NATIONAL SMALL INDUSTRIES CORPORATION LTD.versusSTATE (NCT OF DELHI) & ORS.

                                 [2008] 16 S.C.R. 83


     -t        NATIONAL SMALL INDUSTRIES CORPORATION LTD.                    A
                                   v.
                       STATE (NCT OF DELHI) & ORS.

                       (Criminal Appeal No.1802 of 2008 etc.)

                                                                             B
                                NOVEMBER 17, 2008
     !
               [R.V. RAVEENDRAN AND DALVEER BHANDARI, JJ.]

                  Code of Criminal Procedure, 1973 - s. 200 Proviso,
              Clause (a) - Exemption under - Applicability of - In respect   c
              of complaint for dishonour of cheque by Government
              Company through its officer who is a public servant - Held:
              In a case of dishonour of cheque where a company (an
              incorporeal body) is the payee, becomes de jure
              complainant and the employee representing it becomes a         D
              de facto complainant - If the employee-representative is a
              public servant, exemption under the provision is applicable
              - Negotiable Instruments Act, 1881 - ss. 138 and 142.

                   Words and Phrases - 'Public Servant' - Meaning of in
                                                                             E
              the context of s.200 Cr.P.C. ands. 21 /PC.

                   The question for consideration in the present appeal
              is where a complaint with regard to dishonour of cheque
              is made by a Government Company, represented by its
          t   officer who is a public servant, whether the exemption         F
              made under clause (a) of the proviso to Section 200
              Cr.P.C., is available.

                  Allowing the appeals, the Court                                ..
                  HELD: 1.1. The object of Section 200 Cr.P.C. requiring     G
-+
          }
              the complainant and witnesses to be examined, is to find
              out whether there are sufficient grounds for proceeding
              against the accused and to prevent issue of process on

                                           83                                H
    84       SUPREME COURT REPORTS            [2008] 16 S.C.R.


A complaints which are false or vexatious or intended to
   harass the persons arrayed as accused. Where the
  complainant is a public servant or court, clause (a) of
  proviso to Section 200 Cr.P.C. raises an implied statutory
  presumption that the complaint has been made
B responsibly and bona fide and not falsely or vexatiously.
  On account of such implied presumption, where the
  complainant is a public servant, the statute exempts
  examination of the complainant and the witnesses, before
  issuing process. When an employee of a Government
c company or statutory corporation, who is a public
  servant, acts or purports to act in the discharge of his
  official duties, it necessarily refers to doing acts done or
  duties discharged by such public servant, for and on
  behalf of his employer, namely, the Government company/
  statutory corporation. Any complaint by a public servant
0
  (if he happens to be an employee of a Government
  company) acting or purporting to act in the discharge of
  his official duties, can only be in regard to the
  transactions or affairs of the employer company. [Para 9J
E [93-C-GJ
       1.2. In a complaint relating to dishonour of a cheque
  (which has not been endorsed by the payee in favour of
  anyone), it is the payee alone who can be the
  complainant. The requirement of section 142 of
F Negotiable Instruments Act, 1881 that payee should be
  the complainant, is met if the complaint is in the name of
  the payee. If the payee is a company, necessarily the
  complaint should be filed in the name of the company.
  Section 142 of the Act does not specify who should
G representthe company, if a company is the complainant.
  A company can be represented by an employee or even                ,
  by a non-employee authorized and empowered to                  {

  represent the company either by a resolution or by a
  power of attorney. [Para 1OJ [94-D-F; HJ
H        1.3. Section 138 of the Act mandates that payee
    NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.          85
+            STATE (NCT OF DELHI) & ORS.

