Judgment:
ORDER
1. The only question involved in this revision is whether in the trial of a summons case instituted on a private complaint, accused is entitled to an acquittal on the death of the complainant or whether a fit and proper person could be permitted to continue the complaint.
2. Few facts relevant for the disposal of this revision petition needs to be stated :
Deceased Dr. S. V. Sunkappa on December 5, 1989 through an advocate made a written complaint under S. 200, Cr.P.C. in the Court of Metropolitan Magistrate III Court), Bangalore against the respondent-accused alleging commission of an offence under S. 138 of the Negotiable Instruments Act.
It is stated that cheque No. 604458 dated October 30, 1989 for Rs. 3,75,000/- issued to him by the accused drawn on Mandya District Co-operative Bank, Naguvanahally Branch when presented for encashment through Canara Bank, Srirampuram Branch, Bangalore was bounced with endorsement 'Refer to Drawer'. The accused failed to reply or make payment despite receiving a notice sent to him both by registered post and under certificate of posting as required under the Act.
The learned Magistrate, on January 11, 1990 took cognizance of the offence, recorded the sworn statement of the complainant, registered a case in C.C. No. 2392/1990 for an offence under S. 138 of the Negotiable Instruments Act and process issued for the appearance of the accused. Summons issued on many occasions for his appearance returned unserved and after service remained absent. Therefore, non-bailable warrant was issued and in the mean time on 8-7-1991 accused appeared in Court, filed an application for re-calling the warrant and therefore warrant was re-called and the proceedings continued.
On October 29, 1991 plea of the accused recorded. The accused pleaded not guilty and therefore posted for trial by January 21, 1992. In the mean time, on January 15, 1992 complainant died and therefore from January 21, 1992 it was adjourned time and again and finally for hearing on April 3, 1992. On April 3, 1992 revision petitioner S. Reddappa son of the deceased complainant filed an application under S. 302(1), Cr.P.C. praying the Court to substituted him in place of complainant and permit him to continue the proceedings. Accused opposed the application. The learned Magistrate therefore after hearing the parties by order dated February 9, 1993 dismissed the application and acquitted the accused. Hence this revision challenging the said order of acquittal.
3. Learned counsel for the revision petitioner contended that exercise of power under S. 256 of Cr.P.C. is improper, cognizance of a summons case which was taken on a private complaint does not abate on the death of the complainant. Sub-sec. (2) of S. 256 of Cr.P.C. empowers the Magistrate in such circumstances, to consider the application and if the person is found fit and proper, to substitute him in place of complainant and permit him to continue the complaint.
Learned counsel for the respondent contended that in view of the decision of this Court in Subbanna Hegde's case, (1980) 1 Kant LJ 384 : (1980 Cri LJ 1405), the Court had no option but to acquit the respondent-accused and as such, the order cannot be disturbed.
4. An offence under S. 138 of the Negotiable Instruments Act is punishable with imprisonment for a term which may extend to one year or with fine which may extend to twice the amount of the cheque or with both, it is a summons case.
Chapter-XX of the Criminal Procedure Code consisting of Ss. 251 to 259 contemplates the procedure to be followed by the Magistrate in the trial of a summons case, whether it be on a police report or on a private complaint. S. 256 deals with the procedure to be followed by the Magistrate in case the complainant remains absent on the appointed day for the appearance of the accused or any day subsequent thereto to which the hearing may be adjourned.
Sec. 256 of Cr.P.C. reads thus :
'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 :
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 provision of sub-sec. (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.'
A plain reading makes it clear that if the complainant remains absent on the date of hearing, the Magistrate need not automatically acquit the accused, but he is vested with certain amount of discretion whether or not to adjourn the hearing and continue the complaint. Proviso to sub-sec. (1) empowers the Magistrate to adjourn the hearing if the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of the opinion that personal attendance of the complainant is not necessary, to dispense with his attendance and proceed with the case. Sub-sec. (2) says that the above provision shall so far as may be apply, where non-appearance of the complainant is due to his death.
