsvs.1.M/s.Pukraj Jain & Sons, No.53, Kalathi Pillai Road, Sowcarpet, Chennai-600 079. .. Respondent/Accused in Crl.A.No.586 of 20112.Pukraj Jain .. 2nd Respondent in Crl.A.586/2011and Respondent in Crl.A.586/2011/Accused in both the appealsCommon Prayer: Criminal Appeal is filed under Section 378(4) ofCriminal Procedure Code, against the orders passed in S.T.C.No.1389of 2007 and S.T.C.No.1388 of 2007 dated 23.12.2009 respectively, onthe file of the X Small Causes/Special Metropolitan MagistrateCourt, Chennai.For Appellant : Mr.V.VijayakumarFor Respondents : No Appearance C O M M ON J U D G M E N TThe appellant herein is the complainant in S.T.C.No.1389 of2007 and S.T.C.No.1388 of 2007 dated 23.12.2009 respectively, onthe file of the X Small Causes/Special Metropolitan MagistrateCourt, Chennai.2.These appeals emanate from the criminal complaints filedunder Section 138 of the Negotiable Instruments Act against therespondent(s). Before the lower court, parties were summoned. The https://hcservices.ecourts.gov.in/hcservices/ learned X Small Causes/Special Metropolitan Magistrate, Chennai,dismissed the complaints, acquitting the accused under Section 256of Cr.P.C., for non appearance of the complainant.3.The respondent has been served privately but inspite ofservice, the respondent did not appear either in person or throughcounsel.4.The learned counsel for the appellant would submit thatoriginally the case was pending before the VIII MetropolitanMagistrate Court and the same was transferred to the X SmallCauses/Special Metropolitan Magistrate Court for disposal. He wouldsubmit that the complainant appeared before the court afterissuance of notice and he had filed the process application forfresh summons to the accused on 20.12.2007. He would submit thaton 15.06.2009 i.e., after 18 months, the respondent(s)/accused hasappeared before the court and thereafter the case was adjourned onseveral hearings and on all those hearings, the absence of thecomplainant as well as the accused was condoned on the petitionbeing filed by the respective parties. 5.According to the learned counsel for theappellant/complainant that one Ravi who has filed the complaint andwhose statement was taken on oath at the first instance has leftthe office and now the complainant's firm is represented by one OmPrakash Sadhu. The said Om Prakash Sadhu appeared before the courton the date of hearing but the learned Presiding Officer insistedfor the appearance of the said Ravi who has originally filed thecomplaint. As he had left the firm, he could not appear andrepresent the firm and therefore, the case was adjourned to23.12.2009 for the appearance of Ravi. Even on that day, the firmwas represented by Om Prakash Sadhu but however, the learnedPresiding Officer ignored his presence and passed the order statingthat the complainant has not appeared before the court deliberatelyand there was no representation on behalf of the complainant anddismissed the complaint and thus acquitted the accused. 6.The learned counsel for the appellant would further submitthat the learned Presiding Officer dismissed the complaintmechanically without looking into the above position and otheraspects of the case. He would rely upon the decision of the Hon'bleSupreme Court reported in M/s.M.M.T.C.Ltd. & another Vs. M/s.MedchlChemicals and Pharma (P) Ltd and another [2002 Cri. L.J. 266(1)]wherein the Hon'ble Supreme Court referring to the decisionreported in Associated Cement Co. Ltd., Vs. Keshvanand (1998 (1)SCC 687 has observed that no Magistrate shall insist that theparticular person whose statement was taken on oath at the firstinstance, alone can continue to represent the company till the end https://hcservices.ecourts.gov.in/hcservices/ of the proceedings. It has further observed that it is open to thecomplainant company to seek permission of the court for sending anyother person to represent the company in the court which is statedas follows:- "In the case of Associated Cement Co. Ltd.,Vs. Keshvanand reported in 1998 (1) SCC 687, ithas been held by this Court that the complainanthas to be a corporeal person who is capable ofmaking a physical appearance in the court. It hasbeen held that if a complaint is made in the nameof a incorporeal person (like a company orcorporation) it is necessary that a natural personrepresents such juristic person in the court. Itis held that the court looks upon