H D F C Vs. ANILESH

JUDGEMENT

(1.) - Is it invariable that the complainant must appear in person before a Court to file a complaint? If the complainant is not personally present, will the Mag-istrate be justified in not receiving the complaint at all? is it possible for the Magistrate to receive the complaint and post the case for recording the sworn statement to a later date after condoning the absence of the complainant on the date of presentation? In a case like Section 138 of the Negotiable instruments Act where the personal presence of the complainant is not necessary for recording the sworn statement under Section 200, cr. P. C. and an affidavit in its place has been filed under Section 145 of the Negotiable instruments Act, is it at all necessary for the Magistrate to insist on the personal appearance of the complainant/his attorney? These are the questions that arise for consideration in these Criminal M. Cs.

(2.) THE common petitioner-H. D. F. C. Ltd. is the complainant in 2 separate prosecu-tions-both before the learned Judicial magistrate of the First Class-1, Kannur. The prosecutions are initiated under Section 138 of the Negotiable Instruments Act. The complaints were presented before the learned magistrate by the counsel for the petitioner. The petitioner is an incorporated body. An officer of the petitioner-company, who is authorised under a deed of power of attorney, has filed the complaints in the name of the petitioner-company. Both complaints were presented along with applications to condone the delay in filing the complaints. When the complaints were presented, the power of attorney holder of the petitioner was not personally present. He made applications to condone his absence on the date of presentation. Those petitions were rejected. The complaints were returned to the complainant's counsel for later presentation. Aggrieved by the course adopted by the learned Magistrate, the petitioner has come before this Court.

(3.) A complaint is defined under Section 2 (d), Cr. P. C. as follows: