Punjab-Haryana High Court
Jaspal Singh vs M/S Balwant Brothers Pvt. Ltd on 3 May, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Crl.Misc.No.M-35331 of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Misc.No.M-35331 of 2009
Date of decision : 3.5.2012
Jaspal Singh .......Petitioner
Vs.
M/s Balwant Brothers Pvt. Ltd. ....Respondent
....
CORAM : HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK **** Present :
Mr. G.S.Jagpal, Advocate for Mr.R.S.Bajaj, Advocate for the petitioner.
Mr.Ravi Kumar,Advocate for Mr. Punnet Sharma, Advocate for the respondent.
...
RAMESHWAR SINGH MALIK, J The instant Criminal Misc. Petition is directed against the order dated 17.8.2009 (Annexure P-5), whereby the application of the respondent moved under Section 311 of Code of Criminal Procedure, 1973 (for short `the Cr.P.C.') was allowed.
The short but twin important questions of law that arise for consideration of this court are : (i) What is the object and scope of Section 311 Cr.P. C. ? (ii) whether the learned JMIC, Jalandhar, has exceeded its jurisdiction while passing the impugned order allowing the application Crl.Misc.No.M-35331 of 2009 2 under Section 311 Cr.P.C., thereby permitting the respondent for re-
examining its authorised representative with a view to prove resolution dated 19.3.2004.
The facts of the case are hardly in dispute. However, briefly put, the relevant facts are that respondent filed its complaint under Section 138 of the Negotiable Instruments Act, (for short `NI Act') vide Annexure P-1. During the course of trial, an application under Section 311 Cr.P.C. was moved vide Annexure P-3 and notice thereof was issued by the learned trial court to the other side. Reply was filed vide Annexure P-4. After hearing both the parties and in view of the facts and circumstances of the case, the learned trial court was of the view that although the application was moved at a belated stage, yet it was necessary for just decision of the case to allow the application under Section 311 Cr.P.C. It was also observed that no prejudice was going to be caused to the other side, which was also compensated by way of costs. Thus, the application under Section 311 Cr.P.C., was allowed vide impugned order dated 17.8.2009 (Annexure P-5) .
Feeling aggrieved against the above said order, the petitioner has approached this court by way of instant petition. Crl.Misc.No.M-35331 of 2009 3
Learned counsel for the petitioner vehemently contended it is not the object and scope of Section 311 Cr.P.C., to allow the application even at the belated stage. He next contended that the learned trial court has exceeded its jurisdiction while passing the impugned order. Learned counsel for the petitioner concluded by submitting that since the complaint Annexure P-1 was filed way back in the year 2002, there could have no scope for authorising any officer or representative of the complainant company by way of resolution dated 19.3.2004, which was sought to be proved through the application under Section 311 Cr.P.C. Annexure P-3 . Thus, he prayed that the impugned order was liable to be set aside and the instant petition deserves to be allowed.
Per contra, learned counsel for the respondent, contended that the object and scope of Section 311 Cr.P.C. was wide enough to entertain, consider and allow the application at any stage of the trial. He further submitted that there was no illegality in the order passed by the learned trial court. The order deserves to be upheld and the present petition was liable to be dismissed being without any merit. Learned counsel, while concluding his arguments, submitted that it was permissible in law for the respondent company to rectify the formal defect, if any, at the initial stage Crl.Misc.No.M-35331 of 2009 4 of filing the complaint, only qua the authorisation given by the juristic person to the natural person. To buttress his contention, learned counsel for the respondent also relied upon the judgements of the Hon'ble Supreme Court in Mohanlal Shamji Soni Vs. Union of India and another, 1991 Crl.L.J. 1521, M/s M.M.T.C. Ltd., Vs. M/s Medchl Chemicals & Pharma (P) Ltd., 2002 (1) RCR (Crl.) 318 and The Associated Cement Co. Ltd. Vs. Keshvanand, 1998 (2) PLR 812.
I have heard learned counsel for the parties and with their able assistance have gone through the record of the case.
After giving my thoughtful consideration to the rival contentions raised and keeping in view the peculiar fact situation of the present case, this court is of the considered opinion that the present petition is wholly misconceived and bereft of any merit.
