M. Venkateswara Reddy, J.
1. All these three petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 by one T. Sai Prasad, who is the sole accused in C.C. Nos. 230, 229 and 264 of 2004 on the file of the Judicial Magistrate of First Class, Dharmavaram respectively, seeking quashing of the complaints in all the three cases.
2. All the three cases arose under Section 138 of the Negotiable Instruments Act (for short 'the Act'). The original complainants in C.C. Nos. 230 of 2004 and 264 of 2004 was one Chennappa. After filing of the complaints, he died on 7.8.2004. While in C.C. No. 229 of 2004 the complainant is one Ranga Sreenivasulu, who is the son of the above said deceased Chennappa. In the C.C. Nos. 230 and 264 of 2004 the above said Ranga Sreenivasulu came on record as the legal representative of the deceased Chennappa as per the orders dated 12.10.2004 made in Criminal Miscellaneous Petition No. 3392 of 2004 (in C.C. No. 230 of 2004) and Criminal Miscellaneous Petition No. 3392 of 2004 (in C.C. No. 264 of 2004). Copies of the said orders were not filed along with the criminal petitions. Only at the instance of the Court, the order made in Criminal Miscellaneous Petition No. 3392 of 2004 is supplied to the Court. The docket order discloses that the legal representative petition was allowed granting permission to continue the proceedings to Ranga Sreenivasulu without notice to the accused.
3. The detailed facts of the cases are not necessary for the purpose of the disposal of the three petitions, suffice to say that as the cheques issued by the accused, the petitioner herein (hereinafter referred to as 'the accused') were dishonoured, the proceedings were initiated under Section 138 of the Act.
4. The point that is urged before me is that the order under which Ranga Sreenivasulu was substituted as the complainant without notice to the accused is not sustainable and therefore the proceedings that were initiated by the deceased in the C.C. Nos. 230 and 264 of 2004 become abated.
5. Though it is not argued by the learned Counsel for the accused before me, in the petition it is urged that in the event of the death of the instrument holder the proper course of action left open is filing of suit for recovery of money under Order 7 Rule 1, C.P.C., but not bringing the legal representative on record. The deceased filed the complaint in C.C. No. 230 of 2004 on 13.7.2004 and the complaint in C.C. No. 264 of 2004 on 20.7.2004. It appears that his son came on record in both the cases as per the order, dated 18.10.2004 made in Criminal Miscellaneous Petition Nos. 3392 of 2004 and 3393 of 2003 respectively. The petitions in Crl. M.P. Nos. 3392 and 3393 of 2004 were taken on file on 7.10.2004. As already stated above, only the order in Crl. M.P. No. 3392 of 2004 is filed, but it is admitted that orders were passed in both the criminal miscellaneous petitions on the same day. It is also not disputed that the son of the deceased came on record after cognizance of the offence in both the complaints filed by the deceased was taken.
6. The points that arise for consideration are:
(1) Whether the proceedings in C.C. Nos. 230 of 2004 and 264 of 2004 ipso facto came to an end or could be continued by the son of the deceased?
(2) Whether permitting the son of the deceased to proceed with the trial of the C.C. Nos. 230 of 2004 and 264 of 2004 on behalf of the deceased complainant is unjust or amounts to abuse of the process of the Court?
Point No. 1:
7. As already stated the son of the deceased came to be added as the complainant subsequent to the taking cognizance of the offences in the two C.Cs. viz. C.C. Nos. 230 and 264 of 2004. The third C.C, C.C. No. 229 of 2004, was instituted against the accused by the son of the deceased only. Therefore, the first point confines to the above two C.Cs. filed by the deceased Chennappa.
