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This Product is Licensed to BANDI VARAPRASADARAO, BANDI LAW FIRM, HYDERABAD

1999 4 Crimes(HC) 69

1999 (4) Crimes 69

BOMBAY HIGH COURT
R.K. Batta. J.
Halen C. Pinheiro and Ors. -Applicants
versus
Mis. Kamaxi Steel Products through its Partner - Respondent
Criminal Misc. Application No. 136 of
1998 in Criminal Misc. Application
No. 116 of 1998
Decided on 15-1-1999
Counsel for the parties:
For the Applicants : Mr. Sudin M. Usgaonkar, Advocate.
For the Respondent: Mr. AS. Salkar, Advocate.

Criminal Procedure Code, 1973 - Section 256(2) – Accused acquitted of offence under
Section 138 of Negotiable Instruments Act by trial court - Application for leave to appeal -
Death of complainant during pendency of application - Application by legal heirs for
bringing them on record - On analogy of scope and ambit of Section 256. Cr. P.C., legal
heirs should be brought on record to prosecute leave to appeal - On death of complainant
legal heirs can be permitted to prosecute complaint In Trial Court - Application for
bringing legal heirs Is liable to be allowed. (Paras 3 and 13)

Result: Application disposed of.

Cases referred:

Subbanna Hegde and others v. Dyavappa Gowda, 1980 Cri. L.J. 1405. (Para 2)
Mahomed Azam v. Emperor, A.I.R. 1926 Bombay 178. (Para 4)
Maddipatta Govindaiah Naidu and others v. Yelakaluri Kamalamma and another, 1984 Cri. L.J.
1326. (Para 5)
Subbamma v. Kannapachari, A.I.R. 1969 Mysore 221. (Para 5)
Panchu Swaid v. Emperor, A.I.R. 1943 Patna 379. (Para 5)
Musa v. Emperor, AI.R. 1924 All. 666. (Para 5)
Narayana Naick and others v. Emperor, A.I.R. 1931 Madras 772. (Para 5)
A.R. Balasubramanian v. Palani, 1969 Cri. L.J. 1297 (Mad.). (Para 5)
Ashwin v. State of Maharashtra, A.I.R. 1967 S.C. 983. (Para 5)
Ashok Kumar v. Abdul Latif and others, 1989 Cri. L.J. 1856. (Para 6)
Smt. Mayabati Haldar v. Rent Controller, Calcutta, A.I.R. 1981 Cal. 118. (Para 6)
Om Saran and others v. Mrs. Satya Dhawan and another, 1990 Cri. L.J. 1619. (Para 7)
T.N. Jayarajan v. Jayarajan, 1992 (3) Crimes 666. (Para 8)
Anil G. Shah v. J. Chittaranjan Co. and another, II (1998) B.C. 108. (Para 9)

CRIMINAL PROCEDURE CODE : S.256(2)

IMPORTANT POINT
Legal heirs on death of complainant prosecuting complaint under Section 138 of Negotiable
Instruments Act should be allowed to be brought on record to prosecute the leave to appeal.
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ORDER

R.K. Batta, J. - The applicants have filed an application for bringing them on record as legal
heirs of deceased Michael Francis Pinheiro in proceedings for leave to appeal against order of
acquittal of respondents M/ s. Kamaxi Steel Products passed by Judicial Magistrate, First Class,
Margao in Criminal Case No. 136/N/96/II. The said Michael Francis Pinheiro had filed a
complaint regarding an offence under Section 138 of the Negotiable Instruments. Act, Judicial
Magistrate, First Class, Margao, vide judgment dated 27th April, 1998 acquitted the respondents
M/ s. Kamaxi Steel Products against which order an application for leave to appeal has been
filed. The original complainant Michael Pinheiro died after the said Judgment and after filing
application for leave to appeal. The leave to appeal was filed on 5th August, 1998 and the
appellant died on 26th August, 1998. That is how his legal heirs now wish to prosecute leave to
appeal and, for that purpose, they have filed an application for bringing them on record. This
application is opposed by learned Advocate for the respondent.

2. Learned Advocate Shri Usgaonkar appearing on behalf of the legal heirs has placed
before me a number of authorities of different High Courts on the question of bringing heirs of
complainant on record during the pendency of proceedings before the Magistrate and on the
basis of the said Judgments and drawing analogy there from it is urged that the legal heirs be
permitted to be brought on record for the purpose of prosecuting application for leave to appeal.
On the other hand. Advocate Shri Salkar, appearing on behalf of the respondents M/s. Kamaxi
Steel products after relying upon Judgment of Karnataka High Court in Subbanna Hegde (Xnd
others v. Dyavappa Gowda1, has urged that the heirs cannot be ordered to be brought on record
and the application be dismissed.

