Judgment:
(Prayer: This Criminal revision petition is filed under Section 397 read with 401 Code of Criminal Procedure, 1973, by the advocate for the petitioner, praying that this Honble Court may be pleased to set aside the order dated 20.4.2008 passed by the Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, K.R. Nagar, In C.C.No.220/2003 and the order dated 19.2.2009 passed by the I Additional Sessions Judge, Mysore in Criminal Appeal No.80/2008.)
1. Heard the learned counsel for the petitioner.
2. The petitioner was the accused before the Trial Court in a case for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act, for brevity). It was the case of the complainant that the accused had borrowed a sum of Rs.1,00,000/- on 15th November, 2002 and had promised to repay the amount on or before 30th December, 2002. In discharge of the loan, he had issued a cheque drawn on Navnagar Urban Co-operative Bank, Krishnarajanagar, Mysore District, dated 30th December 2002. When the same was presented through the complainants bank, it was returned with an endorsement that it had been dishonoured for insufficient funds in the account of the accused. Therefore, a notice had been issued under Section 138 of the NI Act and when there was failure to comply with the demand, the complaint was lodged. The same was resisted by the petitioner. However, the Trial Court held that the case of the complainant was proved and accordingly convicted the accused and sentenced him to undergo simple imprisonment for three months and to pay a fine of Rs.3,000/- and also to pay compensation in a sum of Rs.1,00,000/- under Section 357(3) of the Code of Criminal procedure, 1973 (hereinafter referred to as CrPC, for brevity). That having been carried in appeal, the Appellate Court had affirmed the judgment of the Trial Court. It is that, which is under challenge in the present petition.
3. During the pendency of this petition, the complainant-respondent is said to have died. Therefore, the learned counsel for the petitioner would contend that though an attempt was made to bring the legal representatives of the complainant on record, even though under the CrPC, he such steps are warranted, unlike under the Code of Civil Procedure, 1908 and in spite of his best efforts to ascertain the details of the legal representatives of the deceased-complainant, according to his information and knowledge, there are no surviving legal representation of the complainant, and therefore, he would submit that in terms of Section 256 CrPC, the accused may be acquitted notwithstanding the complainant had died much after the trial and sentence having been imposed on the petitioner and the same having been confirmed by the Appellate Court. It is contended that in the light of the continuing proceedings, the petitioner would have the benefit of Section 256 CrPC and the option open to this Court would be as provide thereunder, since the present case arises out of a summons case.
4. The learned counsel would further contend that the Trial Court having directed payment of compensation to the complainant and as there is no legal representative of the complainant to receive it, the obligation to pay any such compensation does not arise. Since the Trial Court has further directed payment of fine in a sum of Rs.3,000/-, should the petitioner fail in the present petition, is bound only to pay such fine. It is therefore contended that the petitioner having been obliged to deposit 50% of the compensation amount before the Trial Court in the course of these proceedings, is entitled to a refund of the same, less the fine payable in terms of the judgment of the Trial Court. The learned counsel for the petitioner would also seek to address the case on merits without prejudice to the above contention, which according to him, is a circumstance which need not require this Court to address, the merits of the case at this point of time.
5. In the present proceedings the petitioner seeks to question his conviction duly affirmed by the Appellate Court, how far is the petitioner justified in seeking to press into service Section 256 of the CRPC, would be the first point for consideration. Section 256 CrPC reads as follows:
256. 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 provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.
6. It is plain from a reading of the above, as the Section itself contains the reason, why care is exercised in deciding whether to adjourn the case or not in the absence of the complaint. Firstly, the order is passed in the absence of a person, who is vitally affected by it. Secondly, the consequences of the order are serious and once that order is made, it is no longer in the power of the Magistrate to correct the mischief even if he subsequently discovers that the complainant had very good reasons for his absence. The order being, in effect, one of acquittal, the complainant is prevented from taking fresh proceedings in support of the offence complained by him. The object of the Section, apparently, is to prevent the complainant from resorting to dilatory tactics in the prosecution of his case. But, it does not follow that in every case where the complainant is found to be absent on the date of hearing, the case should be dismissed. On the other hand, it vests discretion in the Magistrate to adjourn the hearing of the case to some other date or to proceed with the case even if the complainant is not present at the trial of a summons case. The absence of a complainant on a particular date of hearing could possibly be on account of unavoidable circumstances and therefore it is imperative that the Magistrate takes stock of the whole situation before he uses his discretion and decides upon the course to be followed. It should never be a circumstance which is treated as a short-cut for the disposal of the case. Since the provisions of sub-Section (1) of Section 256 of the CrPC equally apply where non-appearance of the complainant is due to his death, by virtue of Sub-section (2) of Section 256 CrPC, it would require the Magistrate to again take into account the facts and circumstances of each case in deciding whether he should acquit the accused or adjourn the hearing to some o ther day. From the tenor of the Section it is apparent that the Section can be pressed into service at an early stage of the proceedings commencing with the day appointed for the appearance of the accused where summons had been issued on the complaint and the hearings following it when the presence of the complainant is necessary for the effective progress of the case. The case law would also illustrate that this is the intent of the Provision.