8. The offence under Section 138 of the Act is punishable with imprisonment for a term which may extend to two years. Therefore, it is triable as a summons case. The offence is also non-cognizable. Though the Code of Criminal Procedure, 1973 provides for the death of the accused, it does not provide, expressly, for the death of the complainant. It also does not provide for the abatement of the enquiries and trials on the death of the complainant, although it provides for the abatement on the death of the accused. Both the C.Cs are private complainants. They did not arise out of charge-sheets filed by the police. A question similar to the case that arose in the case before me was considered by the Supreme Court as long back as in the year 1967 in Ashwin Nanubhai Vyas v. State of Maharashtra : 1967CriLJ943 , of course, it was not a case under Section 138 of the Act. A private complaint was filed under the Code of Criminal Procedure, 1878 (old Code) by one Kusum Vithal Abhyankar charging the accused with offence punishable under Sections 417, 493 and 496 of the Indian Penal Code. Unfortunately, Kusum died of heart attack after the accused was summoned to the Court. The Kusum's mother applied to the Court for substitution as a fit and proper complainant in the case. An objection was raised by the accused stating that only the aggrieved person could be the complainant and on Kusum's death the complaint must be treated as abated. The Presidency Magistrate, however, rejected the said objection and decided to proceed with the complaint with Kusum's mother as the complainant. A revision was preferred by the accused before the Bombay High Court and it also ended in rejection. Therefore, the matter went to the Supreme Court. The Supreme Court ruled as under:.Mr. Hathi, who appeared on behalf of the State of Maharashtra, drew our attention to many later cases in which it has been held (dissenting from the cases relied upon by Mr. Keswani) that a criminal complaint does not necessarily abate on the death of the complainant even in those cases where the making of the complaint by the person aggrieved is made a condition precedent by the Code. We need not analyse those cases because, in our opinion, unless the Code itself says what is to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found) under Section 495 of the Code of Criminal Procedure is always available. Reference may, however, be made to the following : Emperor v. Nurmohammed (1908) 9 Crl. LT 190 (Sind), Emperor v. Mauj Din AIR 1924 Lah. 72 : ILR 4 Lah 7, U. Tin Maung v. King AIR 1941 Rang 202, Muhammed Azam v. Emperor AIR 1926 Bom. 178 and in re Ramasamier AIR 16 Crl. LJ 713(1). None of the cases cited either for the one side or the other directly arose under Section 198 first part in a committal proceeding. The later view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itself says that on the absence of the complainant the accused must be either acquitted or discharged. The present is not one of those cases and in our judgment the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, and under Section 495 the mother may continue the prosecution herself or through a Pleader. We see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of a complainant when all that the Section 198 requires is the removal of the bar. The appeal fails and it will be dismissed.
9. Thus, the Supreme Court held that the mother of the deceased complainant can carry on the prosecution after the death of her daughter under Section 495 of the old Code.
10. Section 495 of the Code of Criminal Procedure, 1898 corresponds to Section 302, Code of Criminal Procedure, 1973. The above ruling was followed by the Supreme Court in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley (dead) by LRs. : 2005CriLJ112 . The question before Their Lordships was whether the heirs of the complainant can be allowed to file an application under Section 302, Cr.P.C. to continue the prosecution. While confirming the principle laid down in Ashwin Nanubhai Vyas case (supra), on facts of the said case, the Apex Court held that the heirs themselves have not filed the application to continue the prosecution, rather the same has been filed by the power of attorney holders and such course is not permissible.
11. The Andhra Pradesh High Court also had an occasion to decide a similar question in Maddipatta Govindaiah Naidu and Ors. v. Yelakaluri Kamalamma and Anr. 1984 Crl. L.J. 1326. In the said case the father of the complainant was murdered. Police after investigation referred the case as undetectable. Then, the son filed a private complaint for the offences punishable under Sections 302 and 392 of the Indian Penal Code against the same accused persons against whom the case was registered by the police. The case was taken on file as private P.R.C. The sworn statement of some of the witnesses were recorded. Then, the complainant died. The widow of the complainant filed a petition to permit her to continue the prosecution of the case. The question as to whether on the death of the complainant in a criminal case, does the prosecution abate was considered by His Lordship with reference to a catena of decisions. His Lordship followed Ashwin Nanubhai Vyas (supra) case and came to the conclusion as under:
11. On an examination of all the relevant provisions of the Criminal Procedure Code and the Judicial precedents on the question, the proposition that criminal proceedings abate on the death of the complainant appears to be legally unfounded and unacceptable. Criminal proceedings legally instituted do no terminate or abate merely on the death of the complainant. The cause of action for civil action bears no analogy to complaints of crime.
