The Calcutta High Court has held that where a company having notice, fails to represent itself in criminal judicial proceedings, the courts must proceed with the trial without splitting the trial in terms of Section 317(2) of CrPC.
Section 317(2) prescribes that if the accused is not represented, then the Judge or Magistrate may either adjourn such inquiry or trial, or order that the case of the accused be tried separately.
Pertinently, there are certain requirements of a criminal trial like recording of plea, taking of evidence in the presence of accused and examination of the accused. However, a company accused is not competent to fulfill these requirements due to its juristic nature. Hence, Section 305(3) of CrPC stipulates that where a representative of a corporation appears, any of the aforementioned requirements of the CrPC will be performed in the presence of the representative.
In the instant case - prosecution for the offence of cheque bounce under Section 138 NI Act - the Respondents had been using this provision to delay the trial.
The Respondent company was arrayed as an accused in proceedings for dishonor of cheque under Section 138 of the NI Act. While initially it was represented before the trial court, later however the company stopped being represented by anyone. The only two directors of the company also refused to represent the company, bringing the trial to a standstill due to non-representation of the company.
Therefore, the Petitioner had approached the high court, seeking expeditious disposal of the case.
The high court noted that in spite of having due notice, the company failed to represent itself before the trial court. "This is a fit case where the corporate veil should be lifted," it said.
The court has clarified that where the non-representation of the company is deliberate, with an intention to delay the proceedings, the abovementioned requirements under Section 305(3) need not be fulfilled and the trial need not be split up in terms of Section 317(2).
To this end, reliance was placed on Section 305(4) of CrPC which prescribes that where a representative of a company does not appear, any requirement referred to under Section 305(3) shall not apply.
"Section 305(3) of the Code provides that where a representative of the corporation appears then any requirement of the Code that anything shall be done in presence of the accused or explained to the accused shall be done in the presence of such representative. This would, therefore, include the stages of taking plea, recording of evidence, examination of the accused or even delivery of judgment. Sub-section (4) of section 305 provides that where a representative of a company does not appear, any such requirement shall not apply.
Therefore, if a company refuses to be represented by anyone despite notice, in a trial one can fairly invoke section 305(4) of the Code and in such event, a trial need not necessarily be split up in terms of section 317(2) of the Code," Justice Jay Sengupta held.
The court said that the Respondents cannot be allowed to adopt unscrupulous means to protract the proceeding and evade liability.
"It seems that the accused would like us to believe in the words mouthed by a character of Charles Dickens, albeit contingently, that "law is a ass". But, I refuse to believe this. The intellect and the hard work of the framers of our laws are not so fragile as could be so easily outwitted by presumptuous manipulators trying to evade due process of law," the court remarked.
The trial court was thus directed to conclude the proceeding as expeditiously as possible without granting any unnecessary adjournment to any of the parties, preferably within six months from the next date of hearing.
"The trial need not be split up. The learned trial court is directed to proceed against all the accused, even against the accused company in terms of section 305(4) of the Code," the court directed.
Case Details:Case Title: Titec Finance Ltd. v. State Of West Bengal & Ors.Case No.: CRR 2682/2019Quorum: Justice Jay SenguptaAppearance: Advocates Pawan Kumar Gupta and Soma Chakraborty (for Petitioner); Advocate Karan Dudhwewala (for Respondents)
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