JUDGMENT :

MANJU RANI CHAUHAN, J.

1. Heard Mr. Prasoon Tomar, learned counsel for the applicant, Mr. Suresh Chandra Pandey, learned counsel for the opposite party no. 2 and Mr. Pankaj Kumar Srivastava and Amit Singh Chauhan, learned A.G.A. for the State and perused the material available on record.

2. The present application under Section 482 Cr.P.C. has been filed to quash the impugned order dated 08.11.2012 by which the learned Magistrate has rejected the Application No. 115B U/s 256 Cr.P.C. in Criminal Case No. 1336/IX/2008 (Radhey Shyam Agarwal vs. Nanak Chand Gautam) U/s 138 N.I. Act, Police Station-Kotwali, Mathura, pending in the Court of VIth Judicial Magistrate, Mathura.

3. The records go to show that a complaint under Section 138 N.I. Act was filed by Late Radhey Shyam Agrawal against the applicant, challenging the proceedings an Application No. 13672 of 1993 (Nanak Chand vs. State of U.P.) was filed before the Hon’ble Court and the Hon’ble Court on 13.09.1993 stayed the further proceedings of the Criminal Case No. 2955/IX/1992, filed under Section 138 N.I. Act. Subsequently, the aforesaid case was dismissed in default and stay order was vacated on 02.09.1997. Earlier, on an application of the applicant, the trial Court vide order dated 13.03.2006 closed the evidence of defence of the applicant and fixed 24.03.2006 as the date for argument. Thereafter, on 14.04.2006 the applicant moved an application with the prayer to provide opportunity for producing evidence in his defence, on which on 10.09.2008, last opportunity was given to the applicant/accused for producing evidence in his defence. On 20.02.2009, the application of the applicant was rejected and opportunity for producing evidence was closed by a detailed order. A Criminal Revision was filed against the order dated 20.02.2009 in the Court of Sessions Judge, Mathura on 15.04.2009 and the same was also dismissed.

4. The complaint was filed by father of opposite party no. 2 on 15.11.1990 and the applicant was summoned on 15.08.1991 but due to delaying tactics of the applicant, the case could not be decided. During pendency of the aforesaid case, the complainant namely, Radhey Shyam Agarwal expired, therefore, an application under Section 256 Cr.P.C. was moved by the applicant on 04.02.2010 before the Court of Judicial Magistrate, Mathura for dismissal of the complaint on the ground of complainant’s death. On 05.07.2010, an objection was filed by son of the complainant stating therein that the complaint does not come to an end in case of death of the complainant on account of relevant provisions as laid down in Code of Criminal Procedure.

5. The son of the complainant namely, Rajeev Agarwal moved an application dated 20.08.2010 in the Court concerned for impleading him as legal representative as the complainant in the proceedings under Section 138 N.I. Act being his father had expired. The application moved by the applicant on 04.02.2010 under Section 256 Cr.P.C. has been rejected by order dated 08.11.2012 against which the present case has been filed.

6. Learned counsel for the applicant submits that in the Code of Criminal Procedure, 1973 (hereinafter referred to as “the 1973 Code”) there is no provision which permits legal representatives of complainant to be substituted for prosecuting the complaint. Placing reliance upon the Section 256 Cr.P.C. he further submits that the complaint was to be dismissed on the ground of death of the complainant. On the other hand, relying upon provisions of Section 256 Cr.P.C. Section 302 Cr.P.C. as well as the 1973 Code, learned counsel for the opposite party as well as learned A.G.A. submit that the 1973 Code does not contain any provision that on death of complainant, the complaint cannot be allowed to be prosecuted by any other person including the legal representatives.

7. Learned counsel for the opposite party no. 2 submits that the application moved for substituting him in place of complainant, has already been allowed in the ye