(1) Any inquiry into the alleged commission of an offence must begin with the contemplation in our mind, the definition of “offence” as contained in General Clauses Act, 1897.
(2) Section 3(38) of the said Act defines it as "offence" shall mean any “act or omission” made punishable by any law for the time being in force”. The definition is quite simple to apt and does not require any elaboration.
(3) The word “act or omission” is defined in the said Act in section 3(2) as –"act", used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts done extend also to illegal omissions. This definition is also simple enough to apt, with suffice to say, that “specific act and / or omissions” attributed towards the person, would make the person liable for his alleged act and / or omissions, and mere allegations, suspicion and speculation are of no use to initiate any action in law, against any person.
(4) Then we may proceed to look at the substantive definition of the offence, which spells out as what bundle of “acts and omissions” would be deemed as commission of an offence by the person concerned.
(5) Moving little further, the alleged acts and omissions attributed towards any person, constitutes the material facts of the prosecution case; and to bring home, the guilt of the person concerned, it is suffice, if the existence of said material facts are “proved” by the prosecution, while employing the principles spelled out in the Indian Evidence Act, 1872, with the means of procedure, prescribed under code of criminal procedure, 1973. The definition of “proved” disproved” and “not proved” in the Evidence Act, assumes greatest significance in any trial.
(6) Therefore, every lawful and valid criminal complaint, whether u/s 156(3) or u/s 200 of CrPC, 1973, or FIR u/s 154, must, as far as possible, aptly spell out the bundle of “incriminating acts and omissions” attributed towards the person concerned, wherein the said acts and omissions would constitute a particular offence. Anything less than this would make the complaint unworthy to be dealt with against any person.
(7) Thereafter, the investigation by the Police, or the Inquiry by the Magistrate comes into picture, into the alleged acts or omissions, so as to collect the oral and documentary evidences against the person, who is alleged for the commission of an offence; or there may be cases where the complainant may have sufficient evidence in his hand to proceed with the case himself and may file private complaint u/s 200 of CrPC, 1973.
(8) And when there are sufficient material / evidences on record, against the person charged with, the Magistrate takes the cognizance of the “offence”, either u/s 190 r/w 173 or u/s 200 of CrPC, 1973, and issues summons or warrant, and set the criminal machinery of law into motion, for the trial of the offender.
(9) Magistrate taking cognizance of the offence, whether u/s 190 r/w 173 or u/s 200 of CrPC, 1973, would invariably imply at least three things –
(a) the existence of allegations of bundle of incriminating “acts and omissions” against the person concerned;
(b) such bundle of incriminating acts and omissions must constitute the “offence”;
(c) the existence of such material / oral and documentary evidences, which “may” prove the existence of the aforesaid incriminating acts and omissions.
(10) Every “trial”, whether civil or criminal, presupposes the existence of materials / evidences which are to be led by the parties to prove their case, and when the party who is obliged to prove his case, has no material / evidence, there can be no trial.
(11) What constitutes evidence in a criminal trial? It is –
(a) All relevant and admissible oral statements made before the court by the persons who have “witnessed the alleged incriminating acts and omissions” (section 60 of the Evidence Act should be looked into);
(b) All relevant and admissible documents,
thereby demonstrating the existence of the bundle of alleged incriminating acts and omissions of the person, to which he is charged with. At the stage of taking cognizance of the Police Report u/s 173 r/w 190, the Statements made before the Police by witnesses or by the Accused does not constitute any evidence, nor the contents of FIR, per se, has any evidentiary value. However, in a private complaint u/s 200, the statements made before the Magistrate by the Complainant or his witnesses does constitute “evidence”.
(12) Any purported “set of evidence” / materials, which fails to demonstrate the existence of alleged bundle of incriminating “acts and omissions”, ceases to be of any evidentiary value, and thus should result in the cessation of the said trial by way of acquittal; or in the said circumstances, there shall be NO “cognizance of the offence” by the Magistrate (a) on the basis of Police Report filed u/s 173 r/w section 190 of CrPC, 1973, or (b) on the complaint filed u/s 200 of the said Act.
(13) At the same time, when there are sufficient materials / evidences against the person who is alleged to have committed certain acts and omissions, constituting any offence, there is no reason for any trial to last for more than six to eight months, however, there might be exceptions as to many number of complicated cases.
(14) Whereas I have almost no practical exposures to criminal trials, but I have closely observed criminal trials involving prosecution under dishonoured cheques, i.e. 138 proceedings. The ingredients of the offence are contained in section 138 of the Negotiable Instruments Act, 1881.
(15) In the event of dishonour of a cheque issued by a “Pvt or Public Limited Company”, the said Act, u/s 141, also makes vicariously liable, all the directors of the said “Company”, the directors who were “in-charge of and responsible for the conduct of the business of the said “Company”. Therefore, if any director is to be made vicariously criminally responsible for the dishonour of the cheque, it must be “shown” that the director concerned is “in charge of the day to day affairs of the conduct of the business of the said “Company”.
(16) I have noticed that in almost every complaint filed against the “Company”, the Complainant find out the names of the directors of the Company from the Registrar of Companies (RoC), and very conveniently reproduces the wordings of the section 141, that “…… are directors of the Company and are “in charge of and responsible for the conduct of the business of the said “Company”; and thus all the directors of the Company are sought to be criminally prosecuted, based on the said mere two lines of the Complainant, however, many of them might not be associated with the day to day affairs of the business of the said Company. And, the Learned Magistrate, it is seen that, also happily issues Summons to all the said “Accused directors” based on said two lines”.
(17) We need to aptly understand the utter fallacy involved, in the issuance of Summons based on the said two lines.
(18) “The directors who were in-charge of and responsible for the conduct of the business of the said Company”, is an “ingredient of the offence” u/s 141, and is a “fact” which needs to be proved by the Complainant.
(19) The Complainant who sought to make directors as vicariously criminally responsible for the dishonour of the cheque, is obliged to allege in the Complaint, the “acts and omissions” of the concerned directors, which would prima facie show that their alleged acts and omissions would constitute the expression “in-charge of and responsible for the conduct of the business of the said Company”.
(20) The Ld. Magistrate would thereafter, while taking cognizance of the offence u/s 200 “against those directors”, would prima facie satisfy himself as to the veracity of the said alleged “acts and omissions”, and then will issue Summons against “those directors”. The Complainant thereafter, is obliged to state in his Affidavit of evidence about the existence of the said acts and omissions, and the Complainant would be then subjected to the cross examination; and thereafter the Ld. Magistrate would record his finding as to (a) whether the acts and omissions alleged, are proved; and (b) whether the acts and omissions alleged, constitute the expression “in charge of and responsible for the conduct of the business of the said Company”.
(21) Therefore, it may be noted that, recording a “finding” as to the existence or non-existence of the ingredient of the offence, is the province of the Magistrate.
(22) The province of the Complainant is to allege acts and omissions of the concerned directors, and it is absurd and unimaginable if the Complainant would record a “finding” in his complaint that …. are “in charge of and responsible for the conduct of the business of the said “Company”.
(23) In the later part of my this article, I would be dealing with various offences defined in our statute books, wherein, I would try to aptly spell out the bundle of ingredients of an offence, that is to say, I would spell out what “acts and omissions” would constitute a particular offence.
(24) In my view, once ingredients of the offence are aptly known, it would be very easy to prove or disprove any offence, probably in the shortest possible time.