IMPORTANT POINT
Death of complainant in a complaint under Section 138 of Negotiable Instruments Act ipso, facto would not lead to termination criminal proceedings and Magistrate has power to allow substitution.

A. Raman, J. - This revision is directed against the order passed by the learned Principal Sessions Judge, Chengalpattu in Crl. Revision petition No. 12 of 1997, on 21-1-1998.

2. The father of the respondent filed a criminal complaint under section 138 of the Negotiable Instruments Act, against the petitioner herein as the accused. The complaint is to the effect that the petitioner herein in discharge of his existing liability handed over a postdated cheque which on presentation was dishonoured on the ground that payment was stopped, During the pendency of the complaint, the complainant died leaving behind him his daughter who filed an application be fore the Judicial Magistrate No. 2, Kancheepuram under section 256 (2) of Cr. P.C., praying that she may be permitted to proceed with the complaint and represent the complainant till the disposal of the case, The said petition was dismissed by the Judicial Magistrate, whereupon the daughter of the complainant preferred a Revision petition No. 12 of 1997. The Revision was accepted by the learned principal Sessions Judge, Chengalpattu and therefore, aggrieved by the said decision the accused has preferred this Revision.

3, Learned Counsel for the petitioner would submit that under section 256 of Cr. P.C., the Magistrate has no option but to dismiss the complaint and that there is no provision to allow the complaint to be prosecuted after the death of the complainant by permitting someone on behalf of the complainant to proceed with the same. It is therefore necessary to refer to section 256 of Cr. P.C. which reads as follows:

"Section 256(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 the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

Section 256(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."

Thus the section leaves three courses open to the Magistrate. (1) The first case open is that on the date fixed for hearing, if the complainant is absent, he may acquit the accused. (2) He can adjourn the case to a future date, or (3) He can dispense with the attendance of the complainant and proceed with the case in his absence.

4. Section 256(2) makes it clear 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. Therefore, in a case where the complainant is dead and the case is posted for hearing, it is open to the Magistrate to follow any of the courses as indicated above. After taking the stock of the situation and considering the facts and circumstances of the case he can exercise his discretion by dismissing the complaint and acquitting the accused; or he can adjourn the case to a future date. He can also dispense with the attendance of the complainant and proceed with the case in his absence.

5. In this case, the non-appearance of the complainant is due to his death. The section empowers the Magistrate to proceed with the case by adjourning the case to a future date and by empowering the Magistrate to dispense with the attendance of the complainant and proceed with the case in his' absence. Thus, it is the discretion that has to be exercised by the Magistrate concerned. It is to be pointed out that it is a complaint filed under section 138 of the Negotiable Instruments Act. It is not a private complaint under provi