    alone, whether a corporeal person or incorporeal person, A
    shall be the complainant. Section 200 Cr.P.C.
    contemplates only a corporeal person being a
    complainant. It mandatorily requires the examination of
    the complainant and the sworn statement being signed
    by the complainant. If Section 142 of the Act and section B
    200 Cr.P.C. are read literally, the result will be : (a) the
    complainant should be the payee of the cheque; and (b)
    the complainant should be examined before issuing
    process and the complainant's signature should be
    obtained on the deposition. Therefore, if the payee is a C
    company, an incorporeal body, the said incorporeal body
    can alone be the complainant. The mandatory
    requirement of Section 200 Cr.P.C. is that a Magistrate
    taking cognizance of an offence on complaint, shall
    examine upon oath the complainant, and that the
    substance of such examination reduced to writing shall D
     be signed by the complainant. An incorporeal body can
    obviously neither give evidence nor sign the deposition.
     If literal interpretation is applied, it would lead to an
     impossibility as an incorporeal body is incapable of being
     examined. In the circumstances, a harmonious and E
     purposive interpretation of Section 142 of the Act and
     Section 200 Cr.P.C. becomes necessary. [Para 11] [95-A-
     E]
         1.4. Where the complainant is a company, who will
    represent the company and how the company will be            F
    represented in such proceedings, is not governed by
    Cr.P.C. but by the relevant law relating to companies.
    Section 200 Cr.P.C. mandatorily requires an examination
    of the complainant; and where the complainant is an
    incorporeal body, evidently only an employee or              G
    representative can be examined on its behalf. As a result,
    the company becomes a de jure complainant and its
    employee or other representative, representing it in the
    criminal proceedings, becomes the de facto complainant.
    Thus in every complaint, where the complainant is an         H
    86        SUPREME COURT REPORTS           [2008] 16 S.C.R.

                                                                 +
A incorporeal body, there is a complainant -- de jure, and a
  complainant -- de facto. Clause (a) of the proviso to
  section 200 Cr.P.C. provides that where the complainant
  is a public servant, it.will not be necessary to examine the
  complainant and his witnesses. Where the complainant
B is an incorporeal body represented by one of its
                                                                 l
  employees, the employee who is a public servant is the
  de facto complainant and in signing and presenting the
  complaint, he acts in the discharge of his official duties.
  Therefore, it follows that in such cases, the exemption
C under clause (a) of the first proviso to Section 200 Cr.P.C.
  will be available. [Para 11] [95-F-H; 96-A-B]
       1.5. When in a complaint in regard to dishonour of a
  cheque issued in favour of a company or corporation, for
  the purpose of section 142 of the Act, the company will
D be the complainant, and for purposes of Section 200
  Cr.P.C. its employee who represents the company or
  corporation, will be. the de .facto complainant. In such a
  complaint, the de jure complainant, namely, the company
  or corporation will remain the same but the de facto
E complainant (employee) representing such de jure
  complainant can change, from time to time. And if the de
  facto complainant is a public servant, the benefit of
  exemption under clause (a) of proviso to Section 200
  Cr.P.C. will be available, even though the complaint is
F made in the name. of a company or corporation. Where
  an incorporeal body is the payee and the employee who
  represents such incorporeal body in the complaint is a
  public servant, he being the de facto complainant, clause
  (a) of the proviso to Section 200 Cr.P.C. will be attracted
  and consequently, the Magistrate need not examine the
G complainant and the witnesses. [Paras 13 and 14) [98-D-
   F, G, HJ
      Associated Cement Co. Ltd. vs. Keshvanand 1998 (1)
  SCC 687 and Municipal Corporation of Delhi vs. Jagdish Lal
H 1969 (3) SCC 389, relied on.
    NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.            87
             STATE (NCT OF DELHI) & ORS.

         Nirmaljit Singh Hoon vs. The State of West Bengal 1973 A
    (3) sec 753, referred to.

                      Case Law Reference:

        1913 (3) sec 753             Referred to.      Para 9
                                                                   B
)
        1998 (1) sec 687             Relied on.        Para 12

        1969 (3) sec 389             Relied on.        Para 12

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1802 of 2008.                                              c
        From the final Judgment and Order dated 12.1.2007 of the
    High Court of Delhi at New Delhi in Crl.M.C. 4489-4491 of
    2005. r, '

                               WITH                                D

    Crl.A. Nos. 1803-1821 of 2008.

