What happens to the case instituted before a Met. Magistrate in case of death of the Complainant in the matter of a case under S.138 of N.I.Act.
Can the Complainant be replaced by the legal heir of the Complainant?.
Or whether the action dies completely.
Any other remedy?
Don't worry man there are numerous decisions pronounced by different High courts in his line and held that the legal heirs of the deceased complainant may be substitued and may continue the complaint.
Death of complainant - Death does not ipso facto terminate the criminal proceedings more so when the son of complainant has stepped in and wanted to continue with the case. (Ajay Kumar Agarwal & Anr. Vs State of Jharkhand & Anr.) 2003(2) (Jharkhand)
Dear sir not in NI 138 cases. No body can step in the shoes of the complainant in NI 138 cases.
Please read the citations refered carefully and thereafter go though the citation below-
Can the heir of a deceased payee of a dishonoured cheque file a criminal complaint? The Bombay High Court does not think so.
The Aurangabad bench of the high court earlier this week quashed the process issued by a metropolitan magistrate’s court in Ahmednagar in August 2008 against one Vishnupat Khaire.
On September 28, 2007, Khaire had issued a cheque of Rs 3 lakh in favour of one Balbir Madhan. A few days earlier, on September 5, Madhan died in an accident.
Kailash said when he deposited the cheque on February 5, 2008, it was dishonoured.
The cheque bounced for insufficient funds. Kailash then lodged a complaint after Khaire failed to pay the amount despite a legal notice being sent.
Khaire approached the HC and argued, through is advocate that no court could take cognisance of any offence punishable under Section 138 of the Negotiable Instruments act, except if the payee of the cheque or its holder makes a written complaint. Khaire argued that Kailash was neither.
However, Kailash’s advocate argued that after Balbir’s death, Kailash had ‘stepped into his father’s shoes as payee’ and was entitled to file a complaint.
The court observed that Kailash is not the payee of the cheque nor was the financial instrument endorsed in his name by Balbir.
The court said Kailash could have filed a civil suit on the basis of the dishonoured cheque for recovery of amount.
“By the demise of payee itself, it cannot be said that any of the heirs get right to file a complaint as if he automatically enters into the shoes of the deceased payee,” observed Justice P. R. Borkar.
The court said only someone authorised by a valid legal document granted by the court could call upon the drawer of a cheque to pay the amount of dishonoured cheque.
“He will then be entitled to file complaint as he would be really entering into the shoes of the deceased payee,” Justice Borkar said while quashing the magistrate’s order.
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after death of complainaint criminal trials in negotiable instruments act will be finished by virtue of section 256 cr.p.c. . . .
The legal heirs of complainant can proceed with the complaint.
No not at all Mr Rajeev. If you disagree pl give specific provision of law.
The difference is death of the bearer of the cheque before institution of the complaint and the death after the complaint is lodged. In the later case the heirs can continue the proceedings. Because the proceeds of the cheque is the legacy left by the deceased.
well in reply to the question involve herein, I wud say that is a specific provision under the Code of Criminal Procedure, 1973, which governs the substitution of Legal Representative of the Complainant. You just need to move an application under section 302 (2) of the code of Criminal Procedure, 1973. which reads as hereunder:
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.
There is however no provision in the Code for impleading or substituting a person in place of the appellant or the complainant. But Section 302, which corresponds to Section 495 of the old Code, provides for permission to conduct prosecution. It is therefore within the power of the Court to permit any person to prosecute an appeal which is not liable to abatement on the death of the appellant.
I hope this can pacify the issue involved herein for discussion.
ANDHRA PRADESH HIGH COURT
INDIRA & OTHERS VS. SURGENT MAGARAJAN
The stage at which the case, is very critical.
Once the cognizance is taken and the case is on, the matter will not be dismissed by court on account of death of original complainant. Now if the complainant dies (or vanishes) before his cross examination, then it is quite favorable to accused, moreover substituted complainant mostly will have heresay evidence. So accused can get some benefit but no dismissal of complaint.
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