Arunabha Basu, J.@mdashThe revisional application u/s 401 read with Section 482 of the Code of Criminal Procedure is directed against the
judgement and order dated 29.1.2008 passed by learned Chief Judge, City Sessions Court, Calcutta In connection with Criminal Revision No.
111 of 2007, whereby and whereunder the learned Sessions Judge affirmed the order dated 30.3.2007 passed by learned Metropolitan
Magistrate, 11th Court, Calcutta.
2. A complaint case bearing No. C/313 of 1996 u/s 138 of the Negotiable Instruments Act is pending before the Court of learned Metropolitan
Magistrate.
3. Petitioner is arrayed as accused in connection with the said case.
4. It appears that initially the opposite party No. 1, which is the company, was represented by one Pawan Kumar Agarwal but an application was
filed before the learned Metropolitan Magistrate on 21.11.2006 whereby a prayer for substitution was made. It was stated that one Vinay Kumar
Gupta may be permitted to substitute the said Pawan Kumar Agarwal.
5. Learned Metropolitan Magistrate initially passed certain directions but ultimately by order dated 30.3.2007 permitted the said Vinay Kumar
Gupta to represent the complainant-company as its authorised agent in place of Pawan Kumar Agarwal.
6. The learned Metropolitan Magistrate took into consideration the plea on behalf of the company that the said Pawan Kumar Agarwal has already
left the company and as such the company is not in a position to cause his appearance. Learned Metropolitan Magistrate took into consideration
that the complainant being a company, is a juristic person and as the erstwhile authorised representative of the company namely Pawan Kumar
Agarwal has left the company, the learned Metropolitan Magistrate accepted the prayer of complainant-company and directed such substitution.
7. The order was challenged before the learned Sessions Judge in connection with Criminal Revision No. 111 of 2007. Learned Sessions Judge
took into consideration the rival contention of respective parties and relying on the decision of the Supreme Court in M.M.T.C. Ltd and Anr. v.
Medchl Chemicals & Pharma (P) Ltd. and Anr. reported in 2002 C Cr. LR (SC) 249 and other decisions of this Court refused to interfere with
the order passed by the learned Metropolitan Magistrate.
8. Learned Advocate for the petitioner during the course of his submission, pointed out that Pawan Kumar Agarwal, in his capacity as authorised
representative of the complainant-company, was already examined in part and as such the learned Court below committed an illegality in permitting
such substitution at the stage of evidence.
9. Learned Advocate appearing for the private opposite party submitted that the opposite party has already filed an application for vacating the
interim order which is registered as CRAN No. 1739 of 2008.1 have proposed to decide the revisional application along with the application filed
by the opposite party.
10. Learned Advocate for the opposite party while supporting the order passed by the learned Sessions Judge submitted that the petitioner, who is
arrayed as accused cannot insist that a company must represent by a particular person, who shall be the authorised representative of the company.
It is a matter between the company and the said person and as such the petitioner in his capacity as an accused cannot have any say over the
matter. This decision is illustrated in Supreme Court in M.M.T.C. Ltd. and Anr. (supra) took into consideration the earlier decision of the Supreme
Court in Associated Cement Co. Ltd. Vs. Keshvanand, . In this case the Supreme Court held as follows :
The complainant has to be a corporeal person who is capable of making a physical appearance in the Court. It has been held that if a complaint is
made in the name of a incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the
Court. It is held that the Court looks upon the natural person to be the complainant for all practical purposes. It is held that when the complainant is
a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complaint to represent the former in
Court proceedings. It has further been held 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. It has been held that there may be occasions when different
persons can represent the company. It has been held that it is open to the de jure complainant company to seek permission of the Court for
sending any other person to represent the company in the Court. Thus, even presuming, that initially there was no authority, still the company can,
at any stage, rectify that defect. At a subsequent stage the company can send a person who is competent to represent the company. The
complaints could thus not have been quashed on this ground.
11. In this view of the matter the petitioner cannot have any grievance about such substitution particularly when learned Court below accepted the
contention of the complainant-company that its erstwhile authorised representative has already left the company and he is required to be substituted
by another authorised representative. If that application was rejected by the learned Magistrate then it would have caused great prejudice to the
complainant in order to pursue their case as because the person who has already left the company, cannot remain their authorised representative.
12. It has to be borne in mind that the authorised representative represents the company till he has relation with the company or he is accepted to
be an authorised representative by such company.
13. When the company has no control over the authorised representative as because the said person has already left the company then it will be
unjust to insist that the complainant-company must pursue with the said case with the erstwhile authorised representative.
14. In my view the Supreme Court decision in M.M.T.C. Ltd. and Anr. (supra) will be squarely applicable in the facts situation of this case,
particularly when the defence cannot be said to have been prejudiced by such change/substitution of authorised representative. In other words
unless the prayer is granted then a peculiar position will arise where the complainant- company will be compelled to proceed with the case being
represented by an authorised representative, who is neither authorised by the company any more as he has left the company nor can be a
representative of the company because after his departure he may not have any interest in the affairs of the company, including pursuing the case
now pending before the Court of learned Metropolitan Magistrate. In this view of the matter the main grievance of the petitioner against the order
of the learned Sessions Judge and the learned Metropolitan Magistrate may not be accepted and must be refused.
