2008 (11) TMI 670 - SC - Indian Laws

Where a complaint in regard to dishonour of a cheque is made by a Government company represented by its officer who is a public servant whether the exemption made under clause (a) of the proviso to section 200 of Code of Criminal Procedure ( Code for short) is available?

Issues Involved:
1. Applicability of exemption under clause (a) of the proviso to section 200 of the Code of Criminal Procedure when a complaint is made by a government company represented by its officer who is a public servant.

Issue-wise Detailed Analysis:

1. Applicability of Exemption under Clause (a) of Proviso to Section 200 of the Code of Criminal Procedure:

The primary question of law in these appeals was whether the exemption under clause (a) of the proviso to section 200 of the Code of Criminal Procedure (CrPC) is available when a complaint regarding the dishonour of a cheque is made by a government company, represented by its officer who is a public servant.

Background:
The National Small Industries Corporation Limited (NSIC), a government company, lodged a complaint against the second respondent company for dishonouring a cheque. The Metropolitan Magistrate took cognizance of the complaint without examining the complainant and witnesses, citing that the complaint was filed by a public servant in discharge of his public duties. The respondents challenged this, arguing that NSIC, being a government company, is not a public servant and thus does not qualify for the exemption under clause (a) of section 200 CrPC. The High Court accepted this contention and quashed the summoning order, directing the Magistrate to record the statement of the complainant and witnesses.

Contentions:
The appellant argued that the Development Officer, who signed the complaint on behalf of NSIC, is a public servant, and thus the complaint should be treated as one made by a public servant. Consequently, the exemption under clause (a) of section 200 CrPC should apply. The respondents countered that the exemption applies only when the complaint is made by a public servant or a court, not by a government company or its employees.

Legal Provisions:
- Section 138 of the Negotiable Instruments Act (NI Act): Deals with the punishment for dishonour of cheques.
- Section 142 of the NI Act: Specifies that only the payee or the holder in due course can file a complaint for dishonour of a cheque.
- Section 200 of the CrPC: Requires the Magistrate to examine the complainant and witnesses upon taking cognizance of an offence on a complaint, with an exemption provided if the complaint is made by a public servant acting in discharge of his official duties or a court.

Judgment Analysis:
The Supreme Court clarified that while NSIC, as a government company, is not a public servant, its employees are public servants under section 21 of the Indian Penal Code. The Court emphasized the need for a harmonious interpretation of section 142 of the NI Act and section 200 of the CrPC. It recognized that a company, being an incorporeal body, can only act through its representatives. Therefore, when a public servant represents a government company in a complaint, he acts in discharge of his official duties, making him the de facto complainant. Consequently, the exemption under clause (a) of section 200 CrPC applies.

Supporting Precedents:
- Associated Cement Co. Ltd. vs. Keshvanand: Established that a complaint by a body corporate must be represented by a natural person who becomes the de facto complainant.
- Municipal Corporation of Delhi vs. Jagdish Lal: Affirmed that a complaint filed by an authorized representative of a corporation is deemed to be filed by the corporation itself.

Conclusion:
The Supreme Court held that when a complaint is made by a government company represented by its officer who is a public servant, the exemption under clause (a) of the proviso to section 200 of the CrPC is applicable. The appeal was allowed, the High Court's order was set aside, and the summoning order of the Magistrate was restored.

Result:
The appeals were allowed, and the summoning orders were restored, confirming that the exemption under clause (a) of the proviso to section 200 of the CrPC applies in such cases.

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