NI Act, Complainant died

SATYANARAYANA K (Querist) 21 November 2010 This query is : Resolved
Complainant filed a case U/s 138 of NI Act, before the court, case is running, complainant died.

My quarries are

1. Now what will be the case position

2. Is legal heir come into existence or not

3. please mention with section of law or citations

waiting for your valuable replies

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A V Vishal (Expert) 21 November 2010
1.Section 138 - Complainant - Death during pendency of proceedings - Not necessary that legal heirs or legal representatives only can continue the proceedings - A fit and proper person can be permitted to prosecute the petition. (Sebastian Vs State of Kerala) 2004(2) CIVIL COURT CASES 05 (Kerala) = 2004(2) CRIMINAL COURT CASES 223 (Kerala)

2. Section 138 - Complainant - Death during pendency of proceedings - Sister - Can be allowed to continue the proceedings when legal heirs do not chose to come on record to prosecute the petition. (Sebastian Vs State of Kerala) 2004(2) CIVIL COURT CASES 05 (Kerala) = 2004(2) CRIMINAL COURT CASES 223 (Kerala)

3. Section 138 - Complainant - Death of - Complaint does not ipso facto terminate or abate upon death of complainant - Where complainant is dead, his legal representative, agent or power- of- attorney holder can be permitted to prosecute complaint. (Jimmy Jahangir Madan Vs Mrs.Bolly Cariyappa Hindley) 2002(1) CIVIL COURT CASES 539 (Kant.) : 2002 (1) ISJ (BANKING) 0200

4. Section 138 - Death of complainant - Substitution of L.R's - Can be allowed if Magistrate is satisfied from material on record and other surrounding circumstances that such permission should be given. (Raviselvam Vs Nalini Vijayakumar) 2001(1) CIVIL COURT CASES 467 (Madras)

5. Section 138 - Dishonour of cheque - Death of complainant - Son of complainant who is successor to the business must be deemed to be "holder in due course". (Ajay Kumar Agarwal & Anr. Vs State of Jharkhand & Anr.) 2003(2) CRIMINAL COURT CASES 600 (Jharkhand)

6. Section 138 - Revision against conviction - Death of complainant during pendency of revision - L.R's allowed to be brought on record as financial benefit has accrued by order of conviction. (Mohinder Dutt Sharma Vs Bhagat Ram) 2002(2) CIVIL COURT CASES 280 (H.P.) = 2002(2) CRIMINAL COURT CASES 297 (H.P.)

7. Section 138 - Death of complainant - In appropriate cases the Magistrate can grant permission to the son of the deceased complainant to proceed with the complaint. (Jayaranjan Vs Jayaranjan) 1993 (SUPPL.) CIVIL COURT CASES 718 (Kerala) : 1993 ISJ (BANKING) 0328 : 1992 (2) BANKING CASES 0574 : 1995 (82) COMP. CASES 0629 : 1995 BJ 0703 : 1993 (2) CRIMES 0666

8. Section 138 - Death of complainant - Proceedings do not ipso facto terminate or abate - Magistrate can allow substitution if satisfied from surrounding circumstances and materials on record that such permission should give given - son allowed to be substituted as complainant. (S.Reddappa Vs M.Vijaya) 1997(1) CIVIL COURT CASES 248 (Kant.) : 1997 (4) ALL INDIA CRIMINAL LR (KARNATAKA) 0160 : 1998 (2) BANKING CASES 0609 : 1997 (2) CRIMES 0272 : 1997 (1) CCR 0631

sachin sethi (Expert) 21 November 2010
agreed with Mr. Vishal..

DEFENSE ADVOCATE.-firmaction@g (Expert) 21 November 2010
These are all old cases and no more law , those who want to rely on citations must go through recent judgements.

On 6.12.2004 SC in civil appeal no 6790 of 2003 has passed following order :-

In the case of Dr.Pradeep Mohanbay Vs. Minguel Carlos
Dias reported in 2000 Vol.102 (1) Bom.L.R.908, the Goa Bench of
the Bombay High Court held that a power of attorney can file a
complaint under Section 138 but cannot depose on behalf of the
complainant. He can only appear as a witness.
However, in the case of Humberto Luis & Anr. Vs. Floriano
Armando Luis & Anr. reported in 2002 (2) Bom.C.R.754 on which
the reliance has been placed by the Tribunal in the present case, the
High Court took a dissenting view and held that the provisions
contained in order III Rule 2 of CPC cannot be construed to disentitle
the power of attorney holder to depose on behalf of his principal.
The High Court further held that the word "act" appearing in order III
Rule 2 of CPC takes within its sweep "depose". We are unable to
agree with this view taken by the Bombay High Court in Floriano
Armando (supra).
We hold that the view taken by the Rajasthan High Court in the
case of Shambhu Dutt Shastri (supra) followed and reiterated in the
case of Ram Prasad (supra) is the correct view. The view taken in
the case of Floriano Armando Luis (supra) cannot be said to have
laid down a correct law and is accordingly overruled.