Rajmal Agarwal vs Dinesh Sahu

S.K. Palo, J.—Appellant is dead. Heard on I.A. No. 786/2015, an application for substituting the L.Rs. of appellant.

Briefly stated the facts are that the complainant''s case was filed by Rajmal Agarwal against the respondent before the learned JMFC, Vidisha in the Criminal Case No. 1000/2006, decided on 26-7-2010. The learned Trial Court acquitted the respondent under Section 138 of the Negotiable Instruments Act. Therefore, this appeal filed by the appellant-Rajmal Agrawal. During the pendency of this appeal, the complainant/appellant-Rajmal Agrawal died on 27-12-2014 at Vidisha. Applicant-Ashok Kumar Agrawal has filed the present application along with the death certificate of Rajmal Agrawal and a ''Will'' stating that he is the legal representative of the deceased/appellant-Rajmal Agrawal. Therefore, his name be substituted in place of the appellant.

The respondent opposed the same on the ground that the applicant-Ashok Kumar Agrawal is not the legal heir of the appellant and one daughter of Rajmal Agrawal is alive.

It is submitted by the Counsel for the applicant that Rajmal Agrawal has a daughter but after her marriage, she is living in her in-laws house. The "Will" dated 31-3-1997 duly registered has been executed by the deceased Rajmal Agrawal in presence of two witnesses, hence, the applicant is the legal representative of the deceased/appellant-Rajmal Agrawal.

Heard the rival contentions of the parties.

The document death certificate and the registered "Will", prima facie show that the applicant-Ashok Kumar Agrawal is the legal representative of the deceased appellant-Rajmal Agrawal.

In Helen C. Pinheiro and Others Vs. Kamaxi Steel Products, (2000) CriLJ 1622 , it is held that "the Magistrate is competent to proceed with the complaint even where complainant died during pendency of complaint".

In Aseem Shabanli Merchant Vs. Brij Mehra and Another, (2005) 11 SCC 412 , it is held that "in prosecution for offence under Section 138 of the Negotiable Instruments Act, on the death of the complainant, the Court would allow his son to conduct the prosecution and appoint a Counsel of his choice".

Similarly, in Anil G. Shah Vs. J. Chittranjan Co. and Another, (1998) 2 ALD(Cri) 71 : (1999) 97 CompCas 371 : (1998) CriLJ 3870 : (1998) 1 GLR 303 , it is held that "in prosecution under Section 138 of the Negotiable Instruments Act, on the death of the complainant, proceedings do not abate, dismissal of the complaint is not proper".

It is true that the appellant is dead. It is also true that prima facie a registered will is executed in favour of the applicant Ashok Kumar Agrawal. Therefore, it is sufficient in a criminal case to infer that the applicant is a legal representative of the appellant.

The maxim actio personalis moritur cum persona has no application to criminal prosecution. The death of the complainant cannot ipso facto bring the termination of the proceedings. That being so, this Court has no hesitation to allow the present application and to substitute name of the applicant-Ashok Kumar Agrawal, as the appellant, for further prosecuting the criminal appeal. Accordingly, I.A. No. 786/2015 is allowed. Amendment be incorporated accordingly.

Case be listed for final hearing in due course.