Amit Kumar @APPELLANT@Hash Firm Kapoorchand Bhagchand

The present petition has been filed under Section 482 Cr.P.C. to assail the order dated 19.3.2013 passed by the Judicial Magistrate, Sambhar Lake,

District Jaipur in Criminal Case No. 15/2011 titled as Firm Kapoor Chand vs. Amit Kumar, whereby upon death of the complainant Bhagchand Jain

sole Proprietor his son Mahesh Chand Jain was brought on record as legal representative due to death of Bhagchand Jain during the pendency of the

complaint filed under Section 138 of Negotiable Instruments Act.

Briefly stated, firm Kapoor Chand Bhagchand Phulera through its sole Proprietor Bhagchand Jain son of Kapoor Chand Jain instituted a complaint

under Section 138 of N.I. Act against the petitioner Amit Kumar. After cognizance in the said complaint was taken against the accused petitioner, he

was summoned to stand trial. On 27.12.2011 Bhagchand Jain, the sole Proprietor of the above said firm expired. It happened before the service of

summons upon the petitioner was affected. The complaint continued even though the complainant had expired and same was not pronounced as

having abated. On 19.3.2013, after lapse of about one and a half year of death of Bhagchand Jain, an application was filed by Mahesh Chand Jain son

of Bhagchand Jain under Order 22 Rule 3 CPC praying that since Bhagchand Jain the sole Proprietor of the firm has died, he being son be impleaded

as Proprietor of the firm. The application so filed is annexed with the present petition as Annexure-2.

In the application Annexure-2, it is stated that Bhagchand Jain was survived by four legal heirs which included one daughter and three sons. Legal

heirs of Bhagchand Jain appointed Mahesh Chand Jain as sole Proprietor and therefore, he be brought on record as legal representative. The said

application was allowed on 19.3.2013 and after taking amended cause title on record, the case was fixed for 3.4.2013.

It may be noted here that till then, summons already issued were not served upon the accused petitioner.

In the present case, it is pleaded that after the death of Bhagchand Jain on 27.12.2011, all proceedings initiated by Bhagchand Jain came to an end and

the complaint should have been dismissed as having abated.

Mr. Jitendra Pandey, the learned counsel for the petitioner has urged that the pendency of the proceedings from 27.12.2011 to 19.3.2013 till legal

representative was brought on record are nonest and by dismissing the complaint because of death of Proprietor under Section 256 Cr.P.C. acquittal

of the petitioner should have been recorded. It is further urged that once the summons were issued to the accused, the application Annexure-2 should

not have been allowed on 19.3.2013 without affording opportunity of hearing to the petitioner. Lastly, it is urged that application was wrongly filed

under Order 22 Rule 3 Cr.P.C. as said provisions are not applicable.

I have given thoughtful consideration to the above submissions advanced by the learned counsel for the petitioner.

The arguments raised in the present petition are not new to the courts.

Supreme Court in the case of Shri Balasaheb K. Thackeray & Anr vs Shri Venkat @ Babru S/O Wamanrao, reported as 2006 (5) SCC 530, noted

the question raised in the present petition as under:-

“An interesting question as to what is the effect of the death of the complainant arises for consideration in this case. When the matter was listed

for hearing, learned counsel for the appellants submitted that the respondent no.1, who was the complainant has died and, therefore, the proceedings

initiated on the basis of said complainant do not survive. Learned counsel for the legal heirs of the complainant submitted that they propose to continue

the proceedings and file an appropriate application thereof. â€​

Having formulated the above question, the Supreme Court noted the contention of the learned counsel for the petitioner in that case as under:-

“Learned counsel for the appellants with reference to Section 256 of the Code submitted that the complaint was to be dismissed on the ground of

the death of the complainant. As noted above learned counsel for the respondent no.1's legal heirs submitted that the legal heirs of the complainant

shall file an application for permission to prosecute and, therefore, the complaint still survives consideration. â€​

Having formulated the question, noting the contention raised, Supreme Court answered as under:-

“4. At this juncture it is relevant to take note of what has been stated by this Court earlier on the principles applicable. In Ashwin Nanubhai Vyas

v. The State of Maharashtra and Anr. (AIR 1967 SC 983) with reference to Section 495 of the Code of Criminal Procedure, 1898 (hereinafter

referred to as the 'Old Code') it was held that the Magistrate had the power to permit a relative to act as the complainant to continue the prosecution.

In Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (dead) by Lrs. (2004 (12) SCC 509) after referring to Ashwin's case (supra) it was held that

heir of the complainant can be allowed to file a petition under Section 302 of the Code to continue the prosecution.

Section 302 of the Code reads as under:-

Permission to conduct prosecution (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person

other than a police officer below the rank of Inspector; but no person, other than the Advocate General or Government Advocate or a Public

Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to

which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally or by a pleader.

Recently, in Chand Devi Daga Versus Manju K.Humatani reported as 2017 AIR (SC) 5126, in warrant case while dealing with Section 249 Cr.P.C,

Supreme Court approved the ratio of law laid in the case of Shri Balasaheb K. Thackeray (supra), as under:-

“7. There is no dispute regarding facts and events in the present case. The original complainant died during the pendency of the Criminal Misc.

Petition before the High Court which was filed challenging the order of the Sessions Judge rejecting the criminal revision against the order of

Magistrate dismissing the complaint.

Section 256 of Code of Criminal Procedure, 1973 is contained in Chapter XX with the heading ""Trial of summons cases by Magistrates"".

Section 256 on which reliance has been placed provides as follows:

Section 256. Nonappearance or death of complainant.

(1) If the summons has been issued on complaint, and on the dayappointed for the appearance of the accused, or any day subsequent thereto to which

the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the

accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion

that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of subsection(1) shall, so far as may be, applyalso to cases where the nonappearance of the complainant is due to his death.

Analogous provision to Section 256 of Code 1973 was contained in Section 247 of Criminal Procedure Code, 1898. In Section 247 the proviso was

added in 1955 saying that ""where the Magistrate is of the opinion that personal attendance is not necessary, he may dispense with such attendance"".

The said proviso took out the rigour of the original rule and whole thing was left to the discretion of the Court. Subsection (1) of Section 256 contains

the above proviso in the similar manner. Thus, even in case of trial of summons-case it is not necessary or mandatory that after death of complainant

the complaint is to be rejected, in exercise of the power under proviso to Section 256(1), the Magistrate can proceed with the complaint. (Emphasis

supplied). More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120B and 201 read with 34 IPC for which

procedure for trial of summons-case was not applicable and there is no provision in Chapter XIX ""Trial of warrant-cases by Magistrates"" containing a

provision that in the event of death of complainant the complaint is to be rejected. The Magistrate under Section 249 has power to discharge a case

where the complainant is absent. The discharge under Section 249, however, is hedged with condition ""the offence may be lawfully compounded or is

not a cognizable offence"". Had the Code 1973 intended that in case of death of complainant in a warrant case the complaint is to be rejected, the

provision would have indicated any such intention which is clearly absent.

In this context a reference is made to judgment of this Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC 983. In the said

case this Court had occasion to consider the provisions of Criminal Procedure Code, 1898. The complainant had filed a complaint against the

appellants. The complaint was filed under Sections 498 and 496 IPC. Accused was summoned. However, during the pendency of the complaint, the

complainant died. The complainant's mother applied for substituting her to act as complainant and continue the proceedings. Magistrate permitted the

mother of complainant to pursue the complaint against which revision was filed before the High Court which was dismissed. Aggrieved by the order

of the High Court the appellant had come up before this Court. In the above context this Court considered the pari materia provisions of the Criminal

Procedure Code, 1898 with regard to Section 247 (now Section 256) it was specifically held that said provision does not furnish any valid analogy. In

paragraph 4 of the judgment following was observed:

