IMPORTANT POINT
In proceedings under Section 138 of Negotiable Instruments Act, daughter can be substituted as complainant in place of her deceased father.

A. Packiaraj, J. This revision has been filed against the Order passed by the Judicial Magistrate, Ambasamudram in Crl. M.P. No. 3932 of 2000, dismissing the petition filed on behalf of the petitioners herein, to allow them to represent the deceased complainant, in C.C. No. 164 of 1998, as complainant.

2. It may not be necessary for me to go into the facts of the case, since the point that is involved is only in relation to the substitution of the complainant, after his demise. The circumstances under which the said petition had been filed in the lower Court by the petitioners are as follows :

(a)One Mr. P.S. Subbiah had filed a complaint against the respondent for having committed offence punishable under Section 138, Negotiable Instruments Act, before the Judicial Magistrate, Ambasa-mudram in June, 1998. The Magistrate had taken the sworn statement on 8.8.1998. Later he took cognizance of the said offence and numbered the case as C.C. No. 164 of 1998. However, it appears that the case did not proceed till 2000 and that on 12.2.2000, the complainant, P.S. Subbiah, expired. Hence a petition was filed before the Judicial Magistrate, Ambasa-mudram by the petitioners, herein, namely, Indira, Yamuna and Arumugam, stating that the first two petitioners Indira and Yamuna are the daughters and legal heirs of the deceased P.S. Subbiah and Arumugam is the husband of the third petitioner. Their further case is there are 2 other legal heirs, who are the sons of the deceased and as they are out of station, the petitioners 2 and 3 are filing the said petition and they further state that since they are women and could not come to the Court often, they had given a joint power of attorney in the name of the Thiru Arumugam, husband of the third petitioner therein, to represent the complainant in the Court and prosecute the case.

(b)The respondent accused filed a counter stating that all the legal heirs have not given power to the fourth petitioner to represent the case and that the sons have not signed the power of attorney and consequently, the general power of attorney given to the said Arumugham is not a valid one and he has no right to represent or to get himself substituted as a complainant in the said case. The learned Magistrate accepting the contention of the respondent, dismissed the said application, against which, the present petition has been

filed.

3. The learned Counsel for the petitioner would urge before me that the criminal case does not abate on the death of the complaint in a summons case.

4. As a matter of fact, Section 256(1), Cr. P.C. contemplates that the Magistrate can also adjourn the case even if the complainant is absent or if in his opinion, the attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

5. Section 256(2) specifies that the provisions mentioned in Sub-section (1) cited supra, applies to a case where non-appearance of the complainant is due to his death. Therefore, in such circumstances, the law envisages that even on the death of the complainant, the Magistrate has power to proceed with the case in the absence of the complainant.

6. The learned Counsel also brought to my notice the decision rendered in Associated Cements Co. Ltd. v. Keshvanand.1 It was also a case relating to offence under Section 138, Negotiable Instruments Act and the complainant was a “body corporate” a company and Their Lordships have held that a person who filed the complaint on behalf of the company would have resigned from his job during the pendency of the trial and consequently, he may not be able to appear as complainant any further and in such circumstances, any other person can step into the shoes of the complainant and represent the company.

7. However, the learned Counsel for the respondent contended that the observations made by the Apex Court would not be applied to this case, since a complaint filed by a company is totally different from a complaint filed b