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Judgment
B. Rajendran, J.—The petitioner, who is arrayed as an accused in C.C. No. 294 of 2011 filed by the respondent herein, has come forward
with this Criminal Revision Case questioning the correctness of the order dated 21.08.2012 passed by the learned VII Metropolitan Magistrate,
George Town, Chennai in MP No. 653 of 2012 in C.C. No. 294 of 2011, by which the petition filed by the respondent to substitute the name of
the complainant, who originally filed the complaint, as one Srinivasan instead of Sukumar was allowed. The respondent has filed the above C.C.
No. 294 of 2011 before the learned VII Metropolitan Magistrate, George Town, Chennai against the petitioner herein u/s 138 of the Negotiable
Instruments Act. According to the respondent, the petitioner had received goods worth Rs. 2,00,000/- from them on credit basis. However,
inspite of receipt of reminders from the respondent, the petitioner has not paid the outstanding balance amount. Ultimately, after repeated demands
made by the respondent, the petitioner has issued the cheque dated 14.10.2010 for a sum of Rs. 2,00,000/- and on presentation of the cheque, it
was dishonoured for the reason ''payment stopped by the drawer on 21.10.2010."" After issuing a statutory notice on 12.10.2010, which was also
acknowledged by the petitioner on 18.11.2010, the respondent instituted the above calendar case before the Court below.
Pending C.C. No. 294 of 2011, the respondent/complainant filed a petition in M.P. No. 653 of 2012 praying the court below to substitute the
name of Sukumar, who instituted the above complaint on behalf of the respondent, with the name of Mr. Srinivasan inasmuch as the said Mr.
Sukumar is suffering from illness and due to his deteriorating health, he could not attend to the Court proceedings. The petition was opposed by the
petitioner stating that the right of the petitioner to cross-examine the said Sukumar, who originally instituted the complaint, has been taken away
and it amounts to depriving the petitioner of his legal right. The court below, after hearing both sides allowed the said petition by holding that by
substituting the name of the complainant, the right of the petitioner will not in any be jeopardised and it is always open to the petitioner to examine
and cross-examine the person who is now sought to be substituted as representative to prosecute the complaint on behalf of the respondent.
The learned senior counsel appearing for the petitioner would contend that the court below erred in allowing the petition to substitute the name
of the complainant who originally instituted the complaint with that of another person especially when the sworn statement of the person, who
originally instituted the complaint, was recorded and based on such statement, the court below took cognisance of the complaint. Further the said
person who originally instituted the complaint was examined in chief and in view of the allowing of the instant petition, the right of the petitioner to
cross-examine him has been taken away. According to the learned senior counsel for the petitioner, such right in favour of the accused is a legal
and valuable right and therefore, the court below ought not to have allowed the petition for substitution. It is further contended by the learned
senior counsel for the petitioner that the court below, by allowing the petition for substitution, had altered and modified the very nature and
character of the complaint In support of his contention, the learned Senior counsel for the petitioner relied on the decisions reported in (i) N.
Kannadasan Vs. Ajoy Khose and Others, (ii) Pratap Singh Vs. State of Jharkhand and Another, (iii) Ajoy Kumar Ghose Vs. State of Jharkhand
and Another, and Smt. Selvi and Others Vs. State of Karnataka, for the proposition that right of the accused to cross-examine the person who has
deposed against him is a fundamental and legal right guaranteed under the Constitution of India and it cannot be taken away to the detriment of the
accused and it is the mandatory duty of the Court to ensure that all procedural safeguards have been complied with during the course of a criminal
trial. By relying on the aforesaid decisions, the learned senior counsel for the petitioner prayed for allowing this Criminal Revision case by setting
aside the order passed by the Court below.
Per contra, the learned counsel for the respondent would contend that the authorised representative of the petitioner company, who originally
instituted the complaint on behalf of the respondent, fell sick, not in a position to attend to the court proceedings as he suffered from deteriorating
health. Under those circumstances, the respondent company has filed the petition for substitution to substitute his name with that of another
representative of the respondent company to prosecute the complaint on behalf of the respondent company. By filing the present petition, the
respondent company only wanted to ensure the continuance of the legal proceedings against the petitioner.
Even though the sworn statement of the person, who originally instituted the complaint was recorded, the court below, in the impugned order, has
categorically held that the right of the accused to examine or cross-examine the person who is now sought to be substituted will not in any way
taken away and that the petitioner/accused can adduce fresh evidence upon substitution of the new representative of the respondent company.
Therefore, sufficient safeguards have been made in the order passed by the court below to ensure the right of the petitioner/accused to cross-
examine the complainant side witnesses and therefore the apprehension raised by the petitioner is unfounded. Therefore, the order passed by the
court below is valid and in accordance with law and it need not be interfered with. In support of his defence, the learned counsel for the
respondent relied on the decision, which was also relied on by the court below in the impugned order, reported in Associated Cement Co. Ltd.
Vs. Keshvanand, to contend 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 and there may be occasions when different person can represent the
company. In such eventuality, it is open to the complainant to seek permission of the Court for substituting another person to represent the
complainant in the Court.
I heard the counsel for both sides and perused the materials placed on record. The learned senior counsel appearing for the petitioner would
contend that the respondent is a company represented by an authorised agent. Originally, one Sukumar, an authorised agent of the respondent
company had filed the complaint u/s 138 of the Negotiable Instruments Act. The said Sukumar was also examined on oath and based on his sworn
statement, the court below had taken cognisance of the complaint and issued summons to the petitioner. While so, during the pendency of the
proceedings, the court below allowed the petition for substitution filed by the respondent by which the petitioner was deprived of cross-examining
the erstwhile agent of the respondent company. Such right of the petitioner being a fundamental right, the court below ought not to have entertained
the petition for substitution.