Adjourning the hearing of the case in cases where the complainant is represented by a pleader or by the officer conducting the prosecution and application of this provision even in the case of death of the complainant was introduced in the Code of Criminal Procedure, 1973 and it was not there earlier.
5. Section 256, Cr.P.C. corresponds to S. 247 of Cr.P.C. 1898 and that section reads thus :
'Non-appearance of complainant : If the summons have been issued on complaint, and upon 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 herein before contained, acquit the accused unless for some reason he thinks proper to adjourn the hearing of the case to some other day.
Provided that where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance, and proceed with the case.'
A comparison of S. 247 of the old Code and S. 256 of the New Code makes it clear that whole of the provision contained in the provision to sub-sec. (1) and sub-sec. (2) of S. 256 were not there in S. 247, Cr.P.C. Even then several High Courts while interpreting S. 247, of the Code, 1898 said that there is no abatement of a criminal case on the death of a complainant and the case can proceed even in his absence.
However, there was divergent opinion as to what should happen to a criminal case on the death of the complainant. It is perhaps, therefore, sub-sec. (2) is introduced in the new Code saying that provisions of sub-sec. (1) shall so far as may be applied where non-appearance of the complainant is due to his death. The learned counsel invited my attention to catena of decisions on the point, rendered by several courts. Suffice it to mention the decisions of this Court in Subbamma v. V. Kannappachari, AIR 1969 Mys 221 : (1970 Cri LJ 59) and Krishnaji v. Bhimaji (1977) 1 Kant LJ 316. In those cases it is held that in such circumstances it is within the discretion of the trying Magistrate to allow the complaints to continue by a proper and fit person if the later is willing.
6. The learned Metropolitan Magistrate in making the order impugned has relied on the decision of this court rendered by a learned single Judge on March 3, 1980 in Subbanna Hegde v. Dyavappa Gowda (1980) 1 Kant LJ 384 : (1980 Cri LJ 1405) wherein it is said that on the death of the complainant the only alternative left to the Magistrate is to acquit the accused. It is also observed that the provisions of S. 256, Cr.P.C. do not empower the Magistrate automatically to make an order of acquittal in the absence of the complainant. The relevant portion reads thus (at p. 1407, para 7 of Cri LJ) :
'Though the provisions do not empower the Magistrate automatically to make an order of acquittal on the absence of the complainant, the adjournment of the case of any future date contemplated is where it is possible for the complainant to appear on the adjourned date. Where the complainant has died there being no such question of his appearing on a future date, adjournment of the case for any future date does not arise. The provisions also make it clear that the Magistrate has to either adjourn the case or acquit the accused on the very date on which the complainant is absent. It is not open to him to adjourn the case to any date and then to make an order for acquittal for the reason of the absence of the complainant when the summons has been issued for the appearance of the accused.'
In the case on hand, the complainant died on January 15, 1992, the hearing of the case was on January 21, 1992. It is seen from the notings in the order-sheet that from January 21, 1992 the hearing is adjourned to 31-1-1992, 22-2-1992, 29-2-1992, 27-3-1992 and finally to April 3, 1992. The dates would indicate that the learned Magistrate has exercised his discretion in adjourned the case from time of time till April 3, 1992 knowing that the absence of the complainant is by reasons of death, only with the object of continuing with the case even in the absence of the original complainant. It is on April 3, 1992, the revision petitioner makes an application for permission to continue the complainant expressing his willingness, being the son of the deceased complainant.
7. In A. S. Nayagam v. M. Shivakumar, ILR (1978) 2 Kant 1174, this Court on June 7, 1978 has said that the death of a complainant in a case of non-cognizable offence does not abate the prosecution and it is within the discretion of the trying Magistrate in a proper case to allow the complainant to continue by a proper and fit complainant, if the later is willing. While rendering this judgment, the court has relied on the decision of this Court in Subbamma's case (1970 Cri LJ 59) (Mys) (cited supra) and has considered the decision in the case of Krishnaji (1977 (1) Kant LJ 316) (cited supra).
