cpc

can the legal heirs can be iimpleaded


In a case of NI act 138 matter if the complainant has died .can the legal heirs can be included in the criminal case
 
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Hello sir,

In a case where the accused person in a cheque bouncing case under 138 NI Act dies, the case terminates and the only remedy left with the complainant is to file a civil case against the legal heirs of the accused person where it is in limitation, as criminal liability cannot be shifted to the legal heirs of the accused person and the nature of the case under Section 138 of the Negotiable Instruments Act, 1881 is criminal, the liability of the accused cannot be shifted to the legal heirs of the complainant.

However In case of death of the complainant, Section 256 of the Code of Criminal Procedure, 1973 in Chapter XX provides for:-

Non-appearance 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

Therefore, where there is a case for cheque bouncing under Section 138 of the Negotiable Instrument Act, 1881, and the complainant dies during the case is still pending in the court for adjudication, the LRs of the complainant can move an application under Section 302 Cr.P.C. for permission to prosecute in the case.

Following are the judgements which support both the aforestated views:-

 In the recent judgement of the Supreme Court in M. Abbas Haji vs. t.n. channakeshava (2019), it was held that the "The legal heirs, in such a case, are neither liable to pay the fine or to undergo imprisonment. However, they have a right to challenge the conviction of their predecessor only for the purpose that he was not guilty of any offence. The application filed by the legal heirs to prosecute this appeal was hence allowed".

In Shankar Lal Vs. Sanyogita Devi (through LRs), The Supreme Court held that "There is no reason on principle to hold that a complaint filed by a legal heir of the original holder in due course of the cheque cannot be taken cognizance by the court. In our considered view, neither the cause of action nor the right conferred upon the holder in due course of the cheque to proceed and file complaint under Section 142 of the Act for the offence under Section 138 of the said Act comes to an end after the death of the holder in due course of the cheque".

 

Hope I was able to solve your query
Regards
Nihal

 

 
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LEGAL

No is the short answer; The criminal case is filed against the perosn and if he dies the case is clsoed just produce the DC.

But if the other party filed a recovery suit that will include and shall be filed upon those who will inherit the property of deceased 

 
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Dy Director

Legal heirs cannto be impleaded in criminal case.


Total likes : 1 times

 
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Advocate

Originally posted by : Sudhir Kumar
Legal heirs cannto be impleaded in criminal case.

Learned Exper Mr Sudhir Kumar has suggested the correct legal position, irrespective of whether the deceased person had been the complainant or the accused. 

The decision of the Apex Court in Shankar Lal Vs. Sanyogita Devi (through LRs had  been in a different context - "Whether  heir of the deceased holder in due course of the cheque can bring action on the basis of the cheque to recover the amount due thereon to the deceased holder by reason of the fact that he succeeds to the estate of the deceased holder by inheritance?". i.e whether the legal heir is a holder in due course and could file a complaint under Section 138 and not whether the legal heir could implead in place of the deceased  complainant. 

In this context, the provisions os Section 258 CrPC are explicit in that the  accused is bound to be acquitted. The provisions of Section 302 ibid are in a different context and are of no application on the question of impleadment of legal  heirs of complainant in a criminal case:

"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."

 

 
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