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2003 Supreme(AP) 296
2003 (2) Crimes 226
JHARKHAND HIGH COURT
Tapan Sen, J.
Ajay Kumar Agarwal & Anr. —Petitioners
versus
State of Jharkhand & Anr. —Respondents
Crl. Misc. P. No. 618 of 2002
Decided on 25-2-2003
Counsel for the parties:
For the Petitioners : Mr. Prabhas Kumar, Advocate.
For the State : Mr. R.S. Majumdar, Govt. Advocate.
For the Opp. Party No. 2 : Mr. Kalyan Roy, Advocate.
Important Point
Death of complainant cannot ipso facto terminate the criminal proceedings where cognizance of offences under Sections 420, 468 IPC and under Section 138 Negotiable Instruments Act had been taken on a complaint.
Headnote:Criminal Procedure Code, 1973 — Sections 256(2) and 249 — Cogni-zance of offences under Sections 420, 468 IPC and Section 138 Negotiable Instruments Act in a private compl-aint — Death of complainant — Petition for discharge — Dismissed by Magistrate — Legality — Impugned order suffered no illegality.
Held: In the instant case cogni-zance has also been taken under Sec-tions 420 and 468 of the Indian Penal Code. So far as Section 420 of the Indian Penal Code is concerned, the punishment may extend to 7 (seven) years and similarly for an offence under Section 468 of the Indian Penal Code the punishment may also extend up to 7 (seven) years. Both the cases are cognizable and non-bailable. While Section 420 is compoundable, Section 468 is non-compoundable. (Para 15)
Further Held: Section 256 of the Code of Criminal Procedure is a discretionary statute which vests a discretion upon the Magistrate to proceed with the trial either in the absence or death of the complainant. He also has the discretion that where a complainant is represented by a Law-yer/Pleader who conducts the prosecu-tion on his behalf and where the Magis-trate is of the opinion that personal attendance is not necessary, then he may dispense with the attendance and proceed with the case. The same ana-logy must also be therefore accepted in the case of a complainant who dies. What is important in the instant case is that it was initiated on the basis of a complaint which was filed through a Lawyer who becomes the Officer con-ducting the case on behalf of the compl-ainant and therefore the Trial Magis-trate had every right to continue with the case even in the absence of the complainant. Additionally when the son of the complainant has stepped in and wanted to continue with the case. Section 256 (2) of the Code of Criminal Procedure could not have come to the rescue of the accused persons in any manner whatsoever. (Para 16)
(ii) Negotiable Instruments Act, 1881 — Holder in due course — Dish-onour of cheque — Death of complai-nant payee — Son of complainant who is successor to the business must be deemed to be “holder in due course”. (Para 21)
Result: Petition dismissed.
Tapan Sen, J.— Heard Mr. Prabhas Kumar, learned counsel for the petitioners; Mr. R.S. Majumdar, learned Government Advocate for the State, and Mr. Kalyan Roy, learned counsel for the Opposite Party No. 2.
2. The instant application invoking the inherent powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 has been filed for quashing the order dated 6-6-2002 passed in Criminal Revision No. 24 of 2002 by the learned Sessions Judge, Koderma by reason whereof he dis-missed the Revision Application itself.
3. The Revision Application in turn was filed against the order dated 6-3-2002 passed by the learned Sub-Divisional Judicial Magistrate, Koderma in Case No. 136 of 2000 (T.R. No. 551 of 2002) by which he rejected the petition dated 18-6-2001 filed by these petiti-oners wherein they had prayed for acquitting them in terms of the provi-sions contained under Section 256(2) of the Code of Criminal Procedure, 1973 and for discharging them under Section 249 of the said Code. The ground taken in the petition for acquittal and discharge was that the complainant had died on 6-6-2001 and that cognizance under Section 138 of the Negotiable Instru-ments Act was barred by limitation.
4. The short facts which are necessary to be taken note of in this case is that on 2-6-2000 one Ratan Lal Chhabra filed Complaint Case No. 136 of 2000 in the Court of Additional Chief Judicial Magistrate, Koderma against 5 (five) accused persons including these petitioners. It is relevant to note that accused No. 1 (Ajay Kumar Agarwala) is petitioner No. 1 in this case while the accused No. 2 (Goutam Agarwala) is his son. The complaint petition discloses that both of them as also the wife of Ajay Kumar Agarwala and his other son, i.e., Deepak Agarwala were all made accused persons with a specific state-ment that both were incharge and responsible in matters relating to the affairs of the company of which accused No. 1 (petitioner No. 1) is the President. The Company is known as M/s. Hi Rise Exports (Pvt.) Ltd. It is also relevant to note that the said Company was also made accused No. 5 in the said compl-aint case. The allegations contained in the body of the said memo of complaint is that the accused Nos. 1 and 2 (Ajay Kumar Agarwala and his wife Geeta Agarwala-President and Director respectively of the Company) alongwith their staff came to the Complainant’s Mica godown at Jhumritilaiya in a car on 1-10-1999 between 3-4 p.m. when he was busy with his workers and was talking to some other persons who had come to purchase mica from his own business premises. It was further alleged that the accused No. 1 in the presence of the accused No. 2 informed the complainant that for the export business of their Company (accused No. 5), they were in dire need of some mica which were available at Giridih. Accordingly, this requested the complai-nant to sell mica as per their require-ments mentioned in paragraph 3 of the Memo of complaint and assured that they would immediately pay the price thereof by 2 (two) account payee che-ques of State Bank of India, Giridih Bazar Branch. Further case of the complainant was that he was initially not willing to sell the mica to the acc-used Nos. 1 and 5 (meaning thereby the President of the Company and the company itself) but on persuasion of the accused No. 1 and also upon his assurance of immediate payment and upon repeated requests, the complai-nant as alleged was induced to sell mica to them worth Rs. 7,30,000/- (Rupees seven lakh thirty thousand only). The further case of the complainant was that these articles were sold under due pass, challan and bill and in lieu thereof the accused persons issued 2 (two) cheques worth Rs. 5,00,000/- (Rupees five lakh) and Rs. 2,30,000/- (Rupees two lakh thirty thousand) respectively both being dated 1-10-1999 drawn on State Bank of India, Giridih Bazar Branch favouring the complainant. The said cheques were also signed by the petitioner No. 1 in the capacity