3. Learned advocate for the parties have not brought to my notice any Judgment which
would directly apply to the issue in question that is to say death of the complainant after the
proceedings end in judgment and pending leave to appeal. However. I am in agreement with
learned advocate for the applicants that on the analogy of the judgments rendered by different
High Courts on the scope and ambit of Section 256, Criminal Procedure Code the legal heirs
should be allowed to be brought on record in order to prosecute the leave to appeal.

4. The earliest Judgment to which my attention has been drawn is a Division Bench ruling of
this Court in Mahomed Azam v. Emperor2. This was a summons triable non-cognizable case
where the complainant had died during the pendency of the case before the Magistrate and it was
ruled by the Division Bench of this Court that death of the complainant does not end the
prosecution and the Magistrate can continue with fit substituted complainant and the maxim act
to personal is mortar cum persona does not apply.

5. Reliance is placed by learned Advocate for the applicants on the Judgment of the Andhra
Pradesh High Court in Maddipatta Govindaiah Naidu and others v. Yelakaluri Kamalamma and
another3. wherein while dealing with a sessions case where proceedings had been initiated on
the basis of private complaint and during pendency of inquiry under Section 202(2). Cr. P.C. the
complainant had died and widow of complainant was permitted to continue the proceeding
which was challenged in appeal it was held that there is no foundation for the proposition that
the prosecution ends on the death of the complainant in a criminal case. Criminal proceedings
legally instituted do not terminate or abate merely on the death of the complainant since the
cause of civil action bears no analogy to complaints of crime. In this case a number of Judgments
of the High Courts including that of Mysore High Court in Subbamma v. Kannapachari4; Patna
High Court in Panchu Swain v. Emperor5; Allahabad High Court in Musa v. Emperor6; Madras
High Court in Narayana Naick and others v. Emperor7; A.R. Balasubramanian v. Palant.8 and
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the ruling of this Court in Mahomed Azam v. Emperor (supra) besides the Judgment of the Apex
Court in Ashwin v. State of Maharashtra9 have been relied upon.

6. In Ashok Kumar v. Abdul Latif and others10, Jammu and Kashmir High Court has held
that the death of the complainant cannot ipso facto bring about termination of proceedings and
the Magistrate is authorised to exercise powers by substituting another person or prosecution
agency for conduct of criminal case. It was further held that merely on the death of the
complainant, the complaint filed by the complainant cannot be dismissed nor the accused
acquitted or discharged under Section 247 or Section 259, Criminal Procedure Code. Reliance in
this Judgment was placed on the J4dgment of Calcutta High Court in Smt. Mayabati Haldar v.
Rent Controller, Calcutta11 and Apex Court Judgment in Ashwin v. State of Maharashtra
(supra).

7. In Om Saran and others v. Mrs. Satya Dhawan and another12, Delhi High Court has laid
down that the Legislature has vested discretion with the Magistrate to decide, keeping in view
the facts of each case, as to whether on nonappearance of the complainant or on the death of the
complainant in a summons case, the accused should be acquitted or not and if he, for good
reasons, thinks it proper, the Magistrate can proceed with the complaint and adjourn the matter
in the absence of the complainant or when the complainant has died. In this case the Judgment of
the Karnataka High Court in Subbanna Hegde v. Dyavappa Gowda (supra), upon which reliance
has been placed by learned advocate for the respondents has been distinguished.

8. In T.N. Jayarajan v. Jayarajan13, the Kerala High Court while dealing with a case under
Section 138 of the Negotiable Instruments Act has laid down that in appropriate cases the
Magistrate can grant permission to the son of the deceased complainant to prosecute the
complaint. In this case reliance has been placed on the decisions of the Division Bench of this
Court in Malwmed Azam v. Emperor (supra) and that of the Mysore High Court in Subbamma v.
Kannapachari (supra) and the views of Law Commission in its 41st report which read thus:

"A question has arisen whether the complainant's death ends the proceedings in a summons
case; and we find that different views have been expressed on this question. As a matter of
policy we think the answer should depend on the nature of the case and the stage of the
proceedings at which death occurs. It is impracticable to detail the various situations that may
arise and the considerations that may have to be weighed. We think, in the circumstances, that
the decision should be left to the judicial discretion of the court, and, the legal provision need
only be that death and absence stand on the same footing. We trust this will in practice work
satisfactorily.