Since this court is called upon to consider the scope and object of Section 311 Cr.P.C., it would be appropriate to reproduce the same, which reads as under :-
"A power of Magistrate to order person to give specimen signatures or handwriting - If a Magistrate of the first class is satisfied that, for the purposes of any investigation Crl.Misc.No.M-35331 of 2009 5 or proceedings under this Code, it is expedient to direct any person, including an accused person, togive specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting:
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."
A plain reading of the language of Section 311 Cr.P.C., reproduced above, would show that the legislative intendment is to give wide powers to the courts so as to reach the truth by all lawful means with a view to arrive at a just decision for doing complete and substantial justice between the litigating parties. Thus, applying the golden rule of harmonious construction so as to achieve the laudable object of Section 311 Cr.P.C., I unhesitatingly hold that the court has been granted very wide powers by the legislature so as to enable the court to seek the Crl.Misc.No.M-35331 of 2009 6 evidence at any stage of the trial, which appears to the court to be essential for just decision of the case. However, it is also equally settled principle of law that whenever the powers are wide and discretionary, the same are to be exercised sparingly and with circumspection.
So far as the second question is concerned, this court feels no hesitation to conclude that in the given fact situation of the present case, the learned trial court has not exceeded its jurisdiction while passing the impugned order. I say so because the rules of procedure are the hand maids of justice, which are meant to be followed for advancing the cause of justice.
It needs no emphasis that as and when any complaint is made in the name of a incorporeal person like a Panchayat, Municipal Committee/Council, or a Company/Corporation, it would be imperative that a natural person represents such juristic person in the court. It goes without saying that either it is a Panchayat, Municipal Committee/Council or a Company/Corporation, it acts and speaks only through resolutions. Having said that, it is held that whenever any complaint is moved on behalf of a juristic person, it is always to be moved through a natural person.
Crl.Misc.No.M-35331 of 2009 7
It is the natural person who would be a de facto complainant for all practical purposes because the company being a body corporate will be only the de jure complainant. Even if for the sake of argument it is presumed, which is not otherwise admitted by the petitioner on merits, that although there was some defect at the initial stage,yet the company, at any stage, can rectify that defect. The court will not insist that who has initiated the proceedings as de-facto complainant on behalf of de jure complainant, that very natural person must continue to represent the company till the conclusion of the trial. The juristic person, will always be at liberty to change its representative to pursue the complaint on its behalf at different stages of the litigation. It is so in the very nature of things because the executive body of the de jure complainant may keep on changing. The view taken by this court finds support from the judgement of the Hon'ble Supreme Court in Associated Cement Co. Ltd. Vs. Keshvanand (supra) and M/s M.M.T.C. Ltd. Vs. M/s Medchl Chemicals & Pharma (P) Ltd. (supra).
Further, this court is of the considered opinion that let no litigating party be forced to go home back with this impression that it has not been granted due opportunity to prove its case because it is the duty of Crl.Misc.No.M-35331 of 2009 8 a court not only to do justice but also to ensure that justice is being done.
Salutary provisions of Section 311 Cr.P.C., when interpreted following the golden rule of harmonious interpretation, bring this court to the irresistible conclusion that the object and scope of Section 311 Cr.P.C., is very wide subject to only the inbuilt limitation of caution and circumspection. The object is to get at the truth so as to reach at a just decision.
Reverting to the facts of the present case, no manifest illegality has been found in the order passed by the learned trial court. The learned Magistrate has observed that it was necessary for just decision of the case to allow the application under Section 311 Cr.P.C. It has also been rightly observed that no prejudice would be caused to the other side because he would have an opportunity to cross examine the witness. So far as the application having been filed at a belated stage, learned Magistrate has rightly compensated the other side by way of costs.
In this view of the matter, this court has not found any reason to interfere with the order passed by the learned trial court nor any infirmity has been pointed out. The contentions raised by learned counsel for the petitioner are found to be without merit. The learned trial court has passed Crl.Misc.No.M-35331 of 2009 9 the impugned order for doing complete and substantial justice between the litigating parties.
In the totality of facts and circumstances of the case, coupled with the reasons aforementioned and also to secure the ends of justice, it is held that the instant petition is not only misconceived but the same is devoid of any merit as well and it must fail.
Accordingly, the instant petition is ordered to be dismissed.
3.5.2012 (RAMESHWAR SINGH MALIK) GS JUDGE