        Shobha, Harish Sharma, R.P. Yadav, Sanat Kumar and
    Sanjay Sharawat, for the Appellant.
                                                                   E
       Vijay Kumar Agarwal, Prabhjit Jauhar, S.S Jauhar, Manish
    Shanker Verma, Anupam Lal Das and Amit Sharma for the
    Respondents

        The Judgment of the Court was delivered by
                                                                   F
        R. V. RAVEENDRAN J. 1. Leave granted. Heard the
    counsel for the parties. The following question of law arises for
    consideration in these appeals : 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 G
>   exemption made under clause (a) of the proviso to section 200
    of Code of Criminal Procedure, ('Code' for short) is available?

        Crl. Appeal No. 1802/2008 (@ SLP(Crl.) No.2009/2007)

        2. The National Small Industries Corporation Limited H
    88        SUPREME COURT REPORTS                [2008] 16 S.C.R.

                                                                       +
A ('NSIC' for short) - the appellant herein, is a 'government
  company' within the meaning of that expression under section
  617 of the Companies Act, 1956. Its object is to extend financial
  and other assistance to small scale industries. The appellant
  lodged a complaint in the Court of the Metropolitan Magistrate,
B Delhi, alleging that the second respondent company had issued
  a cheque drawn in favour of the appellarit, towards discharge
  of its liability, and the said cheque was dishonoured when
  presented for payment. The appellant therefore prayed for
  summoning and punishing the second respondent and its
c Directors (respondents3 and 4).
        3. On 4.2.2002, the learned Magistrate took cognizance
    and summoned the accused. He did not exarT)ine the
    complainant and its witnesses, under section 200 of thl; Code.
    He recorded the following reasons in that behalf :
D
         "Complaint has been filed by a public servant in discharge
         of his public duties. Hence his examination is dispensed
         with. I have perused the record and considered the
         submission. I have also perused the original documents
E        also. I consider that prima facie case under Sections 138/
         142 of Negotiable Instruments Act is made out."

  Respondents 2 to 4 filed a petition under section 482 of the
  Code challenging the summoning order. They contended that
  as the complainant was a government company and not a
F public servant, the exemption under clause (a) of the proviso
  to section 200 of the ·Code was not available; and that the
  learned Magistrate could not have dispensed with the
  mandatory requirement of examining the complainant on oath,
  under section 200 of the Code. The High Court accepted the
G said contention on the following reasoning :
                                                                       {
         "Public servant is defined in section 21 of the IPC and a
         government company would not fall under any of the
         descriptions mentioned in the said section. Once it is held
H        that NSIC is not a public servant, mandate of section 200
         NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.                  89
         STATE (NCT OF DELHI) & ORS. [R.V. RAVEENDRAN, J.]

             Cr.PC was to be followed by the learned MM, which                A
             provides compulsory examination of the complainant and
             the witnesses present, if any, on oath and on the basis of
             such pre-summoning evidence, the Magistrate is to decide
             as to whether cognizance of the offence is to be taken and
             summons are to be issued to the accused persons or not.          B
    +        This is the unambiguous mandatory procedure prescribed
             under section 200 Cr.P.C."

         Consequently, by order dated 12.1.2007, the High Court allowed
         the petition and quashed the summoning order. It however made
                                                                              c
-        it clear that the learned Magistrate would be at liberty to record
         the statement of the complainant and the witnesses and
         thereafter take appropriate decision in the matter in accordance
         with section 200 of the Code. The said order is challenged in
         this appeal.
                                                                              D
              Contentions:

              4. The appellant company submitted that being an
         incorporeal person, it acts through its officers. In the complaint
         lodged against respondents 2 to 4, it is represented by its
                                                                              E
         Development Officer, who is a public servant, and he has
         signed the complaint on its behalf. The appellant contended that
         though the appellant was the de jure complainant, its
         Development Officer who represents it in the complaint was the
    -1
         de facto complainant; and when the complaint by a government
         company is signed and presented by its employee who is a
                                                                              F
         public servant, it should be deemed to be a complaint by such
         public servant acting in the discharge of his official duties.
         Consequently, clause (a) of the proviso to section 200 of the
         Code would be attracted and the Magistrate was not required
         to examine the complainant and the witnesses, on taking              G
         cognizance. It is therefore contended that a complaint by a
         government company represented by its officer who is a
         public servant, should be treated as complaint by a public
          servant.
                                                                              H
    90         SUPREME COURT REPORTS                 [2008] 16 S.C.R.


