Rajasthan High Court - Jaipur
Amit Kumar vs Firm Kapoorchand Bhagchand on 17 May, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 938/2018
Amit Kumar S/o Shri Nandkishore, B/c Swami, R/o Khemdasji Ki
Bagichi, Darbar School Ke Pass, Sambhar Lake, Tehsil Phulera,
District Jaipur (Raj.)
----Petitioner
Versus
Firm Kapoorchand Bhagchand, Phulera Proprietor Bhagchand S/o
Kapoor Chand Jain (Deceased) Through His Legal Representative
Proprietor Shri Mahesh Chand Jain S/o Shri Bhagchand Jain, B/c
Jain R/o Jobner Road, Phulera, District Jaipur (Raj.)
----Respondent
For Petitioner(s) : Mr. Jitendra Pandey
For Respondent(s) :
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Order
Order Reserved: 11/05/2018
Order Pronounced: 17/05/2018
The present petition has been filed under Section 482
Cr.P.C. to assail the order dated 19.3.2013 passed by the Judicial
Magistrate, Sambhar Lake, District Jaipur in Criminal Case No.
15/2011 titled as Firm Kapoor Chand vs. Amit Kumar, whereby
upon death of the complainant Bhagchand Jain sole Proprietor his
son Mahesh Chand Jain was brought on record as legal
representative due to death of Bhagchand Jain during the
pendency of the complaint filed under Section 138 of Negotiable
Instruments Act.
Briefly stated, firm Kapoor Chand Bhagchand Phulera
through its sole Proprietor Bhagchand Jain son of Kapoor Chand
Jain instituted a complaint under Section 138 of N.I. Act against
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the petitioner Amit Kumar. After cognizance in the said complaint
was taken against the accused petitioner, he was summoned to
stand trial. On 27.12.2011 Bhagchand Jain, the sole Proprietor of
the above said firm expired. It happened before the service of
summons upon the petitioner was affected. The complaint
continued even though the complainant had expired and same
was not pronounced as having abated. On 19.3.2013, after lapse
of about one and a half year of death of Bhagchand Jain, an
application was filed by Mahesh Chand Jain son of Bhagchand Jain
under Order 22 Rule 3 CPC praying that since Bhagchand Jain the
sole Proprietor of the firm has died, he being son be impleaded as
Proprietor of the firm. The application so filed is annexed with the
present petition as Annexure-2.
In the application Annexure-2, it is stated that
Bhagchand Jain was survived by four legal heirs which included
one daughter and three sons. Legal heirs of Bhagchand Jain
appointed Mahesh Chand Jain as sole Proprietor and therefore, he
be brought on record as legal representative. The said application
was allowed on 19.3.2013 and after taking amended cause title on
record, the case was fixed for 3.4.2013.
It may be noted here that till then, summons already
issued were not served upon the accused petitioner.
In the present case, it is pleaded that after the death of
Bhagchand Jain on 27.12.2011, all proceedings initiated by
Bhagchand Jain came to an end and the complaint should have
been dismissed as having abated.
Mr. Jitendra Pandey, the learned counsel for the
petitioner has urged that the pendency of the proceedings from
27.12.2011 to 19.3.2013 till legal representative was brought on
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record are nonest and by dismissing the complaint because of
death of Proprietor under Section 256 Cr.P.C. acquittal of the
petitioner should have been recorded. It is further urged that once
the summons were issued to the accused, the application
Annexure-2 should not have been allowed on 19.3.2013 without
affording opportunity of hearing to the petitioner. Lastly, it is
urged that application was wrongly filed under Order 22 Rule 3
Cr.P.C. as said provisions are not applicable.
I have given thoughtful consideration to the above
submissions advanced by the learned counsel for the petitioner.
The arguments raised in the present petition are not
new to the courts.
Supreme Court in the case of Shri Balasaheb K.
Thackeray & Anr vs Shri Venkat @ Babru S/O Wamanrao,
reported as 2006 (5) SCC 530, noted the question raised in the
present petition as under:-
"An interesting question as to what is the effect of the death of the
complainant arises for consideration in this case. When the matter was
listed for hearing, learned counsel for the appellants submitted that the
respondent no.1, who was the complainant has died and, therefore, the
proceedings initiated on the basis of said complainant do not survive.
Learned counsel for the legal heirs of the complainant submitted that they
propose to continue the proceedings and file an appropriate application
thereof. "
Having formulated the above question, the Supreme
Court noted the contention of the learned counsel for the
petitioner in that case as under:-
"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 learned counsel for the
respondent no.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. "
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Having formulated the question, noting the contention
raised, Supreme Court answered as under:-
"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. The State of Maharashtra and Anr. (AIR 1967 SC 983) with 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 (dead)
by Lrs. (2004 (12) SCC 509) after referring to Ashwin's case (supra) it
was held that heir of the complainant can be allowed to file a petition
under 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 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:
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."
