IMPORTANT POINT
Section 256 Cr. P.C. empowers Magistrate in a given case to permit a fit & proper person to continue the prosecution on death of complainant.

B.N. Mallikarjuna, J. - The only question involved in this revision is whether in the trial of a summons case instituted, on a private complaint, accused is entitled to an acquittal on the death of the complainant or whether a fit and proper person could be permitted to continue the complaint.

2. Few facts relevant for the disposal of this revision petition needs to be stated:

Deceased Dr. S.V. Sunkappa on December 5, 1989 through an Advocate made a written complaint under Sec. 200, Cr. P.C. in the Court of Metropolitan Magistrate III Court, Bangalore against the respondent-accused alleging commission of an offence under Sec.138 of the Negotiable Instruments Act. It is stated that Cheque No. 604458 dated October 30, 1989 for Rs. 3,75,000/- issued to him by the accused drawn on Mandya District Cooperative Bank. Naguvanahally Branch when presented for encashment through Canara Bank, Srirampuram Branch, Bangalore was bounced with endorsement "Refer to Drawer". The accused failed to reply or make payment despite receiving a notice sent to him both by registered post and under certificate of posting as required under the Act.

The learned Magistrate, on January 11, 1990 took cognizance of the offence, recorded the sworn statement of the complainant, registered a case in C.C. No. 2392/1990 for an offence under Section 138 of the Negotiable Instruments Act and process issued (or the appearance of the accused. Summons issued on many, occasions for his appearance returned unserved and after service remained absent. Therefore, non-bailable warrant was issued and in the meantime on 8-7-1991 accused appeared in Court, filed an application for re-calling the warrant and therefore, warrant was re-called and the proceedings continued.

On October 29, 1991 plea of the accused recorded. The accused pleaded not guilty and therefore, posted for trial by January 21, 1992. In the meantime, on January 15, 1992 complainant died and therefore, from January 21, 1992 it was adjourned time and again and finally for hearing on April 3, 1992. On April 3, 1992 revision petitioner S. Reddappa son of the deceased complainant filed an application under Section 302(1), Cr .P.C. praying the Court to substitute him in place of complainant and permit him to continue the proceedings. Accused opposed the application. The learned Magistrate therefore, after hearing the parties by order dated February 9, 1993 dismissed the application and acquitted the accused. Hence this revision challenging the said order of acquittal.

3. Learned Counsel for the revision petitioner contended that exercise of power under Section 256, Cr. P.C. is improper, cognizance of a summons case which was taken on a private complaint does non abate on the death of the complainant. Sub-section (2) of Section 256, Cr. P.C. empowers the Magistrate in such circumstances, to consider the application and if the person is found fit and proper, to substitute him in place of complainant and permit him to continue the complaint.

Learned Counsel for the respondent contended that in view of the decision of this Court in Subbanna Hegdev. Dyavappa Gowda1 the Court had no option but to acquit the respondent accused and as such, the order cannot be disturbed.

4. An offence under Section 138 of the Negotiable Instruments Act is punishable with imprisonment for a term, which may extend to one year or with fine, which may extend to twice the amount of the cheque or with both, it is a summons case.

Chapter XX of the Criminal Procedure Code consisting of Sections 251 to 259 contemplates the procedure to be followed by the Magistrate in the trial of a summons case, whether it be on a police report or on a private complaint. Section 256 deals with the procedure to be followed by the Magistrate in case the complainant remains absent on the appointed day for the appearance of the accused or any day subsequent thereto which the hearing may be adjourned. Section 256 of Cr. P.C. reads thus:

"Non-appearance or death of compl