This Revision Case has been filed against the order dated 14.08.2015 passed by the learned Judicial Magistrate No.5, Salem in C.C.No.37 of 2014.

2. The husband of the first petitioner/complainant had filed a complaint against the respondent/accused for the alleged offence under Section 138 of the Negotiable Instruments Act, which was taken on file and numbered as C.C.No.37 of 2014. During the pendency of the said C.C.No.37 of 2014, the complainant M.P. Balasubramaniam died on 14.12.2014.

3. This factor had been brought to the notice of the trial Court when the case was taken up for hearing on 14.08.2015 as, on that date, the learned counsel who appeared before the lower Court on behalf of the complainant seems to have filed a memo stating that the complainant had died. On receipt of the said memo filed by the learned counsel for the complainant, the learned Judge through the impugned order has stated that the complainant called absent, although the learned counsel for the complainant filed a memo stating that the complainant had died, memo was recorded, hence this complaint is dismissed. Against this order, the present revision had been filed.

4. I have heard Mr. N. Manokaran, learned counsel appearing for the petitioners as well as Mr. M. Devaraj, learned counsel appearing for the respondent.

5. In view of the death of the original complainant, his legal heirs i.e. wife, two daughters and one son being the legal heirs of the complainant have filed this revision case before this Court against the said order dated 14.08.2015.

6. The learned counsel appearing for the petitioners would state that since the complainant was no more and the said information was made to the Court concerned, the Court must have explored the possibility as to whether the legal heirs are going to conduct the case in this regard and only after ascertaining the fact from the learned counsel appearing for the complainant, further proceeding should have been undertaken by the learned Magistrate. However, he simply dismissed the complaint by recording the absence of the complainant. Therefore, that order cannot be sustained and therefore the revision has to be allowed.

7. Per contra, Mr. M. Devaraj, learned counsel appearing for the respondent has invited the attention of this Court to Section 256 of the Code of Criminal Procedure, which reads thus:

Non-appearance or death of complainant. –

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

(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.

8. By relying upon the said provision, the learned counsel for the respondent would state that as per Section 256(1), if the complainant does not appear, the Magistrate shall pass orders dismissing the said complaint. He would further state that, the Magistrate can adopt the very same procedure under sub-section (2) of Section 256 in case the complainant was absent due to death. Therefore, what has been contemplated under Section 256 of the Code has been simply adopted by the learned Magistrate and accordingly he dismissed the complaint by recording the statement that the complainant had died. Therefore, the learned counsel for the respondent would state that absolutely there is no infirmity in the order which is impugned herein.

9. I have considered the s