Rajiv Dharampal Gursahani vs Dr. V.S. Baldawa And Ors

This petition has been filed under Section 482 Cr.P.C. against the order dated 01.02.2020 passed by Special Judge (N.I.Act Cases) Court No.4,

Jaipur Metropolitan, Jaipur, vide which the application of the accused petitioner filed under Section 256 Cr.P.C. has been dismissed.

Heard learned counsel for the petitioner and perused the material made available on record.

Learned counsel for the petitioner submits that the complainant, who filed this petition under Section 138 of the N.I. Act, has expired. There is no

provision in law to substitute his legal heirs. Still, learned trial Court has substituted the legal heirs of complainant whereupon the petitioner accused

submitted an application under Section 256 Cr.P.C. which has been dismissed in cursory manner. The facts of the complaint as well as the cheque in

question and other documents cannot be proved by the legal heirs. None of the legal heirs has been included in the list of witnesses. The petition

deserves to be allowed. Learned counsel for the petitioner has relied upon the judgments in the case of Associated Cement Co. Ltd. Vs. Keshvanand:

AIR 1998 SC 596, Pubjab & Sind Bank Vs. Vinkar Sahakari Bank Ltd. And Ors.: (2001)7 SCC 721S, . Anand Vs. Vasumathi Chandrasekar: AIR

2008 SC 1296, Shankar Finance and Investments Vs. State of Andhra Pradesh and Ors.:(2008) 8 SCC 53 6and Municipal Council, Jaipur Vs. Prabhu

Narain: AIR 1968 Raj. 297.

Heard and considered.

Without expressing any opinion on merits, suffice it to say that as per Section 256 Cr.P.C., the trial Court can dispense with the attendence of the

complainant if it is of the opinion that his personal attendance is not necessary. This provision also applies in case of non-appearance of the

complainant due to his death.

In this matter, on the death of complainant his legal heirs have been allowed to pursue the complaint in question. It is for the trial Court to decide

whether on the basis of the evidence to be adduced by the legal heirs of the complainant, the offence is proved or not. The petitioner is also free to

putforth his contentions or objections regarding admissibility or credibility of such evidence but this contention is not tenable in law that in case of death

of the complainant, his legal heirs are not entitled to continue the proceedings of the complaint. In none of the judgments cited by the learned counsel

for the petitioner, it has been held that in the case registered under Section 138, legal heirs of the complainant cannot continue the case. Thus, having

distinct circumstances, they are not of any help to the petitioner.

In view of the above, no case is made out for indulgence by this Court under Section 482 Cr.P.C.

As a result, the petition stands dismissed.