Calcutta High Court (Appellete Side)
The vs Shri Venkat @ Babru on 2 April, 2013
Author: Toufique Uddin
Bench: Toufique Uddin
1
4.2013
28
C. R. R. 181 of 2005
Mr. Debasish Roy
Mr. Suman De
For the Opposite Party
This revision arose out of an order dated 8.04.2004and
12.5.2004 passed by the learned Chief Judicial Magistrate, Barasat
in Case No. 1287 of 1998 and another order dated 12.10.2004
passed in Criminal Revision No. 162 of 2004 by the learned
Additional Sessions Judge, Fast Track Court No. 2, Barasat, District
24-Paranagas (North).
In the background of this revision the fact in a nutshell is as follows :
The petitioners state that one Madhusudan Dev, filed a complaint case under
section 138 of the Negotiable Instrument Act against the present petitioners, on the
basis that one cheque, issued by the petitioners in favour of his son was dishonoured.
The said Madhusudan Dev signed all documents including the vakalatnama in his
personal name. Furthermore he has not stated in the vakalatnama that he is signing
on behalf of opposite party no. 1 as Constituted Attorney.
2
On 15.12.2003, said Madhusudan Dev died. The opposite party filed an
application stating that Madhusudan Dev was complainant but not Constituted
Attorney.
The petitioners contested the said application by filing written objection. The
learned Chief Judicial Magistrate, Barasat passed an order allowing objection of the
opposite party vide orders dated 8.4.2004 and 12.5.2004.
Being dissatisfied with the said orders, the petitioners preferred a revisional
application before the learned District Judge, Barasat. The said revisional application
was duly admitted and numbered as Criminal Motion 162 of 2004. The said case
was transferred to the learned Additional Sessions Judge, Fast Track Court, No. 2,
Barasat for disposal and the said revisional application was disposed of vide order
dated 12.10.2004.
Being aggrieved by and dissatisfied with the said order dated 12.10.2004, the
present petitioner has moved the present case on the ground that the learned
Additional Sessions Judge, Fast Track Court, Barasat has not considered the fact that
the Vakalatnama signed by Madhusudan Dev does not say that he acted as
Constituted Attorney of Opposite Party No. 1.
The learned Judge has not considered the fact that substitution cannot be done
in the present case.
3
None come on behalf of the petitioner.
The learned Advocate of the opposite party submits that practically there is nothing
to interfere with the impugned orders and further he contended that substitution is legally
permissible in a criminal proceeding and in support of his contention, the learned
Advocate of the opposite party placed before me a decision as reported in JT 2006(7) SC
44 Shri Balasaheb K. Thackeray & Anr. -vs- Shri Venkat @ Babru.
The petition dated 7.2.2004 has filed by Chayan Kumar Dev
with a prayer for permitting him to conduct the instant case in place
of deceased father Madhusudan Dev. the accused persons filed
written objection. It was contended that the petitioners have every
right to be substituted in place of his father, since deceased, to
proceed with the case for commission of offence under section 138 of
the Negotiable Instrument Act as because it is Chayan Kumar Dev
who himself advanced money to the extent of Rs. 2,25,000/- for
booking a flat with intention to purchase on 15.9.1997. The
impugned order appears to be speaking in nature. Moreover, the
accused persons was reported to have issued cheque in favour of the
original claimant Chayan Kumar Deb, who is respondent here.
It is settled principle that criminal liability to pay debt does not die down if the successor of the claimant is alive and steps into shoes of his predecessor. In case of the death of the accused, the responsibility is over. Here the case is otherwise. I gain support from the decision as referred to by the learned Advocate of the opposite party. That is JT 2006(7) SC 44 Sri 4 Balasaheb K. Thackeray & Anr. -vs- Shri Venkat @ Babru (supra) wherein it was propounded by the Hon'ble court that :
Criminal Procedure Code, 1973.
Section 302. - Criminal trial-Permission for conducting prosecution- Death of complainant- Whether the proceedings could be continued by the legal representatives of the deceased complainant. Held that for invoking Section 302 of the Code, permission of the Magistrate inquiring or trying the case ought to be obtained. If the appellants as legal heirs of the deceased complainant make an application for such permission the court dealing with the matter is to consider the same in accordance with law."
In AIR 1967 SC 983 (Ashwin Nanubhai Vyas -vs- The State of Maharastra & Anr, it was held that the Magistrate had the power to permit a relative to act as the Complaint to continue the prosecution.
In Jimmy Jahangir Madan -vs- Bolly Cariyappa Hindlay (dead) by L:rs. JT 2004(12) SC 509 it was held that heir of complainant can be allowed to file a petition under Section 302 of the Code.
Accordingly, the revision being devoid of any merit stands dismissed.
I have been given to understand that this is a very old case. This being the position, I think it expedient to pass a direction to the learned trial court to see that the trial is concluded preferably within six months from the date of communication of this order. 5
Let a copy of the judgment and lower court record be sent back to the learned court below at the cost of the opposite party as submitted by the learned Advocate of the opposite party.
Urgent Xerox certified copy of this order, if applied for, be given to the parties on priority basis.
( Toufique Uddin , J)