Himachal Pradesh High Court
Pranav Singh @Moni vs Ankit Bajaj on 22 July, 2025
( 2025:HHC:23618 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 492 of 2025 .
Reserved on: 11.07.2025 Date of Decision: 22nd July, 2025.
Pranav Singh @Moni ...Petitioner
Versus
Ankit Bajaj ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No For the Petitioner : Mr. Umesh Kanwar, Advocate.
For the Respondent : Nemo.
Rakesh Kainthla, Judge
The present petition is directed against the order dated 01.04.2025 passed by the learned Judicial Magistrate First Class, Court No.2, Ghumarwin, District Bilaspur (learned trial Court) vide which the application filed under Section 302 read with Section 256 of the Code of Criminal Procedure (Cr.P.C.) was allowed. (Parties shall hereinafter be referred to in the same manner as they are arrayed before the learned Trial Court for convenience.) ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 2 ( 2025:HHC:23618 )
2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the .
learned Trial Court against the accused for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short 'NI' Act). It was asserted that the complainant is running a business in the name and style of Ankit Hire Purchase Pvt. Ltd., Ghumarwin. He is the Managing Director of the company. The accused visited the business premises of the complainant on 11.02.2016 and borrowed a sum of ₹11,50,000/-. The complainant withdrew ₹10,00,000/- from his account maintained in the Dadhol Agricultural Service Co-
operative Society, Padyalag, Tehsil Ghumarwin, District Bilaspur, H.P., took ₹ 1,50,000/- from his home, and paid them to the accused on 11.02.2016. The accused assured to return the amount and issued two different post-dated cheques to the complainant. The complainant presented these cheques in his account, but they were dishonoured with the remarks "insufficient funds". The accused failed to pay the amount despite receipt of a valid notice of demand. Hence, a complaint was filed against the accused for taking action as per the law.
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3. The complainant died during the pendency of the complaint, and an application was filed before the learned Trial .
Court for substitution of his legal representatives. It was asserted that the complainant is survived by his two sons, Parkash Chand and Ankit Bajaj, and his wife, Soma Devi. Ankit Bajaj intended to pursue the complaint. Hence, a prayer was made to substitute him as the complainant.
4. The application was opposed by filing a reply taking preliminary objections regarding the lack of maintainability, the applicant having concealed the material facts from the Court, the applicant having not come to the Court with clean hands, and the applicant being estopped to file the application by his acts, conduct, commissions and omissions. It was asserted that the complaint was filed by deceased Ram Chand as Managing Director of Ankit Bajaj Pvt. Ltd. after obtaining permission from the Reserve Bank of India. The application was not filed after taking any such permission; hence, the application was not maintainable. The other legal representatives have not issued the No Objection Certificate (NOC) in favour of the applicant; therefore, it was prayed that the application be dismissed.
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5. The learned Trial Court held that Section 256 read with Section 302 entitled a legal representative to come on .
record. There is no period of limitation for filing the application.
One of the legal representatives could pursue the complaint. The complaint did not disclose that it was filed by the company, and there was no bar to the substitution of the legal representative.
Consequently, the application was allowed, and the applicant was substituted as the legal representative of the complainant.
6. Being aggrieved by the order passed by the learned Trial Court, the accused has filed the present petition, asserting that the order passed by the learned Trial Court is not sustainable in the eyes of law. There is no provision to file the application at a belated stage. The application was barred by the limitation, and each and every day's delay was not explained. A material prejudice was caused to the accused by allowing the application. The complainant was pursuing the complaint as the Managing Director of Ankit Bajaj Fire Pvt. Ltd., and there is no provision for the substitution of a person as the Managing Director; therefore, it was prayed that the present petition be allowed, and the order passed by the learned Trial Court be set aside.
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7. Mr. Umesh Kanwar, learned counsel for the petitioner-accused, submitted that the complainant had filed .
the complaint in the capacity of the Managing Director of the company. The applicant cannot substitute himself as the Managing Director. Learned Trial Court erred in allowing the application; therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. r
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 ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 6 ( 2025:HHC:23618 ) 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:
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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 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 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 ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 7 ( 2025:HHC:23618 ) 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.
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10. In this context, a reference is made to the judgment of this Court in Ashwin Nanubhai Vyas v. State of Maharash- tra [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943]. In the 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 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 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 ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 8 ( 2025:HHC:23618 ) 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.
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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, 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 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 ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 9 ( 2025:HHC:23618 ) 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."
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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:
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 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 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 ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 10 ( 2025:HHC:23618 ) 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 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 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 ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 11 ( 2025:HHC:23618 ) 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 Nanub- hai Vyas [Ashwin Nanubhai Vyas v. State of Maharashtra, AIR 1967 SC 983: 1967 Cri LJ 943] had held that heirs of 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 Nanub- hai 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 Criminal ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 12 ( 2025:HHC:23618 ) 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 Code, 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 it 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 ::: Downloaded on - 22/07/2025 21:22:16 :::CIS 13 ( 2025:HHC:23618 ) impermissible for the applicant to come on record is not acceptable.
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12. It was submitted that there is a delay in filing the application, and the learned Trial Court erred in allowing the application. This submission cannot be accepted. There is no period of limitation for bringing the legal representatives on record, and the application could not have been dismissed as barred by limitation.
13. No other point was urged.
14. In view of the above, there is no infirmity in the order passed by the learned Trial Court. Hence, the present petition fails in same is dismissed.
15. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. Pending miscellaneous applications, if any, also stand disposed of accordingly.
(Rakesh Kainthla) 22 July 2025 nd Judge (Ritu) ::: Downloaded on - 22/07/2025 21:22:16 :::CIS