15. Learned Advocate appearing for the opposite party, however, submitted that the present revisional application is not maintainable mainly in
view of the fact that the petitioner herein has filed a second revisional application after his initial revisional application filed before the Sessions
Judge was dismissed. Such filing of the second revisional application cannot be permitted in view of specific bar as prescribed u/s 397 of the Code
of Criminal Procedure.
16. Sub-section (3) to Section 397 of the Code of Criminal Procedure stipulates that if an application under this Section has been made by any
person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. There
cannot be any dispute to the legal proposition that second revisional application by the same person will not be maintainable.
17. The Code of Criminal Procedure prescribes concurrent jurisdiction so far as the revisional power is concerned, either with the Court of
Sessions or with the High Court. Law has given the choice to the party to approach either the Court of Sessions or the High Court in connection
with revisional application. But once the choice is taken by the party to move the Court of Sessions and if the revisional application is decided
finally against him then he cannot file a second revisional application before the High Court.
18. It is also pertinent to point out that the power of this Court u/s 482 cannot be exercised against a specific legal provision under the Code of
Criminal Procedure.
19. Learned Advocate for the petitioner submitted that the petitioner is mainly aggrieved by the order of the learned Magistrate passed on
30.3.2007 where the learned Magistrate directed that evidence adduced by Pawan Kumar Agarwal be expunged. The relevant portion of the
order runs as follows:
Evidence adduced by P. Agarwal is hereby expunged.
20. In the revisional application, at ground No. 2, it has been averred that learned Magistrate committed a serious mistake in expunging the
evidence, which is already on record. It appears that further cross-examination of said Pawan Kumar Agarwal was pending when such substitution
was effected by the complainant company mainly on the ground that the Pawan Kumar Agarwal has left the company.
21. Learned Advocate for the petitioner referred to three-Judges Bench decision of Supreme Court in Krishnan and another Vs. Krishnaveni and
another, .
21. At para 10 of the aforesaid decision, Hon''ble Supreme Court held as follows:
10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse
to the revision to the High Court u/s 397(1) or under inherent powers of the High Court u/s 482 of the Code since it may amount to circumvention
of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power u/s 401 and continuous
supervisory jurisdiction u/s 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice
or abuse of process of the Courts or the required statutory procedure has been complied with or there is failure of justice or order passed or
sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave
miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved
with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional
power u/s 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of
procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal
and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the
witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when
expeditious trial is conducted.
23. It may be pointed out in this context that the power of the High Court u/s 482 of the Code of Criminal Procedure, is normally exercised when
the High Court finds it necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice. The power of High Court should be exercised when the High Court finds that serious illegality has been committed by
the learned Court below while dealing with a judicial matter oven at the same is not the subject-matter of the revision.
24. The present revision is mainly directed against the order passed by the learned Sessions Judge and there is nothing to show in the order passed
by the learned Sessions Judge that this aspect of the matter was at all taken up before the said Court. But while dealing with an application u/s 482
of the Code of Criminal Procedure, the High Court cannot be unmindful of the actual state of affairs and cannot adopt a hyper technical approach
while dealing with the matter. If during the course of hearing, it is brought to the notice of this Court about the serious illegality committed by the
Court below, then in all fairness of the matter the High Court is required to exercise its inherent jurisdiction to rectify the illegality.
25. There is no provision either in the Evidence Act or in the Code of Criminal Procedure under which direction to expunge evidence can at all be
passed by the learned Court below. Evidence adduced on record has to be taken into consideration irrespective of its value.
26. In this case as because there is substitution of authorised representative and as because the earlier authorised representative was examined in
part (as the examination of the said witness is not complete) then the learned Court below cannot direct expunction of the said evidence which is
already on record. The value of such evidence has to be decided at the time of conclusion of trial. Change of authorised representative by the
complainant company cannot be a ground to expunge the evidence which is already on record particularly when the law does not permit such
expunction of evidence. In my view the portion of the order under which the learned Magistrate directed that the evidence of Pawan Kumar
Agarwal stands expunged, must be set aside and quashed and the same is set aside accordingly.
27. With this direction and observation, the revisional application is disposed of.
28. There shall be no order as to costs.
29. As the case is pending since 1996, learned Court below shall proceed as expeditiously as possible and conclude the trial within a period of six
months from the date of receipt/communication of the order.
30. I make myself absolutely clear that I have not entered into any discussion either about the merit of the complaint case or about the value of
evidence, which is already on record. Learned Court below shall decide the matter independently without being influenced by any of the
observation as recorded in the body of the order.
31. No separate order is required to be passed in the application filed by the opposite party being CRAN 1739/2008 and the same stands
disposed of along with this revisional application.
32. Criminal Section is directed to forward a copy of the order to learned Court below immediately.
33. Criminal Section is also directed to supply urgent certified copy of the order to the parties as and when applied for.