K. Chathukutty and ors. Vs. K.S. Prasanna Venkitesan and anr. - Court Judgment

K. Padmanabhan Nair, J.

1. This appeal is filed by the complainant in C. C. No. 396/1995 on the file of the Chief Judicial Magistrate, Thalassery challenging the judgment passed by the Court below acquitting the respondent.

2. Petitioner filed a private complaint alleging that respondent borrowed an amount of Rs. One lakh and issued Ext. P1 cheque on 25-6-1995 in discharge of that legally recoverable debt. Appellant presented the cheque for collection on 19-5-1995 through Mamtaaram Branch of the Syndicate Bank. Cheque was dishonoured with an endorsement that the account was closed. It was also alleged that respondent had no sufficient funds also in the account maintained by him with the bank. Notice was issued demanding repayment of the amount covered by Ext. P1 cheque. Respondent issued Ext. P8 reply denying his liabilities. Hence the complaint alleging that respondent committed offences punishable under Section 138 of the Negotiable Instruments Act and Section 420 of Indian Penal Code.

3. When respondent appeared before learned Magistrate copies of relevant documents were furnished to him. After recording statements of complainant and witnesses charges under Section 138 of the Negotiable Instruments Act and Section 420 of Indian Penal Code were framed against respondent. Charges were read over and explained to him. He understood the same and pleaded not guilty. On the side of complainant PWs 1 to 3 were examined. Exts. P1 to P8 proved and marked. After prosecution evidence was over respondent was questioned under Section 313 of Criminal Procedure Code. He denied all incriminating circumstances brought against him. No defence evidence was adduced.

4. Learned Magistrate after considering evidence adduced by the appellant found that he failed to establish charges levelled against respondent and acquitted him. Challenging the order of acquittal complainant has filed this Criminal Appeal after obtaining special leave.

5. Appellant-complainant died on 24-11-1999. On 19-7-2006 the widow and children of deceased appellant tiled Crl. M. Appln. No. 6984/2006 to implead them as additional appellants. They filed Crl. Appln. No. 6985/2006 to set aside abatement and Crl. M. Appln. No. 6983/2006 to condone delay in filing the petition to set aside abatement. The applications were opposed. Applications were heard by a learned single Judge of this Court on 11-9-2006. Reliance was placed on a decision of this Court in Sebastian v. State of Kerala : 2004(1)KLT457 . Learned Counsel appearing for respondent contended that in view of the principles laid down in Jayarajan v. Jayarajan 1992 (2) KLT 586 and Santhi Balagopal v. Benilde 1995 (2) KLT 488 : 1996 MHC 1721 dictum laid down in Sebastian's case (supra) requires reconsideration. Learned single Judge felt that matter requires an authoritative pronouncement and referred the matter to be heard by a Division Bench. Accordingly the matter was placed before this Bench.

6. There is no provision in the Cr. P.C. to implead the legal representatives of a party to a criminal ease pending before any criminal Court. There is no prevision for letting aside abatement or condoning the delay as there is no provision is made for filing a petition for impleading the legal representatives or any period of limitation is prescribed.

7. In a case instituted on a police report there is no question of any abatement. Even if de facto complainant dies while case is pending before Magistrate or before Sessions Judge, as the case may be, no question of abatement arises because trial is conducted by the prosecutor. He will take necessary steps to procure the presence of witnesses. In trial of warrant cases instituted otherwise than on a police report if complainant is absent and charges are not framed a Magistrate may discharge the accused under Section 249 of Criminal Procedure Code.

8. Section 249 of Criminal Procedure Code reads as follows:

249. Absence of complainant.- When the proceedings have been instituted upon complaint, and on any day fixed for the hearing of the case, the complainant is absent and the offence may be lawfully compounded or is not a cognizable offence, the Magistrate may, in his discretion, notwithstanding anything hereinbefore contained, at any time before the charge has been framed, discharge the accused.

A reading of Section 249 of Cr. P.C. shows that Section is attracted only if the case tried can be lawfully compounded and not cognizable. The Section only deals with absence of complainant. There is no reference regarding the death of complainant. But it is to be noted that the absence of complainant may be due to his death also. A discretion is given to the Magistrate and that discretion has to be exercised judiciously. Magistrate shall take into account facts and circumstances of each case and pass orders which advance the cause of justice. Provisions of Section 249 can have no application if charges are framed before the death of the complainant.

9. Section 256 of Criminal Procedure Code deals with non-appearance or death of complainant in the trial of a summons case. It 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.

10. A reading of Section 256(1) of Criminal Procedure Code makes it clear that it is not mandatory that the Magistrate shall acquit the accused because of the non-appearance of complainant. Magistrate can adjourn the hearing of the case to some other day after recording the reasons. So, a reading of the Section makes it clear that even if the complainant dies the Magistrate can adjourn the hearing of the case.

