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Judgment
R. Basant, J.—The petitioners face indictment in two separate prosecutions, both under the Companies Act and both filed by the same complainant, i.e. the Assistant Registrar of Companies, Kerala. The prosecutions relate to failure/omission to submit the balance sheet and annual returns. The complainant was not examined as a witness. On his behalf, a witness was examined as PW1. It is the case of the accused that he is not in possession of the original documents and they are with the Kerala Financial Corporation, which has taken over the company. When PW1 was examined, the complainant wanted PW1 to be confronted with certain documents. PW1 expressed his ignorance and inability to s peak about those documents. In these circumstances, according to the petitioners, they were compelled to request the court to get the complainant for cross-examination so that they could have confronted PW1 with the copies of the documents which are available with them. The learned Magistrate did not grant them requisite permission by separate orders, which are impugned in these petitions.
The learned Counsel for the petitioners submits that if an opportunity were not granted to the petitioners to cross-examine the complainant and to confront him with the relevant documents, copies of which alone are available with the petitioners that will lead to failure of justice. The complainant, to whom those documents are addressed, is unlikely to deny receipt of those documents, it is submitted. It is in this context that the petitioners want the complainant himself to be made available for cross-examination. I am satisfied that in the given facts and circumstances this is an eminently fit case where powers u/s 311, Code of Criminal Procedure, 1973, must have been invoked to make the complainant available to the accused for cross-examination.
The learned Counsel for the respondent places reliance on Section 621(1A) of the Companies Act, which stipulates that personal attendance of the complainant need not ordinarily be insisted. The said section cautiously provides for the option of the court in an appropriate case to insist on such personal attendance in the course of the trial. The said provision cannot also hence justify the impugned orders.
These Crl MCs are accordingly allowed. The impugned orders are set aside. The learned Magistrate shall direct the complainant to appear before the learned Magistrate and give the petitioners an opportunity to cross-examine the complainant and to confront him with the relevant documents.