Himachal Pradesh High Court
Date Of Decision: 19.05.2026 vs Ankit Bajaj on 19 May, 2026
Author: Sandeep Sharma
Bench: Sandeep Sharma
2026:HHC:18400
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MMO No.548 of 2024
Date of Decision: 19.05.2026
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__________________________________________________________________________
Ram Lal .........Petitioner
Versus
Ankit Bajaj .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
of
Whether approved for reporting? Yes.
__________________________________________________________________________
For the Petitioner:rt Mr. Vinod Chauhan, Advocate.
For the Respondent: Mr. Umesh Kanwar, Advocate.
__________________________________________________________________________
Sandeep Sharma, J. (Oral)
Being aggrieved and dissatisfied with the order dated 11.03.2024 passed by learned Judicial Magistrate First Class, Court No.2, Ghumarwin, District Bilaspur, Himachal Pradesh, whereby an application filed by the respondent-complainant (hereinafter 'complainant') under Section 302 read with Section 256 Cr.P.C. in complaint No.685 of 2013, came to be allowed, petitioner-accused (hereinafter 'accused') has approached this Court in the instant proceedings filed under Section 482 Cr.P.C. praying therein to set aside aforesaid order.
2. Precisely, the facts of the case, as emerge from the pleadings, as well as other material adduced on record by the respective parties are that person namely Ram Chand, son of Sh. Puran Chand, Managing ::: Downloaded on - 23/05/2026 10:01:41 :::CIS 2026:HHC:18400 2 Director of Ankit Hire Purchase Pvt. Ltd. filed complaint under Section 138 of the Negotiable Instruments Act (for short, 'the Act') in the competent .
Court of law alleging therein that Cheque bearing No.925131 for sum of ₹1,50,000/- issued by accused towards discharge of lawful liability was dishonoured on account of 'insufficient funds' in the bank account of the complainant. Since despite his having received notice, accused failed to of make the payment good well within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act in the rt competent Court of law, but before same could be taken to its logical end, above named Ram Chand expired, as a result thereof, LRs of Ram Chand filed application under Section 302 read with Section 256 of Cr.P.C. for their impleadment on account of being LRs of deceased Ram Chand. Afore application was allowed, as a result thereof, deceased-complainant Ram Chand came to be substituted by his LRs.
3. Being aggrieved and dissatisfied with the order dated 11.03.2024 passed by learned Court below, thereby permitting the LRs of deceased complainant Ram Chand to prosecute the case further, accused has approached this Court in the instant proceedings filed under Section 482 Cr.P.C.
4. Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Vinod Chauhan, learned counsel representing the petitioner is that learned Court below has fallen in ::: Downloaded on - 23/05/2026 10:01:41 :::CIS 2026:HHC:18400 3 grave error in permitting the LRs of deceased complainant Ram Chand to prosecute the case further for the reason that complaint under Section 138 .
of the Act was filed by Ram Chand in the capacity of his being Managing Director of M/s Ankit Hire Purchase Pvt. Ltd. and as such, he could not be substituted by his LRs, rather for continuation of the proceedings, if any, under Section 138 of the Act, other Directors of the Company could have of come forward, but in no eventuality, LRs of deceased complainant could be permitted to prosecute the case further.
5. rt Mr. Umesh Kanwar, learned counsel representing respondent, while supporting the impugned order dated 11.03.2024, vehemently argued that present petition is not maintainable because appropriate remedy, if any, for laying challenge to order passed upon the application under Section 305 read with Section 256 Cr.P.C. was to file criminal revision petition in the competent Court of law i.e. before the learned Sessions Judge, Bilaspur, however, petitioner straightaway approached this Court in the instant proceedings under Section 482 of Cr.P.C. While making this Court peruse record of the learned Court below, Mr. Kanwar, learned counsel representing respondent, further argued that Cheque, which is subject matter of proceedings initiated under Section 138 of the Act, nowhere suggest that same has been issued in the name of firm, rather same was issued in the name of Mr. Ram Chand.
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6. Having carefully perused Cheque, which is subject matter of the present case, this Court finds that same has been issued in the name of .
'Ram Chand Ankit Hire Purchase'. Meaning thereby, same is not in the name of company, rather in the name of Ram Chand, who is the complainant. Whether above named Ram Chand had advanced money to accused from his account or from the account of firm Ankit Hire Purchase of Company is a question to be decided by the learned Court below in totality of evidence collected on record by the respective parties, but certainly rt having carefully perused Cheque, this Court is not persuaded to agree with Mr. Vinod Chauhan, learned counsel representing the petitioner, that same is in the name of Ankit Hire Purchase Company.