A       5. On the other hand, the second respondent submitted that
   the wording of clause (a) of the proviso to section 200 of the
   Code made it clear that the Magistrate was not required to
   examine the complainant and the witnesses only where the
   complaint was made in writing by : (a) a public servant acting
B or purporting to act in discharge of his official duties; and (b) a
                                                                           I
  court. The second respondent contended that if the intention was
   to exempt such examination even where the complainant was
  a government company or statutory corporation, clause (a)
  would have read : "if a public servant acting or purporting to act
c in the discharge of his official duties, or a court, statutory
  corporation or Government company, has made the complaint"
  instead of "if a public servant acting or purporting to act in the           -
  discharge of his official duties or a court has made the
  complaint". It is argued that the use of the words "public servant
  acting or purporting to act in the discharge of his official duties",
0
  would show that the exemption is intended to apply only where
  government servants or employees of statutory bodies are
  required to file complaints in the discharge of statutory duties.
  Reference was made by way of illustration to section 11 of the
  Essential Commodities Act, which provides that "No court shall
E take cognizance of any offence punishable under the Act except
                                                                               -
  on a report in writing of the facts constituting such offence made
  by a person who is a public servant as defined in section 21


F
  oflPC ..... ".

       6. The second respondent next contended that if all the
                                                                          ~-   .
  employees of a government company are public servants, the
  government company does not become a public servant, as it
  has.an identity distinct from its employees. In support of the said
  contention, the second respondent relied upon the following
G observations in State Trading Corporation of India Ltd. v.
  Assistant Superintendent of Commercial Taxes [AIR 1963 SC
  1811]:

         "We are dealing here with an incorporated company. The
         nature of the personality of an incorporated company which
H
     NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.                91
     STATE (NCT OF DELHI) & ORS. [R.V. RAVEENDRAN, J.]
-+
         arises from a fiction of law, must be clearly understood ... .. A
         Unlike an unincorporated company, which has no separate
         existence and which .the law does not distinguish from _its
         members, an incorporated company has a separate
         existence and the law recognizes it as a legal person°
         separate and distinct from its members. Ttlls_iiew-lega1 B
         personality emerges from the moment of incorporation and
         from that date the person subscribing to the memorandum
         of association and other persons joining as members are
         regarded as a body corporate or a corporation aggregate
         and the new person begins to function as an entity. But c
         the members who form the incorporated company do not
         pool their status or their personality. If all of them are
         citizens of India the company does not become a citizen
         of India any more than if all are married the company
         would be a married person. The personality of the              D
         members has little to do with the persona of the
         incorporated company. The persona that comes into being
         is not the aggregate of the personae either in law or in
         metaphor."

                                               (emphasis supplied)      E

     In reply, the learned counsel for appellant clarified that the
     appellant had never contended that it was a public servant. The
     contention always was that the employee who represented the
     appellant in the complaint was the de facto complainant and . F
     he being public servant, the exemption was available'.
                                                          I
     Legal provisions:

          7. Section 138 of the Negotiable instruments Act (for short
     'NI Act') provides that dishonour of a cheque for insufficiency    G
     of funds in the bank account etc., is an offence punishable with
     imprisonment for a term which may be extended to two years
     or with fine which may extend to twice the amount of the
     cheque or with both. Section 142 of the NI Act provides that
      notwithstanding anything contained in the Code, no court shall    H
     92         SUPREME COURT REPORTS                [2008] 16 S.C.R.
                                                                         +-
A    take cognizance of any offence punishable under section 138
     except upon a complaint in writing made by the Payee (or
     where it has been endorsed in favour of another, the holder in
     due course) of the cheque.