11. In Ashwin v. State of Maharashtra : 1967CriLJ943 a Three Judge Bench of the Supreme Court held that though the Court cannot substitute a new complainant it has got power under Section 495 of Criminal Procedure Code, 1898 (old Code) to authorise conduct of prosecution by any person. In C.M. Stephen v. John Manjooran 1970 KLT 545 a learned single Judge of this Court following the principles laid down in Ashwin's case (supra) held that if complainant dies during the pendency of a proceedings before the Magistrate, Court can permit a fit and proper person to prosecute the same. In Jayarajan's case (supra) another learned single Judge of this Court took a view that Court has got power to grant permission to the son of deceased complainant to proceed with the complaint. In Santhi Balagopals case 1996 AIHC 1721 (supra) another learned Single Judge of this Court held that on the death of complainant complaint can be continued by his legal representatives, In Sebastian's case (supra) learned single Judge followed the principles laid down in Santhi Balagopal's ease (supra) and observed that it is not at all necessary that a person should apply to come on record to continue the proceedings, It was further held that even without that if the learned Magistrate cheeses to fellow the third of the three options available, there is no impropriety or illegality, In Balasaheb K. Thackeray v. Venkat 2006(3) KLT 509 SC the Supreme Court held that the legal heirs can continue the proceedings after getting permission from the Court.

12. The learned Counsel appearing for the petitioners has argued that if the case is instituted on police report, the Investigating Officer will take necessary steps to procure the presence of the witnesses. It is argued that in a case instituted on a complainant, it is for the complainant to take steps to secure presence of witnesses and Magistrate will not be able to cite witnesses and examine them. It is pointed out that the authority of the Advocate who was appearing for the complainant to prosecute the proceedings will come to an end while his client passes away. It is argued that there will not be any person to take steps to secure the presence of witnesses and examine them in chief. So, even if the case is posted for trial it will not serve any useful purpose. It is also argued that Section 259 of Criminal Procedure Code only confers power to the Magistrate to adjourn the case and not to proceed with the trial of the same. It is argued that Magistrate cannot assume the role of prosecutor and a fit and proper person shall come forward to prosecute the proceedings. It is argued that such a person can be permitted to continue prosecution only with the permission of the Court as held in Balasaheb K. Thackera's case (supra). Of course, how far the learned Magistrate will be able to record the evidence in a case instituted on a complaint in the absence of the complainant is a matter considered. But, so far as this case is concerned the principles laid down in Sebastian's case (supra) can have no application at all. That was a case in which the complainant expired while the case was pending before Magistrate. In the case at hand complainant appellant died after filing of the appeal. Provisions of Section 249 or Section 256 of Criminal Procedure Code can have no application to criminal appeal filed by the complainant and pending before the appellate Court. So the question referred is left open to be decided in appropriate proceedings,

13. Section 354 of Criminal Procedure Cede, 1973 deals with death of appellant in a criminal appeal. It reads as follows:

394. Abatement of appeals,--(1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused,

(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:

Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation.- In this section, 'near relative' means a parent, spouse, lineal descendant, brother or sister.

14. Section 394 of Cr. P.C. applies to appeals. The appeal against an order of acquittal and an appeal to the High Court for enhancement of sentence shall finally abate upon the death of the accused. The appeal filed by the accused against sentence of fine only will not abate upon the death of accused appellant. An appeal from a composite order of sentence combining the substantive sentence of imprisonment with fine also will not abate on the death of the accused appellant (vide State of A.P. v. Narasimha Kumar 2006 (3) KLT 505 (SC) : 2006 Cri LJ 4090. All other appeals filed by accused-appellant shall finally abate on death of appellant accused. Provisions of Section 394 of Cr. P.C. applies to an appeal filed under Section 449 but does not refer to the appeal filed under Section 454 of Cr. P.C. A reading of Section 394 of Criminal Procedure Code shows that once an appeal against acquittal is entertained by this Court, this Court is bound to consider and dispose of the same in accordance with law and the same will not abate on account of the death of the appellant-complainant. Section 394 of Cr. P.C. corresponds to Section 431 of Criminal Procedure Code, 1898.

15. In Khedu Mohton v. State of Bihar : 1971CriLJ20 the Apex Court considered effect of death of an appellant in an appeal filed against acquittal and held that appeal does not abate. It was held as follows:

An appeal under Section 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact that the appellant either does not choose to prosecute it or is unable to prosecute it for one reason or the other.

So position is no more res integra. Death of an appellant complainant in an appeal filed against acquittal will not terminate the proceedings. The appellate Court cannot close or dismiss the appeal as abated. In Bhageerathi Amma v. Jeevankumar 1982 Cri LJ 91 a learned single Judge of this Court considered the effect of death of appellant complainant during the pendency of appeal and held that appeal does not abate. It was held as follows:

There is no much difference between Section 431 of the Code of 1898 and Section 394 of the present Code which would warrant a different interpretation. Evidently Section 394(1) has no application to cases of death of the complainant in an appeal presented under Section 378(4). The words 'every other appeal under this Chapter' exclude appeals filed under Sections 377 and 378 of the Code. The result is that an appeal filed under Section 378(4) does not abate on the death of the complainant.

So this Court cannot dismiss a criminal appeal as abated. The appeal is to be heard and disposed of on its merits.

