IMPORTANT POINT
In criminal prosecution for offences under Sections 406, 420 read with Section 34 IPC, on death of the complainant during the pendency of the proceedings, his legal heirs can be granted permission to continue the proceedings.

Headnote:(i) Indian Penal Code, 1860—Sections 406, 420 rw/s 34—Criminal Procedure Code, 1973—Section 239 rw/s 245, 302—Death of complainant—Permission to conduct prosecution by LRs.—It is open to sons of complainant to apply for continuation of proceedings against accused persons—Complaint filed by father against his daughter and son-in-law for offences under Sections 406, 420, rw/s 34 IPC—Allegations that accused 1 and 2 had cheated complainant and committed criminal breach of trust—Judicial Magistrate after recording statement of complainant issued process u/s 204 Cr.P.C.—During pendency of proceedings, complainant died—Three sons of complainant filed an application for permitting them to continue prosecution against accused persons—Magistrate granting permission allowed respondent 1 to continue prosecution against accused persons—That order having not been challenged by the accused had attained finality—Application filed by accused u/s 239 Cr.P.C. for their discharge alleging that no case was made out against them—Whether legal heirs could have continued with the complaint—(Yes)—Such permission could be granted and a person other than the complainant could be allowed to prosecute the complaint—Even if a civil suit is pending, jurisdiction of criminal court not ousted.
       Held : On the death of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of complainant to apply for continuation of proceedings against accused persons. By granting such prayer, no illegality has been committed by the courts. (Para 24)
       There is an additional reason as to why the order should not be interfered with at this stage. As we have already noted, the complainant died in November, 1996. Immediately thereafter, sons applied for impleadment allowing them to continue prosecution against the accused persons by the application dated January 17, 1997. The said application was allowed and permission was granted by an order dated May 23, 1997. The said order was never challenged by the appellants and it had become final. Name of the first respondent was entered on May 14, 2000. Thereafter witnesses were also examined. In so far as application dated August 4, 2004 of the accused is concerned, it was under Section 239 of the Code which provides for discharge of accused. The only ground put forward by the accused was that no prima facie case had been made out against them. In the light of above facts also, in our opinion, this is not a fit case to exercise discretionary power under Article 136 of the Constitution.(Para 25)
       Finally, the contention that a civil suit is filed by the complainant and is pending has also not impressed us. If a civil suit is pending, an appropriate order will be passed by the competent Court. That, however, does not mean that if the accused have committed any offence, jurisdiction of criminal court would be ousted. Both the proceedings are separate, independent and one cannot abate or defeat the other.(Para 26)
       For the foregoing reasons, we are of the view that the courts below were right in permitting respondent No.1 to continue the prosecution by proceeding with the complaint filed by Shaikh Saheblal. In taking such decision, the courts had not committed any error of law which deserves interference by this Court under Article 136 of the Constitution.(Para 27)
       (ii) Indian Penal Code, 1860—Sections 406, 420 rw/s 34—Complaint for offences of cheating and criminal breach of trust—A civil suit filed by complainant also pending—Jurisdiction of criminal court would not be ousted—Both the proceedings are separate, independent and one cannot abate or defeat the other.(Para 26)

JUDGMENT

C.K. Thakker, J.—Leave granted.

2. The present appeal is filed by the appellants-original accused against the order passed by the Judicial Magistrate, First Class (Court No. 7), Pune on August 25, 2004, confirmed by 5th Additional Sessions Judge, Pune on July 1, 2005 and also confirmed by the High Court of Bombay on December 15, 2005.

3. To understand the controversy raised in the appeal, relevant facts may be stated in brief.

One Shaikh Saheblal Mardan (hereinafter referred to as ‘the complainant’) was resident of Pune. Appellant-accused No. 1 Smt. Rashida Kamaluddin Syed is his daughter, and appellant accused-No.2 Kamaluddin K. Syed is husband of accused No. 1 and son-in-law of the complainant. It was the case of the complainant that he was the owner of a bungalow which he sold in May, 1992 through accused No. 2 and deposited the amount of consideration in Bank. The accused No. 2 dishonestly represented to the complainant that he was having some proposals of land for sale and he would get it at a cheaper rate if the complainant was interested in such investment. It would earn more profit to the complainant and he would also get exemption from payment of capital gains. But the complainant wanted to go on Haj (Saudi Arabia) for a month on June 1, 1992. The accused No. 2 again dishonestly represented to the complainant that he could very well go to tour and the accused No. 2 would invest the money in suitable and beneficial proposals. Relying on such dishonest representations by accused No. 2, the complainant gave him five blank signed cheques as also withdrawal slips so as to enable appellant No. 2 to invest amount in purchase of property and to pay such amount to vendors. It was the case of the complainant that when he returned from Haj, he found that an amount of Rs. 5,15,000/- had already been withdrawn by appellant No. 2 but no property was purchased in the name of the complainant. On further inquiry, he found that accused Nos. 1 and 2 had joined hands and their common intention was to grab money of the complainant. He made inquiry to appellant No. 2 but the latter gave evasive reply. Moreover, the accused purchased an open plot in the joint name of accused No. 1 and complainant for Rs. 2,70,000/-. Accused No. 1 also sent a notice through her advocate stating therein that the plot was purchased by her with her own money. She also filed a false complaint on August 28, 1992 against the complainant and his sons for offences punishable under Sections 384, 511, 504, 506 read with 34 of Indian Penal Code (IPC) alleging criminal intimidation and extortion. The complainant was thus convinced that his daughter and son-in-law (accused Nos. 1 and 2) had cheated him and committed criminal breach of trust. He, therefore, filed Criminal Complaint No. 605 of 1993 in the Court of Judicial Magistrate, First Class (A.C. Court), Pune on March 15, 1993 for offences punishable under Sections 406 and 420 read with 34 IPC. The Judicial Magistrate, First Class after recording statement of complainant issued process under Section 204 of Code of Criminal Procedure, 1974 (hereinafter referred to as “the Code”). During the pendency of the proceedings, however, complainant died in November, 1996.

4. Three sons of deceased-complainant [(i) Shaikh Shaiuddin, (ii) Shaikh Nuruddin; and (iii) Shaikh Nizamuddin] made an application (Ex. 21) on January 17, 1997 for permitting them to continue prosecution against the accused persons. The learned Magistrate by an order below Ex. 21 dated May 23, 1999 granted the application relying upon a decision of this Court in Ashwin Nanubhai Vyas v. State of Maharashtra, 1967 (1) SCR 807 : AIR 1967 SC 983 and allowed Shaikh Sahabuddin - respondent No. 1 herein to continue the prosecution against the accused persons. It appears that the said order had not been challenged by the accused and it had attained finality. Name of respondent No. 1 was accordingly, entered on May 14, 2000. Prosecution witnesses were also exa

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2007 Supreme(SC) 295

IMPORTANT POINTIn criminal prosecution for offences under Sections 406, 420 read with Section 34 IPC, on death of the complainant during the pendency of the proceedings, his legal heirs can be granted permission to continue the proceedings.

Cases Referred (3)

IMPORTANT POINT
In criminal prosecution for offences under Sections 406, 420 read with Section 34 IPC, on death of the complainant during the pendency of the proceedings, his legal heirs can be granted permission to continue the proceedings.