          8. Section 190 of the Code enumerates the various ·
8
    modes of taking cognizance of offences by Magistrates. It
    provides for taking cognizance upon receiving a complaint of
    facts which constitutes such offence. Section 200 of ihe Code
    relates to examination of complainant. Relevant portion of which
    reads as under :
c
          "200. Examination of complainant. - A Magistrate taking
          cognizance of an offence on complaint shall examine upon
          oath the complainant and the witnesses present, if any, and
          the substance of such examination shall be reduced to
D         writing and shall be signed by the complainant and the
          witnesses, and also by the Magistrate:

          Provided that. when the complaint is made in writing, the
          Magistrate need not examine the complainant and the
          witnesses -
E
          (a) If a public servant acting or purporting to act in the
          discharge of his official duties or a court has made the
          complaint; or

=         (b) xxxxx''

  The term 'public servant' is not defined in the Code. However,
  section 2(y) of the Code provides that words and expressions
  used but not defined in the Code will have the meaning
  assigned to them under the Indian Penal Code. Section 21 IPC
G defines 'public servant', the relevant portion of which is extracted
  below:

          "21. 'Public servant'.- The words "pubic servant" denote a
          person falling under any of the descriptions hereinafter
H         following; namely -
NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.                 93
STATE (NCT OF DELHI) & ORS. [R.V. RAVEENDRAN, J.)

    Twelfth - Every person - xxxxx (b) in the service or pay of      A
    a local authority, a corporation established by or under a
    Central, Provincial or State Act or a Government company
    as defined in section 617 of the Companies Act, 1956."

Having regard to the aforesaid definition, it is clear that the      B
appellant which is a government company is not a 'public
servant', but every employee of the appellant is a 'public
servant'.

The issue
                                                                     c
      9. The object of section 200 of the Code requiring the
complainant and witnesses to be examined, is to find out
whether there are sufficient grounds tor proceeding against the
accused and to prevent issue of process on complaints which
are false or vexatious or intended to harass the persons             o
arrayed as accused. (See: Nirmaljit Singh Hoon vs. The State
of West Bengal - 1973 (3) SCC 753). Where the complainant
is a public servant or court, clause (a) of proviso to section 200
of the Code raises an implied statutory presumption that the
complaint has been made responsibly and bona fide and not            E
falsely or vexatiously. On account of such implied presumption,
where the complainant is a public servant, the statute exempts
examination of the complainant and the witnesses, before
 issuing process. When an employee of a Government company
 or statutory corporation, who is a public servant, acts or
 purports to act in the discharge of his official duties, it         F
 necessarily refers to doing acts done or duties discharged by
 such public servant, for and on behalf of his employer, namely,
 the government company/statutory corporation. Any complaint
 by a public servant (if he happens to be an employee of a
 government company) acting or purporting to act in the              G
 discharge of his official duties, can only be in regard to the
 transactions or affairs of the employer company. When an
 offence is committed in regard to a transaction of the
 Government company, it will be illogical to say that a complaint
 regarding such offence, if made by an employee acting for and       H
    94        SUPREME COURT REPORTS              [2008] 16 S.C.R.


