Who is the original complaianant?
AMAR RANU
(Querist) 08 October 2011
This query is : Resolved
In a private criminal complaint,filed by a corporate body through its chairman.In such a scenario who is original complainant-the said chairman or the said corporate body?
Later on, said chairman was substituted with current and new chairman in the said criminal proceedings involving the said private complaint before a Magistrate court.
But the former and substituted chairman filed application u/s 302 of Crpc and his application was allowed by the said trial court to appear in the said proceedings in his personal and individual capacity.
Now the said former and substituted chairman is claiming to be the original complainant and creating problems in the settlement and compounding of the said proceedings,filed by the said corporate body.
Citation or authority on this vital issue shall be highly appreciated.
Guest
(Expert) 08 October 2011
Under company law, a company is a person and legal body. So, in a legal case if filed for and on behalf of the company, only the corporate body is treated as the original complainant, may that be represented by any of its duly authorised employee.
However, the duly authorised prosecuting Officer under Sec.302 CrPC would have his sole discretion to take assistance from the previous chairman, who originally filed the case, to clearly understand the background of the case to proceed further in the trial of the case.
Arun Kumar Bhagat
(Expert) 08 October 2011
But the former and substituted chairman filed application u/s 302 of Crpc and his application was allowed by the said trial court to appear in the said proceedings in his personal and individual capacity.
----Make it clear who filed 302 petition former representative or substituted representative ?
After answering this query I shall give my reply.
Raj Kumar Makkad
(Expert) 08 October 2011
Arun! Anyone can imagine that substituted person might have filed such application.
I agree with the opinion of Dhingra ji and suggest you to replace substituted person as representative of company as he is not fit in the present set of circumstances and is harming the interests of company. A fresh application under section 302 Cr. PC may again be moved in the aforesaid case for his replacement.
Shailesh Kumar Shah
(Expert) 08 October 2011
Please answer:-
1.what is the complain?
2.is Board resolution passed?
prabhakar singh
(Expert) 08 October 2011
A body corporate is an artificial juristic person and can be sued and can sue,but some human hand is needed to act on its behalf ,hence there are board of directors managing its affairs by resolution etc.In your particular case if the substituted chairman is not acting in the interest of company in the complaint he can be removed by a resolution and some one other can be given charge to prosecute the complaint to safegaurd the interest of the company.
Govind
(Expert) 08 October 2011
to clear out u'r thought must check out Mannath Balchandran vs. Forbes Forbes Campbell & Co. Ltd. 1996 CrLJ2131(Bom.)
But as u say in u'r case former person will be complainant until company directors by resolution given him the power to proceed or complaint on behalf of company.
And for more information must read out Section 302 Cr.P.C. which clearly indicate
302(2) Any person conducting the prosecution may do so personally or by a pleader.
prabhakar singh
(Expert) 09 October 2011
The following observation is of interest to note from Mannath Balchandran vs. Forbes Forbes Campbell & Co. Ltd. 1996 CrLJ2131(Bom.)
"It is true that the power of attorney given by the complainant company came to an end as soon as the company amalgamated itself with the new company. Even without power of attorney any person who is acquainted with the facts of the case can enter the witness box and give evidence. There is no necessity for a power of attorney at all to give evidence in Court. We must bear in mind that P.W. 1 was a responsible officer holding the position of Assistant Secretary in the complainant company. Now in the new company after amalgamation he is the General Manager."
AMAR RANU
(Querist) 09 October 2011
Mannath Balchandran vs. Forbes Forbes Campbell & Co. Ltd. 1996 CrLJ2131(Bom.) referred by our learned friend Mr.Prabhakar Singh is somewhat put the issue to the edge of solution but main contention of the aforesaid citation is appearance of the former representative after amalgamation of the company with new company.
In my case,a former chairman,who has been removed and substituted with new chairman,has reappeared in the said proceedings in his personal capacity u/s 302 of Crpc and claiming to be the original complainant.
To solve this issue,a firm and clear authority is required to refute his locus as original complainant.
AMAR RANU
(Querist) 09 October 2011
The alleged offense is a compoundable offense u/s 406 of IPC.
Guest
(Expert) 09 October 2011
SKJADVT,
What is new in your post, as you have just confirmed my views about the complainant.
Since you consider as an expert in law, I just pose some questions to you. Please answer that and show your expertise:
1) You have pointed out that the questioner has not mentioned about offence. If he makes a mention of the offence, can you change the definition of original complainant with reference to the company?
2) Being expert in law, you have mentioned the company as an "UN-NATURAL" person. Please quote the relevant section of relevant act in which the term "un-natural" has been used for a company?
3) You have also mentioned in your reply, "WHEN NEW OWNERS" COME. Just intimate whom do you consider the new owners and when new owners come?
4) Further, you have stated, "will of the company as expressed by its owners." just intimate who are the real owners of a company?