An offence under S. 138 of the Negotiable Instruments Act is also non-cognizable in accordance with the classification of offences, against other laws in the first schedule of the Code of Criminal Procedure, 1973. In Subbanna Hegde's case, the complainant alleged that A-1 to 8 therein committed offences punishable under Ss. 143, 147, 149, 324, 326, 342 and 506, of IPC Offence under Ss. 143, 147, 324, 326 and 342 are cognizable.
It would appear that at the hearing of Subbanna Hegde's case (1980 Cri LJ 1405) (Kant) and the above mentioned three decisions of this court have not been brought to the notice of the Court and therefore, perhaps the object and purport of proviso to sub-sec. (1) has not been considered.
In view of the aforesaid reasons, I am of the considered view that the respondent-accused cannot derive or draw any support neither on law nor on facts from the decision in Subbanna Hegde's case (1980 Cri LJ 1405) (Kant).
8. On reading the whole of Ss. 256 and 302 of Cr.P.C. 1973, keeping in mind that a criminal case does not abate on the death of the complainant and the above three decisions of this Court, I am of the considered view that S. 256 of the Code empowers the Magistrate in a given case to permit a fit and proper person to continue the prosecution on the death of the complainant.
9. The view I take in the matter is supported by the decisions of the High Courts of Andhra Pradesh, Kerala and Calcutta.
In Maddipatta Govindaiah Naidu v. Yalakaluri Kamalamma, 1984 Cri LJ 1326, learned single Judge of the Andhra Pradesh High Court has said that criminal proceedings legally instituted do not terminate or abate merely on the death of the complainant, the cause of action for civil action bears no analogy to complainants of crime.
In T. N. Jayarajan v. Jayarajan (1992 (3) Crimes 666), Justice M. M. Pareed Pillay (as he then was) considering the scope and purport of S. 256, Cr.P.C. in a case arising out of compliant for an offence under S. 138 of Negotiable Instruments Act, has said that sub-sec. (2) of the section is intended to achieve this objective, it cannot be held that the Magistrate has no option but to acquit the accused when the complainant is dead. In other words, in appropriate cases the Magistrate can grant permission to the son of the deceased complainant to proceed with the complainant.
In Gautam Ranjan Basu v. Smt. Shanta Mukherjee, 1995 Cri LJ 1131, learned single Judge of the Calcutta High Court has said that in case of demise of the complainant there cannot be any ipso facto termination of the criminal proceedings, Magistrate has every power to allow substitution upon the demise of the original complainant if he is satisfied from the other surrounding circumstances and materials on record that such permission should be given, that satisfaction is to be subjective satisfaction derived from the records of the case and a satisfaction derived on fact available on record.
10. Here, the allegation is that the cheque issued by the accused was bounced when presented for encashment with an endorsement 'Refer to Drawer'. The important and necessary ingredients to prove are the issuance of cheque, dishonour of the cheque, issue of legal notice to the accused after it was bounced and before the complaint as required under the Act, which can be proved in the absence of the complainant by reason of his death. The complainant was represented by a pleader and continues to represent the applicant and the applicant is the son of the deceased. I am therefore of the view that the exercise of power by the learned Magistrate is not based on sound judicial principles nor on proper appreciation of facts and circumstances of the case. Hence, impugned order is not sustainable in law.
In the result, revision is allowed and the order impugned dated February 9, 1993 rejecting the application under S. 302, Cr.P.C. is set aside. Matter is remitted to the learned Magistrate with a direction to take the case on file in its original number, grant permission to the applicant and to continue the proceedings from the stage at which the interruption has occurred and to dispose of the matter in accordance with law.
11. Revision allowed.