12. In this case criminal proceedings were legally initiated by Venkata Ramaiah Naidu on 30.12.1982, before the Judicial Magistrate of 1st Class, Vayalapadu, against the accused in PRC No. 1 of 1983. Merely on the death of the complainant Venkata Ramaiah Naidu on 1.5.1993 the prosecution does not abate.
12. The Madras High Court in Indira and Ors. v. Sargent Magarajan III (2003) BC 573 : 2003(2) ISJ (Banking) 537, followed and ruling of the Supreme Court in Associated Cements Co. Ltd. v. Keshavanand 1998(1) Crimes 88, where in the later case the complaint was filed on behalf of the company and the person who represented the company in the said case resigned and another person stepped into the shoes of the complainant, it was held that another can step into the shoes of the complainant who resigned. The decision of the Madras High Court in Raviselvam v. Nalini Vijaykumar 1999(4) Crimes 209, was also quoted with approval in the Indira case above mentioned. The following passage from Raviselvam case can be noted.
I have already referred to the fact that Section 256 of Cr.P.C. does not say that the only course open to the Magistrate is to dismiss the complaint. It gives the Magistrate an option to adjourn the case to a further date or if for some reason he thinks that it is proper that the personal attendance of the complainant is not necessary may dispense with his attendance and proceed with the case. Added to that, we have the further fact that it is a complaint filed under the Special Enactment Act under Section 138 of Negotiable Instruments Act, where it can never be stated that the presence of the complainant is essential to prove the guilt of accused. Thus it is a proceeding, which can be conducted and proceeded for and on behalf of detriment to the accused concerned. Therefore, it cannot be taken as a rule of law that such a case i.e., on the death of the complainant is to acquit the accused. It would depend upon the facts and circumstances of each case. The endeavour must be to do justice and not to take advantage of technicalities. The urge to resort to easy way out must give way to judicial justness and has finally held that the daughter has a right to substitute her deceased father, the complainant.
13. The Act is a special enactment, as has been pointed out by Their Lordships. In the present cases before me, the two complaints by the deceased were filed under the Act, which is a Special Enactment. The technicalities should subserve the ends of justice.
14. Reference can also be made to a decision of the Kerala High Court in T.N. Jayarajan v. Jayarajan 1992(3) Crimes 666 and also a ruling of the Gujarat High Court in Anil G. Shah v. Chittranjan Co. and Anr. II (1998) BC 108 : II (1998) CCR 506 : 1998(2) ALD (Cri.) 71 (Guj.). Both cases arose under the Act and in the first case when the complainant prosecuting the complaint under Section 138 of the Act died, it is held that permission can be granted to his son to proceed with the complaint. In the latter case it is held that Legal Representatives of the drawee are entitled to continue the prosecution on the death of the drawee and the proceedings do not abate.
15. Thus, in view of the clear legal position, as stated above, the objection that the son of the deceased cannot come on record and continue the prosecution cannot be sustained. The point is answered accordingly holding that the proceedings in C.C. Nos. 230 of 2004 and 264 of 2004 ipso facto do not come to an end and could be continued by the son of the deceased.
Point No. 2:
16. It is admitted case that the son came on record before the notices in the main case were received by the accused. Addition of the legal representative in the main proceedings to continue prosecution would not in any way jeopardize the interests of the accused once the son is entitled to come on record. The son coming on record would not in any way affect the case of the accused. The learned Counsel for the accused could not point out any provision of law under which the notice is necessary when the legal representative is added even before the notice was served on the accused. The object of issuance of notice is to afford an opportunity to the opposite side to put forth objections if any. In the case on hand, there cannot be any objections to the son to come on record in view of the settled legal position. Still if any objections are there, the accused can raise the same in the C.Cs. It is not as though the doors are permanently closed to the accused. No injustice has been caused to the accused in permitting the son of the deceased to proceed with the trial of the C.Cs. in C.C. Nos. 230 and 264 of 2004.
17. In C.C. No. 229 of 2004, no arguments are advanced, in fact, in all the three matters the learned Counsel for the accused concentrated on point No. 2 only. The criminal petitions are liable to be dismissed.
18. In the result, the criminal petitions are accordingly dismissed.