The central legal point established in the judgment is that the court should not adopt a hypertechnical approach and should afford opportunities to legal heirs/representatives to pursue a matter after the death of the original complainant.

JUDGMENT

Ajay Mohan Goel, J. - By way of this appeal, the appellants have challenged order, dated 16.01.2017, passed by the Court of learned Judicial Magistrate, 1st Class, Anni, District Kullu, H.P. in Case No. 61-3 of 2013, whereby learned Court below while disposing of an application so filed before it under section 256(1) of the Code of Criminal Procedure, 1973 proceeded to dismiss the complaint by holding that as no application by a competent person entitled to continue the lis after the death of original complainant was before the Court, therefore, the Court had to proceed with the assumption that the complainant was absent.

2. Brief facts necessary for the adjudication of the present appeal are that a complaint was filed under Section 138 (1) read with section 142 of the Negotiable Instruments Act, 1981 by Shri Puran Chauhan, son of late Sh. Mangal Chand against the present respondent, alleging therein that the complainant was an authorized agent of M/s. Harkrishan Lal Baldev Rai Fruit Commission Agents, B-214, New Subzi Mandi Azaadpur, Delhi-33 and under the authority as an authorized agent of the said firm, he had supplied materials like Empty Cartons, Trays, Strapping Machines and Strapping Rolls etc. to the apple growers, including the respondent/accused, who in lieu of the same, had issued a Cheque bearing No. 486588 amounting to Rs. 4,77,229/-, dated 08.12.2012, payable at State Bank of India, Branch Office Kungash, Tehsil Anni, District Kullu, H.P. It was further the case of the complainant that the Cheque was duly presented by him in the bank concerned for encashment, but the same was returned back to the complainant on 28.12.2012 with the remarks "Insufficient Funds". Thereafter, he issued a statutory legal notice, as required and when even then the accused did not make good the payment, he had no option but to file the complaint under Section 138(1) read with section 142 of the Negotiable Instruments Act.

3. During the pendency of the complaint, original complainant died. After his death, an application was filed before the learned Court below under section 256(1) of the Code of Criminal Procedure, 1973 for substitution of deceased complainant with Sh. Lok Raj Sharma, son of Sh. Tara Chand Sharma, resident of Village Rrewari, P.O. Dalash, Tehsil Anni, District Kullu. It was averred in the said application that the original applicant was pursuing the complaint on behalf of original complainant, i.e., M/s. H.B. Delhi New Sabzi Mandi Azaadpur Delhi, as authorized attorney/representative of the same. It was further mentioned in the application that as authorized representative had expired and the original complainant being based in Delhi and was not personally in a position to proceed with the proceedings, it had authorized and appointed Sh. Lok Raj Sharma (supra) as its duly authorized agent/representative to pursue the matter on its behalf before the Court. Accordingly, a prayer was made to allow Sh. Lok Raj Sharma, son of Sh. Tara Chand Sharma to further pursue the case on behalf of the original complainant or in the alternative to allow the original complainant to pursue the case itself.

4. The application so filed was opposed by the respondent inter alia on the ground that the application was not maintainable, as the complaint stood instituted by late Shri Puran Chauhan not in his capacity as authorized representative of firm called M/s. H.B. Delhi, but in his own capacity and further, no document was produced on record to demonstrate that deceased complainant had any legal capacity to sue on behalf of the firm in issue.

5. Learned Court below vide impugned order, dated 16.01.2017, dismissed the application so filed under section 256(1) of the Code of Criminal Procedure, 1973 and thereafter went on to hold that as there was no application before the Court filed by a competent person entitled to continue the complaint, therefore, the Court had to proceed on the assumption that the complainant was absent and on