The legal heirs of a deceased complainant have the right to give power of attorney to another person to continue the prosecution case.

Criminal Revision is filed under Sections 397 and 401 of Cr.P.C. against the order dated 5.1.2000 passed in Crl.M.P.No.3471 of 1998 in C.C.No.158 of 1996 on the file of the learned Judicial Magistrate, Thiruchengode to grant permission to the petitioner to continue to conduct the case as an power agent of the legal heirs of I.Mumtaz Begum as per the power given by them on 24.10.1998.

For petitioner : Mr.K.V.Sridharan

O R D E R

Though notice has been sought to be served for the respondents through Court, the same has not been successful. Hence, the petitioner was directed to take private notice and accordingly, counsel has taken steps and today she has filed proof of affidavit of service on the ground that the respondents have "left". It is made clear that notice has been sent to the address given by the accused and consequently, this Court is of the opinion that the respondents are evading service and hence, I am constrained to hear the learned counsel for the petitioner and on perusing the records, I am constrained to pass the following ORDER.

2. This revision has been filed against the order of the Judicial Magistrate Tiruchengode in Crl.M.P.No. 3471 of 1998 in C.C.No.158 of 1996 dismissing the petition filed on behalf of the petitioner to allow him to represent and prosecute the case on the basis of a power of attorney given to him on 24.10.1998, after the demise of the Proprietrix Mumtaj Begum, who had originally given a power to the said Rashid Khan to launch the prosecution against the respondents for an offence punishable under Section 138 of the Negotiable Instruments Act.

3. It may not be necessary to go into the facts of the case, since the point involved is only with regard to the factum of bringing to the notice of the Court that the Proprietrix of M/s.Nazreen Textiles who is the complainant in the case which is being represented by Mumtaj who in turn has given power of attorney to the said Rashid Khan to represent on her behalf as complainant in the case. Accordingly, a complaint had been given by M/s. Nazreen Textiles and the same has been taken on file and summons were also issued to the accused.

4. It appears that on 19.07.1998 the said Mumtaj Begum, namely, the Proprietrix of M/s. Nazreen Textiles who gave originally the power to Rashid Khan, expired. Therefore, by way of abundant caution, Rashid Khan obtained additional power of attorney from the legal heirs of Mumtaj Begum on 24.10.1998 and thereafter filed the petition before the Magistrate, disclosing that he would prosecute the case on the basis of the second power of attorney.

5. Learned Magistrate has dismissed the said application stating that M/s. Nazreen Textiles has no legal entity with it and the proprietrix having died, the legal heirs cannot give power to any person.

6. Learned counsel for the petitioner would submit that as a matter of fact Rashid Khan could have proceeded with the case on the basis of the power of attorney given by Mumtaj Begum since the complainant is only M/s. Nazreen Textiles and that the concern is still in existence. But however it is only by way of abundant caution the present petition was filed before the learned Magistrate after getting another power of attorney from the legal heirs of Mumtaj Begum. At any rate, the legal heirs of Mumtaj Begum have every right to give power to the said Rashid Begum to continue the prosecution case.

7. Learned counsel appearing for the petitioner in support of his plea would contend that the criminal complaint would not bar in the case of the death of the complainant in a summons case.

8. 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.

9. Section 256 (2) specifies that the provisions mentioned in Sub Section (1) cited supra, applies to a case where