7. Had accused issued Cheque in the name of Ankit Hire Purchase Company, there was no occasion, if any, for him to write the name of Ram Chand, rather in that situation, Cheque ought to have been issued in the name of Ankit Hire Purchase. Since it is apparent from the pleadings as well as documentary evidence, especially Cheque in question, that accused with a view to discharge his liability issued Cheque in the name of Ram Chand, who, after his having filed complaint under Section 138 of the Act, passed away, no illegality can be said to have been committed by the Court below by permitting the LRs of deceased Ram Chand to prosecute the case further.
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8. In similar facts and circumstances of the case, Coordinate Bench of this Court in case tilted as Pranav Singh @ Moni Vs. Ankit .
Bajaj, i.e. Cr.MMO No.491 of 2025, upheld the order passed by the learned Court below, thereby permitting LRs of deceased Ram Chand to prosecute the case further. In afore case, accused was some other person, but complainant Ram Chand, who died during the pendency of the complaint, of is same person, as is involved in the case at hand. Coordinate Bench of this Court taking note of judgment passed by the Hon'ble Apex Court in Chand rt Devi Daga Vs. Manju K. Humatani, (2018) 1 SCC 71, held that the Court can permit the legal heirs to continue with the prosecution. Relevant Paras of judgment passed in Pranav Singh @ Moni (supra) read as under:
"8. I have given considerable thought to his submissions made at the bar and have gone through the record carefully.
9. It was laid down by the Hon'ble Supreme Court in Chand Devi Daga v. Manju K. Humatani, (2018) 1 SCC 71: (2018) 1 SCC (Cri) 264: 2017 SCC OnLine SC 1282 that the Court can permit the legal heirs to continue with the prosecution. It was observed at page 74:
8. Section 256 of the 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:
"256. Non-appearance or death of the complainant.--(1) If the summons has been issued on complaint, and on the day appointed 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:::: Downloaded on - 23/05/2026 10:01:41 :::CIS
2026:HHC:18400 6 Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution, or where the Magistrate is of the 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 sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
9. Analogous provision to Section 256 of the 1973 Code was contained of in Section 247 of the 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 rt original rule, and the whole thing was left to the discretion of the court. Sub-section (1) of Section 256 contains the above proviso in a similar manner. Thus, even in the case of a trial of summons case, it is not necessary or mandatory that after the death of the complainant, the complaint is to be rejected; in exercise of the power under the proviso to Section 256(1), the Magistrate can proceed with the complaint. More so, the present is a case where offence was alleged under Sections 420, 467, 468, 471, 120-B and 201 read with Section 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 the complainant the complaint is to be rejected. The Magistrate, under Section 249, has the power to discharge a case where the complainant is absent. The discharge under Section 249, however, is hedged with the condition that "the offence may be lawfully compounded or is not a cognizable offence".
Had the 1973 Code intended that in case of the death of the complainant in a warrant case, the complaint is to be rejected, the provision would have indicated any such intention, which is clearly absent.
10. In this context, a reference is made to the judgment of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943]. In the ::: Downloaded on - 23/05/2026 10:01:41 :::CIS 2026:HHC:18400 7 said case, this Court had the occasion to consider the provisions of the Criminal Procedure Code, 1898. The complainant had filed a complaint against the appellants. The complaint was filed under Sections 498 and .
496 IPC. The accused was summoned. However, during the pendency of the complaint, the complainant died. The complainant's mother applied for substituting her to act as the complainant and continue the proceedings. The Magistrate permitted the mother of the complainant to pursue the complaint against which a revision was filed before the High Court, which was dismissed. Aggrieved by the order of the High Court, of 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), and it was specifically held that said provision does not furnish any valid analogy. rt In para 4 of the judgment following was observed: (AIR pp. 984-85) "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 the trial of warrant cases before Magistrates.
Under the former, if the 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, it 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 ::: Downloaded on - 23/05/2026 10:01:41 :::CIS 2026:HHC:18400 8 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."
.
11. This Court further had occasion to consider Section 495 of the 1898 Code (now Section 302 of the Criminal Procedure Code, 1973) and this Court laid down in para 7 as follows: (Ashwin Nanubhai case [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943], AIR p. 985) "7. Mr Keswani contends that the Presidency Magistrate has made of 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 rt"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."
12. 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:
"302. 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:::: Downloaded on - 23/05/2026 10:01:41 :::CIS
2026:HHC:18400 9 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."