Recently, in Chand Devi Daga Versus Manju
K.Humatani reported as 2017 AIR (SC) 5126, in warrant case
while dealing with Section 249 Cr.P.C, Supreme Court approved
the ratio of law laid in the case of Shri Balasaheb K. Thackeray
(supra), as under:-
"7. There is no dispute regarding facts and events in the present case. The
original complainant died during the pendency of the Criminal Misc.
Petition before the High Court which was filed challenging the order of
the Sessions Judge rejecting the criminal revision against the order of
Magistrate dismissing the complaint.
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8. Section 256 of 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:
"Section 256. Nonappearance or death of 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:
Provided that where the complainant is represented by a pleader or
by the officer conducting the prosecution or where the Magistrate
is of 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 subsection(1) shall, so far as may be, apply
also to cases where the nonappearance of the complainant is due to
his death."
9. Analogous provision to Section 256 of Code 1973 was contained in
Section 247 of 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 original
rule and whole thing was left to the discretion of the Court.
Subsection (1) of Section 256 contains the above proviso in the similar
manner. Thus, even in case of trial of summons-case it is not
necessary or mandatory that after death of complainant the
complaint is to be rejected, in exercise of the power under proviso to
Section 256(1), the Magistrate can proceed with the complaint.
(Emphasis supplied). More so, the present is a case where offence was
alleged under Sections 420, 467, 468, 471, 120B and 201 read with 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
complainant the complaint is to be rejected. The Magistrate under Section
249 has power to discharge a case where the complainant is absent. The
discharge under Section 249, however, is hedged with condition "the
offence may be lawfully compounded or is not a cognizable offence". Had
the Code 1973 intended that in case of death of complainant in a warrant
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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 judgment of this Court in
Ashwin Nanubhai Vyas Vs. State of Maharashtra, AIR 1967 SCC 983. In
the said case this Court had occasion to consider the provisions of
Criminal Procedure Code, 1898. The complainant had filed a complaint
against the appellants. The complaint was filed under Sections 498 and
496 IPC. Accused was summoned. However, during the pendency of the
complaint, the complainant died. The complainant's mother applied for
substituting her to act as complainant and continue the proceedings.
Magistrate permitted the mother of complainant to pursue the complaint
against which revision was filed before the High Court which was
dismissed. Aggrieved by the order of the High Court 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) it was specifically held that said
provision does not furnish any valid analogy. In paragraph 4 of the
judgment following was observed:
"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 trial of warrant cases before Magistrates. Under
the former, if 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, 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
charge is framed if the complainant remains absent. Once again
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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 Code 1898
(now Section 302 of Criminal Procedure Code) and this Court laid down
in paragraph 7 as follows:
"7 Mr. Keswani contends that the Presidency Magistrate has made
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
"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:
" Section 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:
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."
(8 of 9) [CRLMP-938/2018] In Para 13 of the judgment, Supreme Court relied upon case of Shri Balasaheb K. Thackeray (supra) and thereafter, held in Para 15 as under:-
"In view of what has been discussed above, we are of the view that High Court did not commit any error in allowing the legal heirs of the complainant to prosecute the Criminal Misc. Petition before the High Court. We do not find any error in the order of the High Court. The appeal is dismissed. "
A Single Judge of this Court in the case of Kishan Chand vs. State of Rajasthan, 2008 WLC 383, also relied upon the case of Shri Balasaheb K. Thackeray (supra) and upheld the permission given to the legal representative of the deceased in complaint under Section 138 of NI Act as valid relying upon Section 302 Cr.P.C.
In view of above legal position, it is apparent that upon death of the complainant, in a summons case, court can permit the legal representative to continue with the complaint and thus, action of the court cannot be termed bad in the eyes of law.
So far second argument that before allowing the application, petitioner against whom summons were issued was not heard, is concerned, it is to be noted that till today petitioner has not caused appearance before the court below even though accused was summoned through bailable warrants for 31.7.2012. Therefore, the right course for the petitioner is to appear before the trial court and file an application disputing impleadment of Mahesh Chand Jain as legal representative of Bhagchand Jain.
(9 of 9) [CRLMP-938/2018] Third argument that application was filed under wrong provisions, has no legs to stand as essence of application is to be seen and not the sections.
In case petitioner appears and file an application to this effect, this court has no doubt that the said application shall be decided by the trial court after passing a detailed speaking order taking into consideration Section 256 and 302 Cr.P.C. and enunciation of law, noted above.
Thus, upholding that upon death of the complainant, complaint itself shall not abate, and the court has power to implead legal representative and permit him to continue with the complaint, it is ordered that in case the petitioner appear before the trial court, he shall be well within his rights to dispute impleadment of Mahesh Chand Jain as legal representative for the reasons to be stated in the application to be filed by the petitioner.
In view of observation made above, the present petition is disposed of.
(KANWALJIT SINGH AHLUWALIA),J Mak/-