Madras High Court
Raviselvam vs Nalini Vijayakumar on 20 July, 1998
Equivalent citations: [2000]102COMPCAS76(MAD), 1998(2)CTC647
ORDER
1. This revision is directed against the order passed by the learned Principal Sessions Judge, Chengalpattu in Crl. Revision Petition No.12 of 1997, on 21.1.1998.
2. The father of the respondent filed a criminal complaint under Section 138 of the Negotiable Instruments Act against the petitioner herein as the accused. The complaint is to the effect that the petitioner herein, in discharge of his existing liability, handed over a post-dated cheque, which on presentation was dishonoured on the ground that payment was stopped. During the pendancy of the complaint, the complainant died leaving behind him his daughter, who filed an application before the Judicial Magistrate No.2, Kancheepuram, under section 256(2) of Cr.P.C., praying that she may be permitted to proceed with the complaint and represent the complainant till the disposal of the case. The said petition was dismissed by the Judicial Magistrate, whereupon the daughter of the complainant preferred a Revision Petition No.12 of 1997. The Revision was accepted by the learned Principal Sessions Judge, Chengalpattu and therefore, aggrieved by the said decision, the accused has preferred this Revision.
3. Learned counsel for the petitioner would submit that under Section 256 of Cr.P.C., the Magistrate has no option but to dismiss the complaint and that there is no provision to allow the complaint to be prosecuted after the death of the complainant by permitting someone on behalf of the complainant to proceed with the same. It is therefore necessary to refer to Section 256 of Cr.P.C. which reads as follows:-
"Section 256(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, 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.
Section 256(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.
Thus the section leaves three courses open to the Magistrate. (1) The first case open is that on the date fixed for hearing, if the complainant is absent, he may acquit the accused. (2) He can adjourn the case to a future date, or (3) He can dispense with the attendance of the complainant and proceed with the case in his absence.
4. Section 256(2) makes it clear that 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. Therefore, in a case where the complainant is dead, and the case is posted for hearing, it is open to the Magistrate to follow any of the courses as indicated above. After taking the stock of the situation and considering the facts and circumstances of the case, he can exercise his discretion by dismissing the complaint and acquitting the accused; or he can adjourn the case to a future date. He can also dispense with the attendance of the complainant and proceed with the case in his absence.
5. In this case, the non-appearance of the complainant is due to his death. The section empowers the Magistrate to proceed with the case by adjourning the case to a future date and by empowering the Magistrate to dispense with the attendance of the complainant and proceed with the case in his absence. Thus, it is the discretion that has to be exercised by the Magistrate concerned. It is to be pointed out that it is a complaint filed under Section 138 of the Negotiable Instruments Act. It is not a private complaint under provisions of the Indian Penal Code, where it can be stated that the presence of the complainant is necessary and that it is essential that he should be examined as a witness. Section 138 of the Negotiable Instruments Act provides that where a cheque drawn by a person on an account maintained by him, issued to another person from out of that account towards discharge, in whole or in part of any debt or other liability, its returned by the bank unpaid, such person shall be deemed to have committed an offence and without prejudice to any of the provisions of this Act, shall be punished with imprisonment for a term which may be extend to a period of one year or with fine which may be extended to twice the amount of the cheque, or with both. The proviso reads that section 138 will come into play only if three conditions are satisfied. The first conditions that the cheque must be presented to the bank within a period of six months from the date of which it is drawn or within the period of its validity, whichever is earlier. The second condition is that the payee or the holder in due course of the cheque, as the case may be shall make a demand for the payment of the said amount of money by giving a notice, in writing to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer must make payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque, within 15 days of the receipt of the said notice. Section 139 of the Negotiable Instruments Act makes it clear that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge in whole or in part of any debt or other liability.
6. Here the complaint is to the effect that the accused handed over a cheque in discharge of a subsisting liability, and the cheque on presentation was returned 'unpaid', and notice was given in compliance with the provisions of the Act and no payment was made within the stipulated period under the Act. Thus, in the context and the nature of complaint and the provisions of the Act, it follows, in such cases, it can never be stated that the presence of the complainant is a must or that it can never be dispensed or that his evidence is essential for the purpose of establishing the facts set out in the complaint. Therefore, in cases of this nature, which is governed by the documents, the presence of the complainant and his evidence can never said to be sine-quo-non. Such a complaint can be pursued by a person on behalf of the complainant and it cannot cause any prejudice to the accused.
7. Now, we have to see in the context of the nature of the complaint and the provisions of Section 138 and 139 of the Negotiable Instruments Act, whether in the circumstances of the case, the non appearance of the complainant due to his death, in a case of this nature which is a summons-case, will bring down the curtain on the proceedings and whether the proceedings can be allowed to continue against the accused.
8. I have already referred to the fact that Section 256 of Cr.P.C. does not say that the only course open to the Magistrate is to dismiss the complaint. It gives the Magistrate an option to adjourn the case to a future date or if for some reasons he thinks that it is proper that the personal attendance of the complainant is not necessary, may dispense with his attendance and proceed with the case. Added to that, we have the further fact that it is a complaint filed under the Special Enactment Act, under Section 138 of the Negotiable Instrument Act, where it can never be stated that the presence of the complainant is essential to prove the guilt of the accused. Thus, it is a proceeding, which can be conducted and proceeded for and on behalf of the complainant by a third party without any detriment to the accused concerned. Therefore, it cannot be taken as a rule of law that the only course open to the Magistrate in such a case i.e., on the death of the complainant, is to acquit the accused. It would depend upon the facts and circumstances of each case. The endeavour must be to do Justice and not to take advantage of technicalities. The urge to resort to easy way out must give way to judicial justness.
9. In my opinion, there is nothing to bar the prosecution to be conducted by proper person in the place of a deceased/complainant in proper cases. From the wording employed in the Section, I will take the view that the death of a complainant ipso facto would not lead to termination of criminal proceedings. The Magistrate has power to allow the substitution if he is satisfied on the very materials on record and other surrounding circumstances that such permission should be given. In the decision reported in 1947 (1) Cal. 99.
where the brother of the complainant, who was equally interested in the complaint, after the death of the complainant, permitted by the Court to pursue the proceedings. It would also be helpful to refer to the following decisions, 1980 (2) Crl.L.J. 2363, 1995 (1) Crl.L.J.1131,1993 Crl.L.R.Cal 131.
The above cases would lend support to the view I have taken. Subsection 2 of Section 256 Cr.P.C. reads that the provisions of sub-section (1) shall, so far as may be, apply to cases, where the non-appearance of the complainant is due to his death. Section 256 empowers the Magistrate to acquit the accused or to adjourn the case to a future date or to dispense with the attendance of the complainant and proceed with the case in his absence. Therefore, I am of the view, that the death of the complainant does not bring about an automatic termination of the criminal proceeding and that the Magistrate has got sufficient powers to allow the substitution on the death of the original complainant, if he is satisfied from the materials on record and from the circumstances to do so. In this case on hand, the person applied to be substituted is none other than the daughter of the original complainant and she is a fit person to further prosecute the complainant. It can't also cause any injustice to the accused.
10. Therefore, in such circumstances, the order passed by the learned Principal Sessions Judge, permitting the substitution and allowing the respondent herein to proceed further with the complaint, is in my opinion, an order that cannot be interfered with at all. The order passed is quite tenable in law and permissible on facts.
11. In the above circumstances, this Revision is dismissed, confirming the order passed by the learned Principal Sessions Judge, Chengalpattu. In view of the order passed in the main Revision, Crl.M.Ps.1854 and 1855 of 1998 shall stand dismissed.