Madras High Court
Indira vs Surgent Magarajan on 31 January, 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31/01/2003
CORAM
THE HONOURABLE MR. JUSTICE A. PACKIARAJ
Criminal Revision Petition No.1070 OF 2001
1.Indira
2.Yamuna
3.Arumugham ..... Petitioners
-Vs-
Surgent Magarajan ..... Respondent
Revision filed against the order dated 3.7.2001 passed in
Crl.M.P.No.3932 of 2000 in CC No.164 of 1998 on the file of Judicial
Magistrate, Ambasamudram.
!For petitioners : Mr.J.R.K.Bhavanandham
^For respondent : Mr.R.N.Kothandaraman
:O R D E R
This revision has been filed against the order passed by the Judicial Magistrate, Ambasamudram in Crl.M.P.No.3932 of 2000, dismissing the petition filed on behalf of the petitioners herein, to allow them to represent the deceased complainant, in CC 64 of 1998, as complainant.
2.It may not be necessary for me to go into the facts of the case, since the point that is involved is only in relation to the substitution of the complainant, after his demise. The circumstances under which the said petition had been filed in the l court by the petitioners are as follows:-
a)One Mr.P.S.Subbiah had filed a complaint against the respondent for having committed offence punishable under section 138 Negotiable Instruments Act, before the Judicial Magistrate, Ambasamudram in June 1998. The Magistrate had taken the sworn sta nt on 8.8.1998. Later he took cognizance of the said offence and numbered the case as CC No.164 of 1998. However it appears that the case did not proceed till 2000 and that on 12.2.2000, the complainant, P.S.Subbiah, expired. Hence a petition was filed b efore the Judicial Magistrate, Ambasamudram by the petitioners herein, namely, Indira, Yamuna and Arumugam, stating that the first two petitioners Indira and Yamuna are the daughters and legal heirs of the deceased P.S.Subbiah and Arumugam is the husband of the third petitioner. Their further case is there are 2 other legal heirs, who are the sons of the deceased and as they are out of station, the petitioners 2 and 3 are filing the said petition and they further state that since they are women and coul d not come to the court often, they had given a joint power of attorney in the name of the Thiru. Arumugam, husband of the third petitioner therein, to represent the complainant in the court and prosecute the case.
b)The respondent accused filed a counter stating that all the legal heirs have not given power to the fourth petitioner to represent the case and that the sons have not signed the power of attorney and consequently, the general power of attorney giv o the said Arumugham is not a valid one and he has no right to represent or to get himself substituted as a complainant in the said case. The learned Magistrate accepting the contention of the respondent, dismissed the said application, against which, th e present petition has been filed.
3.The learned counsel for the petitioner would urge before me that the criminal case does not abate on the death of the complaint in a summons case.
4.As a matter of fact, Section 256(1) Cr.P.C contemplates that the Magistrate can also adjourn the case even if the complainant is absent or if in his opinion, the attendance of the complainant is not necessary, the Magistrate may dispense with his ndance and proceed with the case.
5.Section 256(2) specifies that the provisions mentioned in Sub Section (1) cited supra, applies to a case where non-appearance of the complainant is due to his death. Therefore, in such circumstances, the law envisages that even on the death of th mplainant, the magistrate has power to proceed with the case in the absence of the complainant.
6.The learned counsel also brought to my notice the decision rendered in Associated Cements Co. Ltd. Vs. Keshvanand reported in 1998(1) Crimes 88 (SC). It was also a case relating to offence under Section 138 Negotiable Instruments Act and the compl nt was a "body corporate" a company and their Lordships have held that a person who filed the complaint on behalf of the company would have resigned from his job during the pendency of the trial and consequently, he may not be able to appear as complaina nt any further and in such circumstances, any other person can step into the shoes of the complainant and represent the company.
7.However, the learned counsel for the respondent contended that the observations made by the apex court would not be applied to this case, since a complaint filed by a company is totally different from a complaint filed by an individual.
8.I am afraid, I am not able to accept the argument of the learned counsel for the respondent. Though the case decided by the Supreme Court is one where the company is the complainant, the analogy is the only to the extent that "if the person who or ally represented the complaint was not available, can a third person come in his place ?" and the Supreme Court has clearly answered in the affirmative.
9.In addition to the above said decision, the learned counsel for the petitioner submitted the decision of our High Court reported in 1999 (4) Crimes 209, between Raviselvam and Nalini Vijayakumar, rendered by his Lordship A. Raman, J. It was a case re on the death of the complainant, an application by the daughter of the deceased complainant was filed to implead herself as complainant and the learned judge in para 8 of the judgment has held as follows:-
"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 further date or if for some reason he th 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 s ection 138 of Negotiable Instruments 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 up on the facts and circumstances of the case 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."
and has finally held that the daughter has a right to substitute her deceased father, the complainant.
10.Therefore, I have no hesitation to hold that in the present case, the petitioners have right to get other person substituted as a complainant, who had expired.
11.The learned counsel for the respondent next argued that since the power of attorney has been given only by two daughters, while the the other two sons have not given any power, the third petitioner Argumugam has no right to represent the complain According to the learned counsel for the respondent, the power of attorney must be given by all the legal heirs, i.e. including the sons or otherwise, Arumugam cannot represent the complainant.
12.I am not able to accept this contention also since assuming that the sons are not interested in prosecuting further and they are at loggerheads with the petitioners 1 and 2 and they do not cooperate, should the women suffer on account of the indi ent attitude of the sons ?, that cannot be the intention of the law.
13.If at all any objection could be raised, it could be done only by the sons about the maintainability of the petition filed without any particular reason as to why they have excluded them from being represented. But the sons have not objected.
14.Therefore, I set aside the order passed by the Magistrate, dismissing the application filed by the petitioners and permit Thiru.Arumugam, the power of attorney holder in respect of Tmt.Indira and Yamuna, daughters of the deceased complainant to p ed with the complaint in CC NO.164 of 1998. In the result the revision is allowed.
tar Index:Yes Website:Yes To
1.The Judicial Magistrate, Ambasamudram
2.-do- through the Chief Judicial Magistrate, Tirunelveli