7. In BHUPENDRA NATH BARIK v. BRAHMNACHARI GIRI AND OTHERS [1976 CRL.L.J. 552], the legal heirs of the petitioner, who had died during the pendency of a revision petition, had sought to continue the revision petition. The revision petition had been filed in the background that the petitioner had originally filed a complaint alleging fraud in respect of a sale transaction. There was also a civil case in respect of the very same transaction. The Magistrate had stayed the criminal proceedings in view of the civil suit having been filed, as the dispute in both the litigation centered around the disputed agreement. It was against that order of stay, that the revision petition had been filed before the High Court of Calcutta. The legal heirs seeking to come on record was resisted by the respondents. The High Court held that even though there is no provision under the CrPC for substitution of the petitioner, the Court, under its inherent jurisdiction could allow the said legal heirs to come on record and pursue the matter, in the ends of justice.
8. In JAYARAJAN v. JAYARAJAN [1992(2) KLT 586], a complaint was alleged under Section 138 of the NI Act. Cognizance was taken of the case by the Magistrate. The complainant, however, died soon thereafter. The complainants son filed an application seeking to prosecute the complaint. The Magistrate dismissed the application and acquitted the accused. It was challenged before the High Court. The High Court held that the trying Magistrate would have discretion in proper cases to allow the proceedings to be continued by a proper and fit complainant, relying on MAHOMED AZAM v. EMPEROR [AIR 1926 BOMBAY 178] wherein it was held as follows:
In a case on non-cognizable offence instituted upon a complaint, the axiom of action personalis moritur cum persona, in civil law confined to torts, does not apply, and the trying Magistrate has discretion in proper cases to allow the complainant to continue by a proper and fit complainant, if the latter is willing.
The Kerala High Court also drew inspiration from the 41st Report of the Law Commission of India on the question whether a complainants death ends and proceedings in a summons case, wherein it was observed as follows:
A question has arisen whether the complainants death ends the proceedings in a summons case; and we find that different views have been expressed on this question. As a matter of policy we think the answer should depend on the nature of the case and the stage of the proceedings at which death occurs. It is impracticable to detail the various situations that may arise and the considerations that may have to be weighed. We think, in the circumstances, that the decision should be left to the judicial discretion of this court, and, the legal provision need only be that death and absence stand on the same footing. We trust this will in practice work satisfactory.
This view was also adopted in SUBBAMMA v. KANNAPPACHARI air 1969 Mysore 221].
9. In SANTHI BALAGOPAL v. BENILDE AND ANOTHER [ILR 1995(3) KERALA 796] while referring to the earlier case of JAYARAJAN AND JAYARAJAN (supra), the Court was reconsidering the same at the instance of the counsel that the decision of Karnataka High Court in SUBBANNA v. DEYAVAPPA [1980 CRL.L.J. 1405] wherein a different view had been expressed. The Kerala High Court, while relying on ASHWIN v. STATE OF MAHARASHTRA [AIR 1967 SC 983], opined that there was no specific provision in the Code to the effect that on the death of the complainant, the complaint abates. What is the procedure to be adopted in the case of non-appearance of the complainant on the date of hearing due to his death is provided for in sub-section (2) of Section 256 introduced in the Code of 1973. Sub-section (1) more or less corresponds to Section 247 of the old Code. In a summons case, when the complainant is absent on the date of hearing, three courses are open to the Magistrate:
1) he may acquit the accused;
2) adjourn the case; or
3) proceed with the trial, if personal attendance of the complainant is not necessary.
