TaxTMI 
TaxTMI 
1997 (12) TMI 629
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....acs of rupees. Facts, which are not disputed for the present appeal, show that appellant-company was represented in the trial court by one Puneet Aggarwal with a power a attorney of the company. Learned magistrate took cognizance of the offence, and after examining Puneet Aggarwal on oath, issued summons to the offence, and after examining Puneet Aggarwal on oath, issued summons to the respondent pursuant to which he appeared in court. As the trial proceeded, Puneet Aggarwal and another person were examined as prosecution witnesses and the case was posted for further evidence to 23.8.1996. On that day the complainant was absent and the counsel for the accused pressed for dismissal of the complaint. however, the magistrate posted the case to the next day, but on that day also the complainant and his counsel were absent. Then the magistrate recorded the order of acquittal of the accused under Section 247 of the Code of Criminal Procedure, 1998 (Which is applicable to the State of Jammu & Kashmir even now. it will hereinafter be referred to as 'the old Code'). In the appeal petition filed before the High Court it was stated that Puneet Aggarwal was posted as an officer of the appella....
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....m or even grasp the reason for making such a statement in the counter affidavit so we asked Shri M.L. Bhat, learned senior counsel (who appeared for the respondent) as to the relevance or the raison d'etre for the said averment. Shri M.L. Bhat than submitted that he too concedes that the said averment is quite irrelevant for this case and offered to withdrew it. Later an application has been filed for deleting that portion from the affidavit. While we allow that application to deleted the said portion we cannot but express our displeasure over and disapproval of the conduct in scribbling down sch irrelevant and mischievous imputation in an affidavit filed in this Court, particularly the unwholesome attempt to drag in a judge of this Court. It is sad that when such an unsavory statement was scribed into an affidavit the idea of deleting it did not occur to him at least when the affidavit was authenticated by the advocate. Indeed, he decided to delete it only when we asked the senior counsel about its relevance. We do not wish to say anything more about it. Learned single judge of the High Court apprised himself of the width of the appellate powers of the High Court as follows, in th....
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....f the court below. In this case when the High Court considered that its only concern was to check whether the order of the magistrate "is fraught with any illegality or impropriety", the High Court has narrowed down its angle while dealing with an appeal. When a trial court had acquitted an accused due to non- appearance of the complainant the appellate court has the same powers as the trial court to reach a dress decision as to whether on the particular situation the magistrate should have acquitted the accused. What the trial court did not then ascertain and consider could, perhaps, be known to the appellate court and a decision different from the trial court can be taken by the appellate court, whether the order of acquittal should have been passed in the particular situation. " If the summons has been issued on complaint, and upon the day appointed of the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to a....
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....on that day for progress of the case and also whether the situation does not justify the case being adjoined to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. When considering the situation of this case as on 24-8- 1996, from the facts narrated above, we have no manner of doubt that the magistrate should not have resorted to the axing process, particularly since the complainant was already examined as a witness in the case besides examining yet another witness for the prosecution. Appellant has adopted an alternative contention that as the complainant in this case is a company which is an incorporeal entity there is no question of the complainant being absent in the court on any day fixed for hearing and hence Section 247 of the old Code (or Se....
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....the complaint on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the magistrate. Section 256 or Section 249 of the new Code clothes the magistrate with jurisdiction to dismiss the company when the complainant is absent, which means his physical absence. 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 component to 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....