16. The next question arising for consideration is whether the legal heirs of the deceased appellant-complainant can be impleaded as additional appellants in an appeal filed against acquittal. In Lallo Prasad v. Kedarnath 1963 (2) Cri LJ 543 a learned single Judge of the Allahabad High Court held that appeal is a continuation of the proceedings started in the trial Court. It was held thus:

In order to get assistance for the proper determination of the case on merits, the appellate Court can permit anyone, whom it deems fit, to place before it all the relevant facts and the evidence in the case so that no aspect of the matter escapes the Court's notice.

It was further held thus:

The appearance of such a person is analogous to that of an amicus curiae to assist the Court.

17. In Siba v. Kailash Chandra Jena 1965 (31) Cut LT 37 it was held as follows:

There is no provision that the appeal shall abate on the death of the complainant. The appeal would be properly constituted despite the death of the complainant. But it would be better by way of abundant caution to add the legal representatives of the deceased complainant as parties to the criminal appeal so that in their presence the appeal can be effectively heard and determined, though no substitution is necessary in law.

In Bhageerathi Amma's case 1982 Cri LJ 91, Para 10 (supra) it was held as follows:

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.

We are of the considered opinion that the principle laid down in Bhageerathi Amma's case (supra) is correct and confirm the same. So petitioners who are widow and children of deceased appellant are to be permitted to come on record as additional appellants and prosecute the proceedings. But the petition for setting aside abatement and condoning the delay are unnecessary. We dismiss Crl. M. Appln. Nos. 6983/2006 and 6985/2006 as unnecessary and allow Crl. M. Appln. No. 6984/2006 to the extent of permitting the appellants to come on record as additional appellants and prosecute the appeal.

18. Now we shall consider the case on its merits. The appellant filed complaint alleging that respondent borrowed an amount of Rs. One lakh and issued Ext. P1 cheque and when cheque was presented for collection it was dishonoured for want of sufficient funds in the account and also on account of the fact that the account was closed long back. The specific case put forward by the respondent in Ext. P8 reply notice was that complainant was a total stranger to him. According to him he did not even know the complainant and the appellant was set up by one Narayana Kurup. He had stated that he borrowed some amount from Narayana Kurup to meet the marriage expenses of his daughter and issued two signed cheques. It is also his case that Narayana Kurup filed suit against him and that suit was compromised subsequently. He paid the entire amount due to Narayana Kurup but Narayana Kurup did not return the cheques. It was also contended that Narayana Kurup filed the complaint using the name of deceased appellant.

19. Evidence on record shows that during relevant period deceased appellant had no money. In fact he was facing prosecution in three criminal cases filed against him alleging that three cheques issued by him for discharge of legally recoverable debt due from him to the complainants in those three cases bounced on the ground that he had no sufficient funds in the account maintained by him with the bank. Evidence on record shows that during the relevant period complainant was facing financial difficulties. In one of the criminal cases in which the appellant was accused one of his sureties was one Raveendran who is none other than the son-in-law of Narayana Kurup. The only inference possible is that complainant had no means to advance Rs. One lakh during the relevant period. The account maintained by respondent with the Bank was closed as early as in 1992 and the cheque in question was presented only in the year 1995.

20. The trial Court after appreciating the evidence found that the respondent discharged the burden cast on him. In Narayana Menon v. State of Kerala 2006 (3) KLT 404 (SC) : 2006 Cri LJ 4607 the Supreme Court held that the burden cast on the accused is only to discharge the initial onus of proof and he was not required to disprove the prosecution case. It was held as follows:

Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose the evidence adduced on behalf of the complainant could be relied upon.

xxxxxxxxxxxxxx The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.

xxxxxxxxxxxxxx It was for the Appellant only to discharge initial onus of proof. He was not necessarily required to disprove the prosecution case. Whether in the given facts and circumstances of a case, the initial burden has been discharged by an accused would be a question of fact. It was matter relating to appreciation of evidence.

xxxxxxxxxxxxxx It is for the purpose of a civil litigation, the defendant may not adduce any evidence to discharge the initial burden placed on him, a 'fortiori' even an accused need not enter into the witness box and examine other witnesses in support of his defence. He, it will bear repetition to state, need not disprove the prosecution case in its entirety as has been held by the High Court.

In this case the respondent had adduced evidence to show that deceased appellant had no money to advance an amount of Rs. One lakh and he himself was facing prosecution for issuing cheques without sufficient funds in his account. The contention of the respondent that Ext. P1 cheque was issued to one Narayana Kurup and he had filed the complaint using the name of the deceased appellant cannot be ruled out. So the finding of the trial Court rightly held that the respondent discharged the burden cast on him is correct and only to be confirmed. The appellant had not adduced any positive evidence to show that he was having acquaintance with the respondent and he had sufficient funds to lend an amount of Rs. One lakh. He also failed to establish that Ext. P1 cheque was issued by the respondent to him in discharge of a legally recoverable debt.

21. It is trite law that when two views are possible the appellate Court should not interfere with the finding of acquittal recorded by the Court below as held by the Supreme Court in Narayana Menon's case (supra). We hold that the acquittal of the respondent is correct and does not call for any interference. We confirm the same.

In the result, Criminal Appeal is dismissed confirming the judgment of acquittal passed by the Court below.