10. Sub-section (2) of Section 256 CrPC provides that the provisions of Sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death. It necessarily implies that the procedure contemplate din Sub-Section (1) has to be adopted by the Court in the case of non-appearance of the complainant due to his death. In other words, the Magistrate can adopt one or the other of the three modes stated above. Adjourning the case consequent to the death of the complainant is therefore within the powers of the Magistrate. If in the meanwhile, one of the legal representatives of the deceased complainant or a fit and proper person comes forward and seeks permission to continue the proceedings, it is within the powers of the Magistrate to permit him to do so. In these cases, the Magistrate having permitted the son of the complaint to proceed with the complaint on the death of the complainant, the order was found to be in accordance with the principles laid down in JAYARAJAN AND JAYARAJAN (supra). The Court has placed strong reliance on ASHWIN v. STATE OF MAHARASHTRA (supra).
11. A Division Bench of this Court in JIMMY JAHANGIR MADAN v. MRS. BOLLY CARIYAPA HINDLEY AND OTHERS [2001(4) KCCR 2817] was dealing with a reference made by a learned Single Judge on the following three questions:
1) In a proceeding, initiated under Section 142 of the Negotiable Instruments Act, on the death of the complainant, whether any other person could be permitted to prosecute the complaint and under what provisions of Criminal Procedure Code?
2) If it is held that any person could be permitted to prosecute the complaint who is the competent person who could be permitted to prosecute the complaint?
3) Whether that person ha to prosecute the complaint personally or whether he could be permitted to prosecute the complaint through a power of attorney holder?
After discussing the case law on the point, the answers were as hereunder:
1) the complaint filed under Section 200 Criminal Procedure Code or under Section 142 of the Negotiable Instruments Act would not ipso facto terminate or abate upon the death of the complainant.
2) In a proceeding initiated under Section 142 of the Negotiable Instruments Act, on the death of the Complainant, has Legal Representatives their agents or power of attorney holder cou7ld be permitted to prosecute the complaint under Section 302(2) Criminal Procedure Code or under Section 142 of the Negotiable Instruments Act.
3) An agent or a power of Attorney holder of payee of cheque or holder in due course may be permitted to prosecute the complaint unless there is a specific bar in the Code for such persons to lodge the complaint. But once the complaint is filed by the aggrieved persons, the prosecution can be continued by the interested persons or person named above.
This, however, was questioned before the Apex Court in JIMMY JAHANGIR MADAN v. BOLLY CARIYAPPA HINDLEY [(2004) 12 scc 509]. The Supreme Court, while affirming the view taken by the Division Bench, however observed on one aspect of the matter as follows:
The language of Sections 205 and 302 of the Code is similar. Under Section 302 of the Code, a party can make an application himself to continue the prosecution or the same can be made by a pleader. As provided under Section 2(q) of the Code, the prayer to continue the prosecution can be made either by a legally qualified person, who is authorized to practise in the court under the Advocates Act; or by any other person which would obviously include a power of attorney holder in which eventually such permission can be granted by the court where the prosecution is pending only if it is sought by the person who is entitled to continue the prosecution and not by the power of attorney holder. Under Section 205 of the Code, an accused is required to appear in person but his personal appearance can be dispensed with and he can be allowed to be represented by a pleader. Likewise, under Section 302 of the Code, a person, who is entitled to continue the prosecution, is required to make an application himself but under both the provisions aforesaid, instead of taking steps personally, a party can be represented through a pleader. Power of attorney holder can represent the concerned party under both the provisions of the Code, in case permission for such representation is sought from the court by the concerned person and granted by it. But where no such permission is sought by the concerned person, meaning thereby, in the case of Section 205 of the Code an accused and in the case of Section 302 of the Code a party who has right to continue the prosecution, power of attorney holder cannot be allowed to represent the concerned person in the proceeding.
This view has been followed in the case of BALASAHEB K. THACKERAY AND ANOTHER v. VENKAT ALIAS BABRU AND ANOTHER [(2006) 5 SCC 530].
12. Thus, it is clear from the above cases that the debate as to whether the proceedings abate on the death of the complainant may not arise with reference to Section 256 CrPC when the proceedings initiated by the complainant had culminated in a judgment of the Trial Court and thereafter had been affirmed in an appeal in proceedings for an offence punishable under Section 138 of the NI Act, especially, if there was a financial obligation imposed on the accused by way of fine and compensation.