4 Mr. Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 247

and 259 under which on the complainant remaining absent, the court can acquit or discharge the accused. These analogies do not avail him because

they provide for special situations. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX which deals with the

trial of summons cases by a Magistrate and Section 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the

former, if summons is issued on a complaint and the complainant on any day remains absent from the court, unless it decides to proceed with the trial,

must acquit the accused. This can only happen in the trial of cases, which are punishable with imprisonment of less than one year. This not being the

trial of a summons case but a committal inquiry, Section 247 neither applies nor can it furnish any valid analogy. Similarly, Section 259, which occurs in

the Chapter on the trial of warrant cases, that is to say cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish

no analogy. Under Section 259, if the offence being tried as a warrant case is compoundable or is not cognizable the Magistrate may discharge the

accused before the charge is framed if the complainant remains absent. Once again this section cannot apply because the Presidency Magistrate was

not trying the case under Chapter XXI.

This Court further had occasion to consider Section 495 of Code 1898 (now Section 302 of Criminal Procedure Code) and this Court laid down in

paragraph 7 as follows:

7 Mr. Keswani contends that the Presidency Magistrate has made a ""substitution"" of a new complainant and there is nothing in the Code which

warrants the substitution of one complainant for another. It is true that the Presidency Magistrate has used the word ""substitute"" but that is not the

effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power

was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which Courts are empowered (with some

exceptions) to authorise the conduct of prosecution by any person. The words 'any person' would indubitably include the mother of the complainant in

a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us

no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution.

At this stage reference to Section 302 of the Criminal Procedure Code is necessary. Section 302 of the Criminal Procedure Code is contained in

Chapter XXIV with the heading ""General provisions as to inquiries and trials"". Section 302 relates to permission to conduct prosecution which is to the

following effect:

Section 302. Permission to conduct prosecution

(1) Any Magistrate inquiring into or trying a case may permit theprosecution to be conducted by any person other than a police officer below the rank

of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be

entitled to do so without such permission:

Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to

which the accused is being prosecuted.

(2) Any person conducting the prosecution may do so personally orby a pleader.

In Para 13 of the judgment, Supreme Court relied upon case of Shri Balasaheb K. Thackeray (supra) and thereafter, held in Para 15 as under:-

“In view of what has been discussed above, we are of the view that High Court did not commit any error in allowing the legal heirs of the

complainant to prosecute the Criminal Misc. Petition before the High Court. We do not find any error in the order of the High Court. The appeal is

dismissed. â€​

A Single Judge of this Court in the case of Kishan Chand vs. State of Rajasthan, 2008 WLC 383, also relied upon the case of Shri Balasaheb K.

Thackeray (supra) and upheld the permission given to the legal representative of the deceased in complaint under Section 138 of NI Act as valid

relying upon Section 302 Cr.P.C.

In view of above legal position, it is apparent that upon death of the complainant, in a summons case, court can permit the legal representative to

continue with the complaint and thus, action of the court cannot be termed bad in the eyes of law.

So far second argument that before allowing the application, petitioner against whom summons were issued was not heard, is concerned, it is to be

noted that till today petitioner has not caused appearance before the court below even though accused was summoned through bailable warrants for

31.7.2012. Therefore, the right course for the petitioner is to appear before the trial court and file an application disputing impleadment of Mahesh

Chand Jain as legal representative of Bhagchand Jain.

Third argument that application was filed under wrong provisions, has no legs to stand as essence of application is to be seen and not the sections.

In case petitioner appears and file an application to this effect, this court has no doubt that the said application shall be decided by the trial court after

passing a detailed speaking order taking into consideration Section 256 and 302 Cr.P.C. and enunciation of law, noted above.

Thus, upholding that upon death of the complainant, complaint itself shall not abate, and the court has power to implead legal representative and permit

him to continue with the complaint, it is ordered that in case the petitioner appear before the trial court, he shall be well within his rights to dispute

impleadment of Mahesh Chand Jain as legal representative for the reasons to be stated in the application to be filed by the petitioner.

In view of observation made above, the present petition is disposed of.