9. There is another case under Section 138 of the Negotiable Instruments Act which has
dealt with the Issue relating to the death of the complainant in such matters and this Judgment is
of the Gujarat High Court in Anil G. Shah v. J. Chittararyan Co. and another14. In this case also
it has been laid down that in a case under Section 138 of the Negotiable Instruments Act, 1881
where the complainant dies after taking of cognizance the proceedings do not abate and trial has
to be taken to the logical end following due process and procedure laid down in Criminal
Procedure Code. It has been held that there is no provision in the Code of Criminal Procedure or
the Negotiable Instruments Act laying down that on account of death of payee the trial must
abate and as such the proceedings cannot abate on the death of the complainant payee. Therefore,
the legal heirs of the original complainant are entitled to come forward and ask for their
substitution in place of the complainant so as to proceed further with the trial. In this case also
reliance has been placed on Judgments of Kerala High Court in T.N. Jayarajan v. Jayarajan
(supra). Jammu and Kashmir High Court in Ashok Kumar v. Abdul Latif and others (supra) and
Andhra Pradesh High Court in Maddipatta Govindaiah Naidu and others v. Yelakaluri
Kamalamma and another (supra).
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10. Thus, the overwhelming opinion of various High Courts reflects that on the death of the
complainant the legal heirs can be permitted to prosecute the complaint in the trial Court.

11. The offence under Section 138 of the Negotiable Instruments Act is non-cognizable and
the procedure to be followed is summons case procedure. Section 256. Criminal Procedure Code
would come into play incase of nonappearance or death of the complainant during the trial.
Section 256. Criminal Procedure Code reads thus:

"256. Non-appearance or death of complainant. - (1) If the summons has been is sued 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 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.

Section 256. Criminal Procedure Code confers discretion on the Magistrate to proceed with
the trial in the absence or death of the complainant. Where the complainant is represented by
pleader/officer conducting the prosecution or where the Magistrate is of the opinion that the
personal attendance of the complainant is not necessary, he is empowered to dispense with
attendance and proceed with the case. The same analogy in principle has to be extended in a case
where the complainant has died after the final disposal of the criminal case ending in acquittal
and after filing leave to appeal and where the legal heirs of the complainant on account of the
death of the complainant wish to prosecute the remedy of leave to appeal against acquittal.

12. We pave to bear in mind that the concept of locus standi has undergone considerable
change and the well settled principle in criminal law is that any person can set the law in motion.
Moreover, sub-section (2) of Section 256, Criminal procedure Code was introduced with purpose
that due to the death of a complainant the proceedings do not come to an end automatically but
discretion in the matter is given to the Magistrate which has to be exercised in terms of Section
256, Criminal Procedure Code. In an application for leave to appeal personal presence of the
deceased appellant is not required. Moreover even though there is provision contained in Section
394, Criminal Procedure Code for abatement of appeal in case of death of the accused, there is
no provision of abatement of the case on the death of the complainant.

13. For the aforesaid reasons, I do not find any merit in the submission advanced by learned
Advocate Shri Salkar on behalf of the respondent Kamaxi Steel Products. The application for
bringing heirs of original complainant Michael Pinheiro has, therefore, to be granted. The said
application is, accordingly, granted and the legal heirs are permitted to be brought on record for
the purpose of prosecuting leave to appeal by them. Amendment in the title be carried out in the
leave to appeal, Leave to appeal be now placed for hearing. Application stands disposed of.

Application disposed of.

1. 1980 Cri. L.J. 1405.

2. A.I.R. 1926 Bombay 178.

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3. 1984 Cri. L.J. 1326.

4. A.I.R. 1969 Mysore 221.

5. A.I.R. 1943 Patna 379.

6. A.I.R. 1924 All. 666.

7. A.I.R. 1931 Madras 772.

8. 1969 Cri. L.J. 1297 (Mad.).

9. A.I.R. 1967 S.C. 983.

10. 1989 Cri. L.J. 1856.

11. A.I.R. 1981 cal. 118.

12. 1990 Cri. L.J. 1619.

13. 1992 (3) Crimes 666.

14. II (1998) B.C. 108.