Dishonour of Cheque – Death of Complainant – Legal representative of complainant can be substituted as a complainant

Mr. Arvind Singh Sangwan, J. - The challenge in these petitions is to the order dated 21.08.2015 (Annexure P2) as well as order dated 18.11.2015 (Annexure P3) passed by the trial Court in three criminal complaints No. 631, 632 and 633 dated 02.02.2010 and order dated 02.01.2016 (Annexure P4) passed by the Revisional Court dismissing the revision petition(s) filed by the petitioner.

2. Brief facts of the case are that respondent No.1/complainant, through its proprietor Ajay Behl, filed a complaint under Section 138 of the Negotiable Instruments Act (for short ‘N.I.Act’). It is alleged in the complaint that respondent No.1 was proprietorship firm and Ajay Behl, being proprietor and complainant, filed a complaint against the petitioner, as the cheque issued by the petitioner was dishonoured by the bank.

3. During the pendency of the petitions, aforesaid Ajay Behl, appeared as CW1 and his examination-in-chief was recorded and, thereafter, this witness was cross-examined by the petitioner/accused. Subsequently, complainant-Ajay Behl died and his son Aditya Behl filed an application for substituting him in place of deceased Ajay Behl. The said application was contested by the petitioner/accused, however, the trial Court allowed the application and substitute Aditya Behl as complainant in place of his father Ajay Behl, vide impugned order dated 21.08.2015.

4. Thereafter, the trial Court fixed the case for further prosecution evidence and said Aditya Behl appeared as a witness and tendered his affidavit as CW3/A. However, the petitioner raised an objection on the ground that Aditya Behl is not cited as a witness in the list of the witnesses attached with the complaint and no application to lead additional evidence under Section 311 Cr.P.C. was filed by the complainant. The trial Court while recording the said statement over-ruled the objection, by observing that Aditya Behl was impleaded as a complainant only on 21.08.2015 and, therefore, there was no occasion at the time of filing the original complaint to cite him as a witness and once Aditya Behl has been substituted as a complainant, he being the complainant, has a right to appear as a witness.

5. Thereafter, the petitioner filed revision petition before Revisional Court only challenging the aforesaid order dated 21.08.2015 allowing Aditya Behl as substitute of Ajay Behl (original proprietor of M/s Surya Industries/complainant). The Revisional Court, while dismissing the criminal revision on 02.01.2016 has observed as under:-

“I have considered the submissions of learned counsel for the revisionist as well as respondent and have gone through the file. Revisionist has approached this Court aggrieved by the decision of the learned trial Court vide which Aditya Behal is allowed to be substituted as complainant to proceed further with the complaint. During the pendency of the complaint, the complainant Ajay Behl is said to have died on 9.4.2015 leaving behind Smt. Sangeeta Behl Wife, Aditya Behl Son and Meghal Behl daughter. The complainant’s son filed an application seeking to prosecute the complaint. There is nothing on record to show that the applicant Aditya Behl is not legal heir of deceased Ajay Behl. Accordingly, Aditya Behl being legal representative of Ajay Behl deceased complainant can be substituted as complainant to proceed further with the complaint. From the above discussion, I do not find any reason to interfere with the order of the learned trial Court.

For all that has been discussed above, it is held that there is no illegality or irregularity in the impugned order of learned trial court and the same is upheld and revision petition is hereby dismissed being without any merits. Lower Court file be returned forthwith alongwith copy of this order and Revision file be consigned to the Record Room.”

6. Thereafter, the petitioner has filed the present petitions and challenged both the orders passed by the trial Court as well as the order passed by the Revisional C