13. Section 394 of the CrPC, which provides for Abatement of Appeals in certain circumstances, and the principles governing the same which may apply to mattes in revision as well, the Section clearly excludes an appeal from a sentence of fine, from abatement, though every other appeal under the Chapter would abate on the death of the accused. Therefore, even if the petitioner, in the present case on hand, wad eat, the proceedings would not abate and it is certainly wishful thinking to contend that the petitioner would have to be acquitted on account of the death of the complainant.
14. Insofar as the further contention on behalf of the petitioner that the punishment imposed by the Trial Court insofar as the payment of fine and compensation, are under two heads and therefore are separate and distinct and there is no longer an obligation on the part of the petitioner to pay the compensation amount in the absence of a person to receive the same, is also not a contention that can be accepted. The operative portion of order of the Trial Court, which is in the Kannada language, may loosely be translated as follows
1. The accused is convicted under Section 253(3) of the CrPC read with 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for a period of two months and a fine of Rs.3,000/- and in the event of default of payment of time, he shall suffer a further simple imprisonment for a period of fifteen days.
2. Further proceeding under Section 357(3) of the CrPC and by way of compensation of entire cheque amount of Rs.1,00,000/- shall be paid as compensation and such amount shall be released in favour of the complainant on such deposit.
15. It is to be noticed that Section 138 of the IN Act does not provide for payment of compensation. It only provides for imposition of fine which may extend to twice the amount of the cheque. Therefore, the form in which the Court has proceeded to award compensation may not be in order. Section 357 of the CrPC does provides that when a court imposes a sentence of fine, the Curt may order the whole or any part of the fine to be applied in the payment to any person of compensation, if in the opinion of the Court such amount is recoverable by such a person in a civil suit. Therefore, it would have been appropriate for the Court to first of all impose a fine, which could extend to twice the amount of the cheque and out of that fine amount, compensation could have been awarded in favour of the complainant. This would have curtained any such arguments, such as are canvassed in the present petition on hand. It is also to be noticed that Section 357 of the CrPC does confer power on the Court where fine does not form a part of the sentence imposed, to order payment of compensation for any loss or injury caused by an act of the accused. In any event, whether the amount is to be treated as fine, out of which compensation is to be paid in a sum of Rs.1,00,000/- or viewed as two distinct amounts as directed by the Trial Court, it would not matter insofar as the recovery of that amount is concerned, for Section 431 of the CrPC provides that any money other than a fine payable by virtue of any order made under the Code and the method of recovery of which is not otherwise expressly provide for, shall be recovered as if it were a fine. Therefore, any technical objection as to the nature of the amount that is to be paid by the petitioner pales into insignificance. Viewed in that perspective, what has been imposed on the petitioner is a fine amount of Rs.1,03,000/-, of which, Rs.1,00,000/- shall be paid as compensation to the complaint. Therefore, the entire amount of Rs.1,03,000/- is recoverable as fine.
16. Insofar as the contention that there is no surviving legal representative is concerned, except the say of the counsel that there are no surviving legal representatives, there is no other material available to assume that there are no legal representatives of the deceased complainant. If there are no legal representatives, the amount collected as fine would remain as such with the State and if there are any legal representatives, they are entitled to seek release of the amount as compensation as directed by the Trial Court. In any event, the simplest way to make a legal representative appear would be to send a copy of this order to the Court of Civil Judge and J.M.F.C., K.R. Nagar, Mysore District, to be delivered at the last known address of the deceased complainant and await the response. The office is accordingly directed to issue a copy of this order with a further direction to the aforesaid Court to ensure the delivery of the same at the last known address of the deceased-complainant.
17. The question of permitting the petitioner to withdraw the fine amount deposited before the Court, whether called as compensation or otherwise, cannot be permitted. On the other hand, on the dismissal of this petition, the remaining amount of fine amount would have to be recovered from the petitioner. On merits, needless to say, thee is little scope for interference as the findings are concurrent findings and the defence that was set up by the petitioner does not merit consideration. It was a weak defence of the cheque having been issued in some other transaction involving a third-party, who was not even examined as a witness before the Court.
18. The Court below has though it fit to impose punishment of imprisonment as well as payment of a substantial amount by way of fine. In view of the dual punishment, i.e. imprisonment as well as payment of fine, in the opinion of this Curt, is disproportionate to the offence for which the petitioner has been convicted. The punishment of imprisonment is therefore set aside. The petition, is hence allowed in part.