TMI Blog2008 (11) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Small Industries Corporation Limited ( NSIC for short) the appellant herein, is a government company within the meaning of that expression under section 617 of the Companies Act, 1956. Its object is to extend financial and other assistance to small scale industries. The appellant lodged a complaint in the Court of the Metropolitan Magistrate, Delhi, alleging that the second respondent company had issued a cheque drawn in favour of the appellant, towards discharge of its liability, and the said cheque was dishonoured when presented for payment. The appellant therefore prayed for summoning and punishing the second respondent and its Directors (respondents 3 and 4). 3. On 4.2.2002, the learned Magistrate took cognizance and summoned the accused. He did not examine the complainant and its witnesses, under section 200 of the Code. He recorded the following reasons in that behalf : Complaint has been filed by a public servant in discharge of his public duties. Hence his examination is dispensed with. I have perused the record and considered the submission. I have also perused the original documents also. I consider that prima facie case under Sections 138/142 of Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant and the witnesses, on taking cognizance. It is therefore contended that a complaint by a government company represented by its officer who is a public servant, should be treated as complaint by a public servant. 5. On the other hand, the second respondent submitted that the wording of clause (a) of the proviso to section 200 of the Code made it clear that the Magistrate was not required to examine the complainant and the witnesses only where the complaint was made in writing by : (a) a public servant acting or purporting to act in discharge of his official duties; and (b) a court. The second respondent contended that if the intention was to exempt such examination even where the complainant was a government company or statutory corporation, clause (a) would have read : if a public servant acting or purporting to act in the discharge of his official duties, or a court, statutory corporation or Government company, has made the complaint instead of if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint . It is argued that the use of the words public servant acting or purporting to act in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the de facto complainant and he being public servant, the exemption was available. Legal provisions: 7. Section 138 of the Negotiable instruments Act (for short NI Act ) provides that dishonour of a cheque for insufficiency of funds in the bank account etc., is an offence punishable with imprisonment for a term which may be extended to two years or with fine which may extend to twice the amount of the cheque or with both. Section 142 of the NI Act provides that notwithstanding anything contained in the Code, no court shall take cognizance of any offence punishable under section 138 except upon a complaint in writing made by the Payee (or where it has been endorsed in favour of another, the holder in due course) of the cheque. 8. Section 190 of the Code enumerates the various modes of taking cognizance of offences by Magistrates. It provides for taking cognizance upon receiving a complaint of facts which constitutes such offence. Section 200 of the Code relates to examination of complainant. Relevant portion of which reads as under : 200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , for and on behalf of his employer, namely, the government company/statutory corporation. Any complaint by a public servant (if he happens to be an employee of a government company) acting or purporting to act in the discharge of his official duties, can only be in regard to the transactions or affairs of the employer company. When an offence is committed in regard to a transaction of the Government company, it will be illogical to say that a complaint regarding such offence, if made by an employee acting for and on behalf of the company will have the benefit of exemption under clause(a) of the proviso to section 200 of the Code, but a complaint in regard to very same offence, if made in the name of the company represented by the said employee, will not have the benefit of such exemption. The contention of the second respondent, if accepted, would mean that a complaint by The Development Officer, NSIC as the complainant can avail the benefit of exemption, the same complaint by NSIC represented by its Development Officer as complainant will not have the benefit of exemption. Such an absurd distinction is clearly to be avoided. 10. The term complainant is not defined under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant. An incorporeal body can obviously neither give evidence nor sign the deposition. If literal interpretation is applied, it would lead to an impossibility as an incorporeal body is incapable of being examined. In the circumstances, a harmonious and purposive interpretation of section 142 of NI Act and section 200 of the Code becomes necessary. Section 142 only requires that the complaint should be in the name of the payee. Where the complainant is a company, who will represent the company and how the company will be represented in such proceedings, is not governed by the Code but by the relevant law relating to companies. Section 200 of the Code mandatorily requires an examination of the complainant; and where the complainant is an incorporeal body, evidently only an employee or representative can be examined on its behalf. As a result, the company becomes a de jure complainant and its employee or other representative, representing it in the criminal proceedings, becomes the de facto complainant. Thus in every complaint, where the complainant is an incorporeal body, there is a complainant -- de jure, and a complainant -- de facto. Clause (a) of the proviso to section 200 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r words, when the complainant is 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. (emphasis supplied) In Municipal Corporation of Delhi vs. Jagdish Lal [1969 (3) SCC 389], the facts were that the Delhi Municipal Corporation had by a resolution authorized the Municipal Prosecutor to launch a prosecution under section 20 of the Prevention of Food Adulteration Act. Accordingly, one S.S. Mathur, the Municipal Prosecutor, filed a complaint against the respondent. The learned Magistrate acquitted the respondent. Section 417 of the old Code provided that where an order of acquittal was passed in any case instituted upon complaint by the High Court granting special leave to appeal from the order of acquittal on an application made to it by the complainant, the complainant may present an appeal to the High Court. The Delhi Municipal Corporation made an application to the High Court for special leave under section 417 against the order of acquittal. The application was granted. When the appeal came up for hearing, the respondent raised a preliminary objection that as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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