13. This Court had the occasion to consider Sections 256 and 302 in Balasaheb K. Thackeray v. Venkat [Balasaheb K. Thackeray v. Venkat, (2006) 5 SCC 530: (2006) 2 SCC (Cri) 630]. In the above case complaint was filed under Section 500 read with Section 34 IPC. A petition was of filed under Section 482 of the 1973 Code against the order of issue of process in the High Court, which was dismissed. SLP was filed in this Court in which notice was issued [Balasaheb K. Thackeray v. Venkat, SLP (Cri) No. 4367 of 2003, order dated 31-10-2003 (SC), wherein it rt was directed: "Issue notice. Mr Ravindra Keshavrao Adsure, learned counsel, takes notice on behalf of Respondent 1 and seeks two weeks' time for filing the counter-affidavit. Time prayed for is granted. One week's time thereafter is granted for rejoinder-affidavit. Stay of further proceedings."] and during the pendency of the appeal, it was noted that the complainant had died. It was contended that the complaint be dismissed on the ground that the complainant is dead. This Court, in the above context, referred to Sections 256 and 302. This Court repelled the argument of the appellant that the complaint be dismissed on the ground that the complainant had died. The following was held in paras 3 to 6: (SCC pp. 531-32) "3. The 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, the learned counsel for Respondent 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.
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. State of Maharashtra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] with ::: Downloaded on - 23/05/2026 10:01:41 :::CIS 2026:HHC:18400 10 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 [Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509: 2004 SCC (Cri) Supp 317] after referring to Ashwin case [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] it was held that heir of the complainant can be allowed to file a petition under of Section 302 of the Code to continue the prosecution.
5. Section 302 of the Code reads as under:
'302. Permission to conduct prosecution.--(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be rt conducted by any person 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.'
6. To bring in application of Section 302 of the Code, permission to conduct the prosecution has to be obtained from the Magistrate inquiring into or trying a case. The Magistrate is empowered to 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 the Government Advocate or a Public Prosecutor or Assistant Public Prosecutor shall be entitled to do so without such permission."
14. Two-Judge Bench in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley [Jimmy Jahangir Madan v. Bolly Cariyappa Hindley, (2004) 12 SCC 509: 2004 SCC (Cri) Supp 317] referring to this Court's judgment in Ashwin Nanubhai Vyas [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] had held that heirs of ::: Downloaded on - 23/05/2026 10:01:41 :::CIS 2026:HHC:18400 11 the complainant can continue the prosecution. Following was held in para 5: (SCC p. 512) "5. The question as to whether the heirs of the complainant can be .
allowed to file an application under Section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] in which case the Court was dealing with a case under Section 495 of the Code of of Criminal Procedure, 1898, which is corresponding to Section 302 of the Code. In that case, it was laid down that upon the death of the complainant, under the provisions of Section 495 of the said rtCode, the mother of the complainant could be allowed to continue the prosecution. It was further laid down that she could make the application either herself or through a pleader. Undisputedly, in the present case, the heirs themselves have not filed the applications to continue the prosecution; rather, the same have been filed by their power-of-attorney holders. ...
10. Therefore, the learned Trial Court had rightly held that the legal representative has a right to be brought on record and pursue the complaint after the death of the complainant.
11. It was submitted that the complaint was filed as the Managing Director, and it was impermissible for the applicant to be brought on record. This submission cannot be accepted. The memo of parties describes the complainant as the Managing Director; however, the averments in the complaint do not show that the money was advanced by the Company. It was specifically stated by the complainant that he withdrew the money from his account and also took some money from his home. The cheques were issued in the name of the complainant and not in the name of the Company. Therefore, the submission that the complaint was filed on behalf of the Company and it was impermissible for the applicant to come on record is not acceptable."
9. Judgment passed by the Coordinate Bench of this Court in case, detailed hereinabove, is squarely applicable in the case at hand and ::: Downloaded on - 23/05/2026 10:01:41 :::CIS 2026:HHC:18400 12 as such, objections raised at the behest of accused qua impleadment of LRs of deceased Ram Chand is not sustainable in the eye of law and as such, .
same rightly came to be rejected by the Court below while permitting LRs of deceased complainant Ram Chand to prosecute the case further.
10. Consequently, in view of the discussion made hereinabove as well as law laid taken into consideration, this Court sees no valid reason to of interfere with the well reasoned judgment recorded by the Court below and as such, same is upheld. Accordingly, the present petition is dismissed rt being devoid of any merit. Needless to say, observation made hereinabove shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. Interim order is hereby vacated.
11. Learned counsel representing the parties undertake to cause presence of their respective clients before the Court below on 15.06.2026, enabling learned Court below to proceed with the matter further. Record of the learned Court below be sent back forthwith.
The petition stands disposed of in the aforesaid terms, along with all pending applications.
May 19, 2026 (Sandeep Sharma),
Rajeev Raturi Judge
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