A perusal of the records would reveal that originally one Sukumar has instituted the complaint u/s 138 of the Negotiable Instruments Act on
behalf of the respondent company and he was also examined on oath. During the pendency of the Calendar Case, the respondent company has
filed the present petition in M.P. No. 653 of 2012 contending that Mr. Sukumar fell ill and he is not in a position to attend the court proceedings
and to prosecute the respondent company. Therefore, the respondent company sought the permission of the court to substitute the erstwhile
authorised agent of the respondent company with one Srinivasan so as to enable him to continue the proceedings initiated on behalf of the
respondent company.
A perusal of the order, which is impugned in this Criminal Revision Case, passed by the Court below, would indicate that the court below had
categorically secured and safeguarded the interest of the petitioner to examine and cross-examine the person who is sought to be substituted
interalia making the evidence recorded earlier non-existence. Thus, it is clear that the evidence of Mr. Sukumar, erstwhile authorised agent of the
respondent company already recorded by the court below goes automatically inasmuch as the said Sukumar is no longer available for cross-
examination. Under those circumstances, as rightly pointed out by the court below, the person who is sought to be substituted will be examined
and the petitioner will be given an opportunity to cross-examine him at the appropriate time. Thus, the apprehension expressed by the petitioner
that by the impugned order the valuable right of the petitioner to cross-examine the complainant side witness was taken away is unfounded.
In the decision of the Honourable Supreme Court reported in Associated Cement Co. Ltd. Vs. Keshvanand, it was held that no Magistrate shall
insist that a 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 and there may be occasions when different person can represent the company. In such eventuality, it is open to the complainant to
seek permission of the Court for substituting another person to represent the complainant in the Court. In the light of the above decision, the
respondent company only sought for permission of the court below which was rightly granted by the Court below. In para Nos. 23, 24 and 25 of
the said judgment, it was held as follows:-
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 complainant is a body corporate, it is the de jure complainant, and it must necessarily
associate a human being as the de facto complainant to represent the former in a 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 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 may be occasion when a different person can
represent the company e.g., the particular person who represents the company at the first instance may either retire from the company''s services
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 such eventuality, it is open to the de jure complainant
company to seek the permission of the Court for sending any other person to represent the company in the Court. At any rate, absence of the
complainant envisaged in Section 249 or Section 256 of the new Code would include absence of the corporeal person representing the
incorporeal complainant.
The facts of the present case on hand is in para materia with the decision rendered by the Honourable Supreme Court inasmuch as the
respondent only sought permission of the court below to substitute the person who originally instituted the complaint with that of another person
citing health reasons by specifically reserving the right of the petitioner to cross-examine the new person who is sought to be substituted.
The learned senior counsel appearing for the petitioner relied on the decision of the Honourable Supreme Court reported in Smt. Selvi and
Others Vs. State of Karnataka, to contend that procedural formalities should not be diluted. In para No. 111, the Honourable Supreme Court held
that ""we must recognise the infusion of constitutional values in all branches of law of evidence........... "" No doubt it is true that the courts are
expected to recognise the constitutional values and only in that direction, in the present case, the Court below reserved the right of the petitioner to
cross-examine the person who is sought to be substituted thereby protecting and safeguarding such right of the petitioner.
The learned Senior counsel also relied on the decision reported in N. Kannadasan Vs. Ajoy Khose and Others, and contended that right of the
accused person to recall the witness or to cross-examine a prosecution witnesses is a legal and valuable right. As stated supra, the right of the
petitioner is fully safeguarded and protected and therefore the facts involved in the above decision cannot be made applicable to the facts of this
case.
The learned Senior counsel further relied on the decision reported in Pratap Singh Vs. State of Jharkhand and Another, wherein in para No.
64 it was held that Part III of our Constitution protects substantive as well as procedural rights. The implications which arise therefrom must
effectively be protected by the Judiciary. It is true that our Constitution guarantees certain rights, which are fundamental, to the person who is
arrayed as an accused in a criminal proceedings and the procedural formalities relating to adherence of such constitutional rights cannot be diluted.
In the present case, there is nothing on record to show that by the impugned order, the court below, in any way taken away such valuable rights of
the petitioner who is facing a criminal trial and therefore this decision also cannot be made applicable to the facts of the present case.
The learned senior counsel for the petitioner also relied on the decision reported in Ajoy Kumar Ghose Vs. State of Jharkhand and Another, to
contend that by virtue of the impugned order, the petitioner''s valuable right to cross-examine the complainant side witness is lost. The learned
senior counsel relied on para No. 53 of the decision wherein it was held that ""............ it is clear that the opportunity to the accused to cross-
examine the witnesses is lost as the trial court has straightaway proceeded to frame the charge. In that view, we would have to quash the order,
framing the charge. It is accordingly quashed.......... In the present case, charge has not been framed and it is needless to point out that before
framing the charge, the petitioner will be given all fair opportunity to exhaust his defence. Therefore the argument of the learned senior counsel for
the petitioner cannot be accepted. Moreover, in the impugned order passed by the Court below, there are in-built provisions made to ensure that
the petitioner is given all fair opportunities to examine and cross-examine the complainant side witnesses. In the light of the above discussion, I do
not find any reason to interfere with the order passed by the Court below. Accordingly, the Criminal Revision Case is dismissed. Consequently,
connected MP No. 1 of 2012 is closed.