the naturalperson to be the complainant for all practicalpurposes. It is held that when the complainant isa body corporate it is the de jure complainant,and it must necessarily associate a human being asde-facto complaint to represent the former incourt proceedings. It has further been held thatno Magistrate shall insist that the particularperson whose statement was taken oath at the firstinstance, alone can continue to represent thecompany till the end of the proceedings. It hasbeen held that there may be occasions whendifferent persons can represent the company. Ithas been held that there may be occasions whendifferent persons can represent the company. Ithas been held that it is open to the de jurecomplainant company to seek permission of thecourt for sending any other person to representthe company in the court. Thus, even presuming,that initially there was no authority, still theCompany can, at any stage, rectify that defect.At a subsequent stage the Company can send aperson who is competent to represent the company."7.Heard the submissions made by the learned counsel for theappellant and perused the impugned order passed by the learnedMagistrate.8.Considering the facts and circumstances of the case and inview of the decision of the Hon'ble Supreme Court cited supra, thisCourt is of the view that the order passed by the learnedMagistrate is not sustainable. A bare reading of the Section 256of Cr.P.C., itself obviously reveals that in the prosecution case,nothing was required to be done by the complainant, especially whenthe petitioner was duly represented by the Advocate, then it was https://hcservices.ecourts.gov.in/hcservices/ imperative upon the Magistrate to form his opinion by taking careof the matter as to whether it was appropriate to dismiss thecomplaint.9.It is well settled by the Hon'ble Supreme Court inAssociated Cement Co. Ltd., Vs. Keshvanand [AIR 1998 SC 596] thattwo constraints are imposed on the court for exercising the powerunder Section 256 of Cr.P.C. First is, if the court thinks that ina situation it is proper to adjourn the hearing, then theMagistrate shall not acquit the accused. Second is, when theMagistrate considers that personal attendance of the complainant isnot necessary on that day, the Magistrate has the power to dispensewith the attendance and proceed with the case. If the situationdoes not justify the case being adjourned, the court is free todismiss the complaint and acquit the accused. But if the presenceof the complainant on that day was quite unnecessary, thenresorting to the step of axing down the complaint may not be aproper exercise of the power envisaged in the section. Thediscretion must therefore, be exercised judicially and fairlywithout impairing the cause of administrative of criminal justice.10.The real test in such like matter is always good faith andit would necessarily imply as to whether the complainant was absentfor any good reason or not. There was nothing to indicate any lackof good faith or due diligence on the part of the complainant toprosecute the complaint. 11.If the parameters of the above dictum of law as held by theHon'ble Supreme Court is applied to this case, the impugned orderpassed by the learned Magistrate is ex-facie illegal and notsustainable as there was nothing to indicate that there is lack ofgood faith or due diligence to prosecute the complaint. Theprinciples of natural justice requires the court to giveopportunity to the parties though they failed to use suchopportunity at times and the party having a fair case should notsuffer because of his absence.In the result, the Criminal Appeals are allowed and the orderspassed in S.T.C.No.1389 of 2007 and S.T.C.No.1388 of 2007 dated23.12.2009 respectively, on the file of the X Small Causes/SpecialMetropolitan Magistrate Court, Chennai is hereby set aside. Thecomplainant is directed to appear before the trial court within aperiod of three weeks from the date of receipt of a copy of this https://hcservices.ecourts.gov.in/hcservices/ order and the learned trial judge is directed to revive thecomplaints in question and proceed with the same in accordance withlaw.Sd/-Asst. Registrar/true copy/Sub Asst. Registrar.DPTo1.The X Small Causes /Special Metropolitan Magistrate Court, Chennai.2.The Public Prosecutor, High Court, Madras.2 ccs To Mr.V.Vijayakumar, Advocate Sr 71656, 71657Crl.A.Nos.586 & 587 of 2011ev[co]gp/13.12