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Adv.Sanjiv Deshpande (Proprietor)     30 August 2010

Death of a Complainant in the matter of 138 of N.I. Act.

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?



 12 Replies

Jebaraj Jasper Jacob (Advocate)     30 August 2010

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.

Sameer Sharma (Advocate)     30 August 2010

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)

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     31 August 2010

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.



1 Like

harshit saxena (student)     31 August 2010

 after death of complainaint criminal trials in negotiable instruments act  will be finished by virtue of section 256 cr.p.c. . . .

Rajeev kulshreshtha (advocate)     01 September 2010

The legal heirs of complainant can  proceed with the complaint.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     02 September 2010

No not at all Mr Rajeev. If you disagree pl give specific provision of law.

Deekshitulu.V.S.R (B.Sc, B.L)     04 September 2010

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.

Adesh Kumar Sharma (Senior Associate Lawyer)     06 September 2010

Hi Friends,


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.

Thanks

Attached File : 35 35 prosecution after death of complainant.doc downloaded: 517 times

R Trivedi (advocate.dma@gmail.com)     03 April 2012

 

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.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     04 April 2012

This is a part judgment , read the whole judgement as I have given above of Bombay High court.

The basic rule any body can not step in.

 

And even in AP citation above the accused will get relief since there will be no deposition of any witness who has personal knowldege of the offense.

R Trivedi (advocate.dma@gmail.com)     05 April 2012

As on date following is the legal status with respect to substitution of complainant..

 

1. For a non proprietorship firm (that is company, partnership firm etc), the company can authorise any substitution on account of death or retirement or resignation. There is no bar that such authorsied person should have personal information of the matter, as employees who were involved in the transactions are or can be made witness. It is better for prosecution if such person has personal information otherwise he can depose for the matter involving general transaction of the firm/company.

 

2. For properietorship firm a person who has carried out transaction under POA can be made as complainant. In general no other person can be sunstituted as complainant but still some trial courts are proceeding based on SPA, I am not aware of any ruling or citation barring SPA in case of prop firms.

 

3. In case of cheques in the name of a person, on the death of complainant, his legal heirs can step in if the case is already initiated and the original complainant has deposed infront of the court. If death takes place after the cross examination of complainant then certainly it is not fatal to the case. If the cheque itself is deposited after the death or notice is sent after the death, then even legal heirs cannot proceed. Now the grey area is what if the death has taken place after the complaint is filed and before the cross examination of the complainant.

 

4. For that matter there are lot of loopholes in the way cases  under S.138 are handled and invariably they assist the accused.

Satish Mishra   21 April 2019

The current stand is yes, the Legal heirs of the complainant can be substituted in the NI 138 cases.


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