A on behalf of the company will have the benefit of exemption
  under clause( a) of the proviso to section 200 of th'3 Code, but
  a complaint in regard to very same offence, if made in the name
  of the company represented by the said employee, will not have.
  the benefit of such exemption. The contention of the second
B respondent, if accepted, would mean that a complaint by 'The
  Development Officer, NSIC' as the complainant can avail the
  benefit of exemption, the same complaint by 'NSIC represented
  by its Development Officer' as complainant will not have the
  benefit of exemption. Such an absurd distinction is clearly to
c be avoided.
        10. The term 'complainant' is not defined under the Code.
   Section 142 NI Act requires a complaint under section 138 of
   that Act, to be made by the payee (or by the holder in due
   course). It is thus evident that in a complaint relating to
D dishonour of a cheque (which has not been endorsed by the
  payee in favour of anyone}, it is the payee alone who can be
  the complainant. The NI Act only provides that dishonour of a
  cheque would be an offence and the manner of taking
  cognizance of offences punishable under section 138 of that
E Act. However, the procedure relating to initiation of
  proceedings, trial and disposal of such complaints, is governed
  by the Code. Section 200 of the Code requires that the
  Magistrate, on taking cognizance of an offence on complaint,
  shall examine upon oath the complainant and the witnesses
F present and the substance of such examination shall be
  reduced to writing and shall be signed by the complainant and
  the witnesses. The requirement of section 142 of NI Act that
  payee should be the complainant, is met if the complaint is in
  the name of the payee. If the payee is a company, necessarily
G the complaint should be filed in the name of the company.
  Section 142 of NI Act does not specify who should represent
  the company, if a company is the complainant. A company can
  be represented by an employee or even by a non-employee
  authorized and empowered to represent the company either by
H a resolution or by a power of attorney.
             NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.               95
             STATE (NCT OF DELHI) & ORS. [R.V. RAVEENDRAN, J.]
     +             11. Section 138 NI Act mandates that payee alone, A
             whether a corporeal person or incorporeal person, shall be the
             complainant. Section 200 of the Code contemplates only a
             corporeal person being a complainant. It mandatorily requires
             the examination of the complainant and the sworn statement
             being signed by the complainant. If section 142 of NI Act and B
             section 200 of the Code are read literally, the result will be :
             (a) the comolainant should be the payee of the cheque; and (b)
             the complainant should be examined before issuing process
             and the complainant's signature should be obtained on the
             deposition. Therefore, if the payee is a company, an incorporeal c
             body, the said incorporeal body can alone be the complainant.
             The mandatory requirement of section 200 of the Code is that
             a Magistrate taking cognizance of an offence on complaint,
             shall examine upon oath the complainant, and that the
             substance of such examination reduced to writing shall be
                                                                                D
             signed by the complainant. An incorporeal body can obviously
     "       neither give evidence nor sign the deposition. If literal
             interpretation is applied, it would lead to an impossibility as an
              incorporeal body is incapable of being examined. In the
..           circumstances, a harmonious and purposive interpretation of
             section 142 of NI Act and section 200 of the Code becomes E
              necessary. Section 142 only requires that the complaint should
              be in the name of the payee. Where the complainant is a
             company, who will represent the company and how the
• ·i         company will be represented in such proceedings, is not
              governed by the Code but by the relevant law relating to F
              companies. Section 200 of the Code mandatorily requires an
             examination of the complainant; and where the complainant is
             an incorporeal body, evidently only an employee or
              representative can be examined on its behalf. As a result, the
             company becomes a de jure complainant and its employee or G
             other representative, representing it in the criminal proceedings,

         '    becomes the de facto complainant. Thus in every complaint,
              where the complainant is an incorporeal body, there is a
              complainant - de jure, and a complainant - de facto. Clause
              (a) of the proviso to section 200 provides that where the H
    96         SUPREME COURT REPORTS                 [2008) 16 S.C.R.


A complainant is a public servant, it will not be necessary to             +
  examine the complainant and his witnesses. Where the
  complainant is an incorporeal body represented by one of its
  employees, the employee who is a public servant is the de
  facto complainant and in signing and presenting the complaint,
B he acts in the discharge of his official duties. Therefore, it
  follows that in such cases, the exemption under clause (a) of
                                                                               1
  the first proviso to section 200 of the Code will be available.

         12. We are fortified in our view by two decisions of this
    Court. In Associated Cement Co. Ltd. vs. Keshvanand [1998
c   (1) SCC 687], this Court held as follows :

          "Chapter XV of the new Code contains provisions for
          lodging complaints with magistrates. Section 200 as the
          starting provision of that chapter enjoins on the Magistrate,
D         who takes cognizance of an offence on a complaint, to
                                                                           ~
          examine the complainant on oath. Such examination is
          mandatory as can be discerned from the words "shall
         examine on oath the complainant...". The Magistrate is
         further required to reduce the substance of such
E        examination to writing and it "shall be signed by the                     ~
         complainanf'. Under Section 203 the magistrate is to
         dismiss the complaint if he is of opinion that there is no                ;§

         sufficient ground for proceeding after considering the said
                                                                                   ,_
         statement on oath. Such examination of the complainant                    )'

         on oath can be dispensed with only under two situations,         ,__
F
         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
G
         the magistrate. Section 256 or Section 249 of the new
         Code clothes the Magistrate with jurisdiction to dismiss the      I
         complaint when the complainant is absent, which means
         his physical absence.

H        The above scheme of the new Code makes ii clear that
             NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.              97
•
--~
        -y   STATE (NCT OF DELHI) & ORS. [R.V. RAVEENDRAN, J.)

                 complainant must be a corporeal person who is capable        A
                 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     B
                 looked upon, for all practical purposes, to be the
                 complainant in the case. In other words, when the
                 complainant is a body corporate it is the de Jure
                 complainant, and it'('lust necessarily associate a human
 ~~.



lirl'            being as de facto complainant to represent the former in     c
                 court proceedings."

