Raasi Cements Limited vs Prithiviraj

S.M. Sidickk, J.—This is a petition filed by the petitioner u/s 482 of Cr. P.C. to set aside the order of the XIV Metropolitan Magistrate,

Egmore, Madras-8 dated 29-1-1997 passed in Crl. M.P. No. 1388 of 1996 in C.C. No. 3322 of 1994 and to direct the XIV Metropolitan

Magistrate, Egmore, Madras to permit the petitioner to authorise one P. Suryanarayana Rao in the place of B. Suresh Yagneswar to represent the

petitioner in the above case in C.C. No. 3322 of 1994.

It is the case of the petitioner-complainant Company that on the dishonour of cheque of Rs. 8,07,978/- issued by the respondent/accused, the

petitioner has filed a complaint u/s 138 of Negotiable Instruments Act in C.C. No. 3322 of 1994 on the file of the Court of XIV Metropolitan

Magistrate, Egmore, Madras and one Suresh Yagneswar, an Accountant of the complainant-company, was originally authorised to represent the

petitioner company, who filed C.C. No. 3322 of 1994 on 11-4-1994 and subsequently, the above said Suresh Yagneswar resigned from the

petitioner''s company, and thereupon the complaint/petitioner''s company wanted to substitute one P. Suryanarayana Rao, who is working as

Deputy Manager (Accounts) to represent the petitioner in C.C. No. 3322/94 in the place of Suresh Yagneswar, and for that purpose the petitioner

filed a substitution petition and the learned XIV Metropolitan Magistrate dismissed the application for substitution in Crl. M.P. No. 1388 of 1996

filed by the petitioner on 29-1-1997, and it is against this dismissal order passed in Crl. M.P. No. 1388/96 that this application u/s 482 of Cr. P.C.

has been filed by the petitioner.

On hearing the learned counsel for both sides, the point that arises for consideration in this petition is as to whether the petitioner is entitled to the

relief prayed for in this petition u/s 482 of Cr. P.C.

Point :- The learned XIV Metropolitan Magistrate, Egmore, Madras had dismissed the application for substitution filed by the petitioner, who is

a limited company in Crl. M.P. No. 1388/96 on the sole ground that the petitioner has not submitted to the lower Court the resignation letter of

Suresh Yagneswar, who represented the petitioner''s company in the complaint in C.C. No. 3322 of 1994. For so many reasons an employee can

resign from his company and he need not submit any resignation letter. It is unreasonable to expect that all employees in a private company will

submit their resignation letter like the Government servants in the Government Office. Some times it may happen that the employees of a private

limited company like the petitioner herein can orally inform the petitioner company that he has resigned from his job from such and such date and

he would no longer be available for the service of the company. In such circumstance one cannot be expected to produce the resignation letter

which the learned Magistrate insisted upon before allowing the substitution application in Crl. M.P. No. 1388 of 1996. The learned Magistrate

cannot compel the petitioner company to produce the resignation letter of B. Suresh Yagneswar. In this respect it is useful to note Section 305(2)

of Cr. P.C. which states that where a corporation is the accused person or one of the accused persons in an inquiry or trial, it may appoint a

representative for the purpose of the inquiry or trial and such appointment need not be under the seal of the corporation. Similarly a company like

the petitioner company as the complainant may appoint another representative for very many reasons for the purpose of inquiry or trial and that

cannot be prevented by insisting upon a resignation letter of the previous representative. An employee may even abandon his post in a private

company and then inform orally that he has resigned from the said company. In such a situation, one cannot expect the resignation letter from the

concerned employee. It is unreasonable to expect on the part of the Magistrate that the resigned employee or a dismissed employee should

continue the criminal proceedings on behalf of a company. So also in the present case it is stated by the petitioner that their accountant has resigned

his job and the learned Magistrate should not have compelled the complainant company to produce the resignation letter of Suresh Yagneswar, the

previous employee of the petitioner company. The learned Advocate for the petitioner produced the Xerox Copy of the special power of attorney

given to the new representative Suryanarayana Rao on 13-4-1995 whereby the said Suryanarayana Rao was authorised to represent the

complainant company to give evidence on behalf of the petitioner in all legal proceedings in any Court of Law in the State of Tamilnadu. In those

circumstances I have no hesitation to come to the conclusion that the order of the learned Magistrate passed on 29-1-1997 dismissing the

substitution application in Crl. M.P. No. 1388/96 is not sustainable, and so the order dated 29-1-1997 in Crl. M.P. No. 1388/96 passed by the

learned XIV Metropolitan Magistrate, Egmore, Madras has to be aside, and the substitution application filed by the petitioner company before the

lower Court in Crl. M.P. No. 1388/1996 has to be allowed, and the learned XIV Metropolitan Magistrate, Egmore, Madras has to be directed to

permit the petitioner to authorise Suryanarayana Rao to represent the petitioner company in C.C. No. 3322/1994 in the place of Suresh

Yagneswar.

The learned counsel for the petitioner has drawn my attention to one another ground on the basis of which the learned Magistrate has dismissed

the application for substitution before him. According to the learned Magistrate, there is no specific provision of law under which the substitution

petition can be filed and allowed. The learned counsel for the petitioner has brought to my notice that there is no specific provision of law for filing

applications like the petition to accept sureties, the petition for the return of documents filed by the sureties, and the petition to advance the hearing

of an application and in such circumstances the Magistrate Courts are also entertaining the applications for the abovesaid purposes and so the

petitioner need not mention the provision of law under which he can file the substitution petition to replace and to substitute a representative of a

limited company. This seems to be justifiable because in the absence of any specific provision of law if a limited Company like the petitioner cannot

file a petition for substitution in respect of his former employee, then ultimately the complaint will end in its dismissal on technical grounds. In the

interest of justice, such applications like the petition to accept sureties, the petition for the return of the documents by the sureties and the petition

for advancement of the hearing of an application are being entertained by the Magistrate''s Courts, it is also reasonable to entertain an application

for substitution of a representative in respect of a private Company to prosecute its complaint in the absence of specific provision of law. This view

is in consonance with the decision of the Supreme Court reported in K. M. Mathew v. State of Kerala (1992) M LW (Cri) 14 : 1992 C LJ 3779

wherein it was held that no specific provision of law is required for a Magistrate to drop proceedings or to rescind the process in a summons Case

and it is the judicial discretion of the Magistrate to allow such proceedings. So also the present case before us is the summons Case and it is in the

judicial discretion of the Magistrate to allow the application for substitution to replace a resigned employee to represent the petitioner''s Company

and in his place to substitute a working employee to represent the petitioner''s Company to prosecute the complaint further filed on behalf of the

petitioner''s Company. Hence I hold that the petitioner is entitled to the relief prayed for, and this application has to be allowed, and accordingly it

is allowed, and consequently I answer this point in favour of the petitioner.

In the result the petition is allowed. The order dated 29-1-1997 passed by the learned XIV Metropolitan Magistrate, Egmore, Madras-8 in Crl.

M.P. No. 1388/1966 in C.C. No. 3322/1994 is set aside for the reasons stated therein. The learned XIV Metropolitan Magistrate, Egmore,

Madras is directed to permit the petitioner to authorise Suryanarayana Rao to represent the petitioner company in C.C. No. 3322/1994 in the

place of Suresh Yagneswar. Consequently the stay petition in Crl. M.P. No. 3468 of 1997 is dismissed as unnecessary.

Petition allowed.