Senthamarai v. G.K.Chenniappan & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.06.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.367 of 2006andCrl.M.P.No.385 of 2007Senthamarai ... Petitioner vs.1. G.K.Chenniappan2. M/s Giri Ram Finance and Leasing (P) Ltd., rep. by its Director R.Thangavelu Kalavamani, Modachur Village, Gobichettipalayam Taluk, Erode District.... Respondents Prayer: Petition filed under Sections 397 and 401 of Cr.P.C. againstthe order of the learned Judicial Magistrate No.1, Gobichettipalayam,in Crl.M.P.No.960 of 2005 in C.C.No.68 of 1999 dated 29.04.2005.For Petitioner : Mr.K.KumaraswamyFor R1 : Mr.V.Rajesh O R D E R Animadverting upon the order dated 29.04.2005, passed by thelearned Judicial Magistrate No.1, Gobichettipalayam, inCrl.M.P.No.960 of 2005 in C.C.No.68 of 1999, this Criminal Revisioncase is focussed.2. A summation and summarisation of the relevant facts whichare absolutely necessary and germane for the disposal of thisCriminal Revision case would run thus:The revision petitioner/accused No.2 Senthamarai in C.C.No.68of 1999, which was filed by Giri Ram Finance and Leasing (P) Ltdunder Section 138 of the Negotiable Instruments Act, files thisrevision on the main ground that the complaint was filed by the saidPrivate Limited Company represented by one of its Directors, namelyThangavelu, whereas during the pendency of the said C.C.No.68 of1999, Crl.M.P.No.960 of 2005 was filed for replacing Thangavelu withthe Managing Director, namely Chenniappan without any basis; the said https://hcservices.ecourts.gov.in/hcservices/ Thangavelu on behalf of the Private Limited Company received theamount in discharge of the claim in the complaint; if Thangavelu isleft out and in his place, Chenniappan is included, certainly thedefence of the accused would be prejudiced; without passing anyresolution for such replacement of the Director to represent thecomplainant Company, the said application Crl.M.P.No.960 of 2005 wasfiled and it was erroneously allowed by the Magistrate concerned.3. Heard both sides.4. The point for consideration is as to whether the lowerCourt wrongly allowed Crl.M.P.No.960 of 2005 without any sound reasonand without considering the probable prejudice that would be causedto the accused.5. The learned counsel for the revision petitioner wouldsubmit that during the pendency of the complaint which was focussedfor recovery of a total sum of Rs.7,00,000/- based on two cheques,one for Rs.2,00,000/- and another for Rs.5,00,000/- the accusedherein the revision petitioner parted with the amount in favour ofthe Company through Thangavelu who was representing the complainantCompany, but to the shock and surprise, without any sound ground, theCourt allowed one Chenniappan to step into the shoes of Thangavelu,who was ordered to be removed from the cause title.6. Whereas, the learned counsel for the complainant wouldinvite the attention of this Court appropriately and appositely tothe decision of the Hon'ble Apex Court reported in 1998 (1) SCC 687[ASSOCIATED CEMENT CO. LTD. VS. KESHVANAND] more specificallyparagraph 25 which runs hereunder:"Be that so, we suggest as a pragmaticproposition that no magistrate shall insist that theparticular person, whose statement was taken on oathat the first instance, alone can continue to representthe company till the end of the proceedings. Theremay be occasions when a different person can representthe company e.g. the particular persons who representsthe company at the first instance may either retirefrom the company's services or may otherwise cease toassociate therewith or he would be transferred to adistant place. In such cases it would be practicallydifficult for the company to continue to make the sameperson represent the company in the court. In anysuch eventuality it is open to the de jure complainantcompany to seek permission of the court for sendingany other person to represent the company in thecourt. At any rate, absence of the complainantenvisaged in Section 249 or Section 256 of the newCode would include absence of the corporeal personrepresenting the incorporeal complainant."and develop his argument to the effect that there is no compulsion orhard and fast rule warranting the Private Limited Company to retainone and the same person to represent the Company from the beginningtill the end of the criminal case; the Board of Directors in their https://hcservices.ecourts.gov.in/hcservices/ wisdom thought fit to pass the resolution dated 24.01.2005 to removeThangavelu and in his place appoint Chenniappan, the ManagingDirector to proceed with the complaint on the behalf of the Company;and the revision petitioner if at all is having a case of his own, itis for him to put forth his defence during trial.7. A bare perusal of the decision of the Hon'ble Apex Courtcited supra would display and demonstrate, exemplify and evince thatthe Private Limited Company which is a juristic person has got aright to prosecute the criminal case by having different persons atdifferent point of time to represent it, depending upon the facts andcircumstances; the accused is having no say in the matter and assuch, the lower Court correctly placing reliance on the resolutiondated 24.01.2005 allowed the application warranting no interferenceby this Court. Whereas, the learned counsel for the revisionpetitioner would submit that after the accused having parted with theentire amount by actually handing over in cash to Thangavelu, is leftin the lurch. I would like to clarify that in no way the accused isprejudiced if at all what the accused pleads is a reality. It is forhim during cross examination to put forth his case about the allegedpayment of the entire dues to Thangavelu. It appears that whenThangavelu was representing the Company, the said Thangavelu filedan application under Section 257 Cr.P.C. for compounding the offencefor withdrawal of the complaint. 8. I would like to make it clear that it is for the accusedto plead before the Magistrate for taking up the said application andit is for the Magistrate to consider it. 9. The learned counsel for the first respondent herein wouldsubmit that the said application filed by Thangavelu under Section257 Cr.P.C. was not even filed by the Advocate who appeared for thecomplainant Company. I am of the view that such defence he couldvery well put forth before the Magistrate in the event of theMagistrate venturing to consider the said application filed underSection 257 Cr.P.C. It is stated before me that the said applicationis not yet numbered. However, I make it clear that it is the boundenduty of the Magistrate to give a disposal to it either by returningthat application or by entertaining the application and enquiringinto it along with the main C.C. and passing orders and he is notjustified in simply keeping on file any unnumbered petition.With the above observation, this Criminal Revision Petitionis dismissed. Consequently, connected miscellaneous petition isclosed.GmsSd/Asst. Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. Judicial Magistrate No.1, Gobichettipalayam2. -do- Through The Cheif Judicical Magistrate, Erode District.+ 1 cc to Mr. A.K.Kumarasamy, advocate SR.23634.+ 1 cc to Mr. T. Murugamanikkam adovcate SR 23671.Crl.R.C.No.367 of 2006 VSV(CO)EU 24.7.2009.