                                                      (emphasis supplied)
 ..j
             In Municipal Corporation of Delhi vs. Jagdish Lal [1969 (3)
         •   SCC 389], the facts were that the Delhi Municipal Corporation D
             had by a resolution authorized the Municipal Prosecutor to
             launch a prosecution under section 20 of the Prevention of Food
  ~~\
             Adulteration Act. Accordingly, one S.S. Mathur, the Municipal
             Prosecutor, filed a complaint against the respondent. The
             learned Magistrate acquitted the respondent. Section 417 of E
             the old Code provided that where an order of acquittal was
             passed in any case instituted upon complaint by the High Court
             granting special leave to appeal from the order of acquittal on
        •    an application made to it by the complainant, the complainant
             may present an appeal to the High Court. The Delhi Municipal F
             Corporation made an application to the High Court for special
             leave under section 417 against the order of acquittal. The
             application was granted. When the appeal came up for hearing,
             the respondent raised a preliminary objection that as the
             complaint had been filed by S. S. Mathur, the Municipal
                                                                             G
         )   Prosecutor, he alone was competent to file the appeal and not
             the Municipal Corporation. It was contended that as the
             application seeking leave was not filed by the complainant but
             by the Municipal Corporation, the appeal itself was not
             maintainable. The said contention was negatived by this Court.
                                                                             H
    98        SUPREME COURT REPORTS               [2008] 16 S.C.R.             I
                                                                      "-
A This Court expressed its inability to accept the contention that
  as S.S. Mathur, Municipal Prosecutor, was the complainant, the              ~iii'

  Delhi Municipal Corporation was not competent to make an
  application for special leave. This Court noted that S.S. Mathur,
  Municipal Prosecutor, filed the complaint under the authority
B given to him under the resolution of the Municipal Corporation.         {

  This Court held that in filing the complaint, S.S. Mathur was not
  acting on his own personal behalf but was acting as an agent
  of the Delhi Municipal Corporation and therefore, it must be
  deemed that the Delhi Municipal Corporation was the
                                                                              ~
c complainant in the case; and that as S.S. Mathur was only acting            '·
  in a representative capacity and as the Delhi Municipal
  Corporation was the complainant, the application for special
  leave filed by the Municipal Corporation was properly instituted.

        13. Resultantly, when in a complaint in regard to dishonour
D of a cheque issued in. favour of a company or corporation, for      '
  the purpose of section 142 NI Act, the company will be the
  complainant, and for purposes of section 200 of the Code, its
                                                                              •
  employee who represents the company or corporation, will be
  the de facto complainant. In such a complaint, the de jure
                                                                              .
E complainant, namely, the company or corporation will remain
  the same but the de facto complainant (employee) representing
  such de jure complainant can change, from time to time. And
  if the de facto complainant is a public servant, the benefit of
  exemption under clause (a) of proviso to section 200 of the
F Code will be available, even though the complaint is made in
                                                                      •"
  the name of a company or corporation.

         14. Thus, the answer to the question raised is:

  Where an incorporeal body is the payee and the employee who
G represents such incorporeal body in the complaint is a public
  servant, he being the de facto complainant, clause (a) of the
  proviso to section 200 of the Code will be attracted and
  consequently, the Magistrate need not examine the complainant
  and the witnesses.
H
      NATIONAL SMALL INDUSTRIES CORPORATION LTD. v.              99
-i"   STATE (NCT OF DELHI) & ORS. [RV. RAVEENDRAN, J.]

      The appeal is accordingly allowed, the order of the High Court   A
      is sei aside and summoning order of the Magistrate stands
      restored.

      Crl. Appeal No. 1802/2008 (@ SLP(Crl.l Nos.7276-7294/
      2007)
•                                                                      B
          Following the decision in the main matter, these appeals
      are allowed. The impugned orders of the High Court are set
      aside. The summoning orders are restored.

      K.K.T.                                      Appeals allowed.     c