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HIGH COURT OF JUDICATURE AT ALLAHABAD
ARUN KUMAR SINGH DESHWAL, J.
Ram Avtar Agarwal - Applicant
Versus
State of U.P. and Another - Opposite Parties
Application U/S 482 No. 21759 of 2024
Decided On : 22-01-2025
(A) Negotiable Instruments Act, 1881 - Section 138 - Quashing of complaint - Application filed to quash proceedings concerning a bounced cheque issued on behalf of a company - The court clarified that the director can be summoned in his capacity as a signatory - The death of the complainant does not abate proceedings; legal heirs may continue - Relevant sections of Cr.P.C. discussed include Section 256 and Section 302. (Paras 3, 9, 10, 16)
(B) Legal heirs in criminal complaints - Legal heirs can pursue complaints after the death of the complainant as per Section 302 Cr.P.C. - The court emphasized that the absence of a provision for substitution does not prevent continuation of proceedings by legal heirs. (Paras 9, 16)
Facts of the case:
The complainant filed a complaint under Section 138 alleging non-payment of a cheque issued for a flat booking, which bounced due to 'account closed.' Following the complainant's death, his son sought to continue the proceedings, which was challenged.
Findings of Court:
The court found no illegality in allowing the son to pursue the case, affirming that legal heirs can continue complaints under Section 302 Cr.P.C.
Issues: Whether the son can continue the complaint after the complainant's death and whether the summons issued to the director was valid.
Ratio Decidendi: The court held that the death of the complainant does not automatically abate the proceedings; legal heirs can continue the prosecution, and summons to the director was valid as he was the cheque signatory.
Result: Application rejected.
Based on the provided legal document, the following key points are relevant:
Legal heirs can pursue a complaint under Section 138 of the Negotiable Instruments Act after the death of the complainant, as per Section 302 Cr.P.C. (!) (!) .
The absence of a specific provision for substitution of the deceased complainant does not prevent the legal heirs from continuing the proceedings; the court has the discretion to permit them to do so (!) (!) .
The court clarified that the proceedings do not automatically abate upon the death of the complainant if the court permits the legal heirs to continue. The court can also allow the legal heirs to proceed either personally, through a pleader, or via a power of attorney (!) (!) .
The summons issued to the director of the company in his capacity as a signatory were deemed valid, as the summons clearly mentioned his status as Director, and service upon him was sufficient for the company (!) (!) .
The contention that the complaint proceedings were invalid due to the death of the complainant and the subsequent application filed by his son to continue the case was rejected, affirming that such continuation is permissible under the relevant provisions (!) (!) .
The argument that the cheque was lost and thus not issued in discharge of any liability is a matter for defense during trial, not grounds for quashing the proceedings (!) (!) .
The contention regarding the incorrect address for service of notice can also be raised as a defense during the trial, as the issue of service is a question of fact (!) .
Even if the cheque was returned with an endorsement indicating 'account closed,' proceedings under Section 138 are not automatically invalid and can be defended during trial (!) .
The court observed that the proceedings had been pending for several years without the applicant actively contesting, and no illegality was found in the order permitting the continuation of the case by the legal heirs (!) (!) .
Consequently, the application to quash the proceedings was rejected, as there was no illegality in the order allowing the legal heirs to pursue the complaint (!) .
These points summarize the court's reasoning and the legal principles applied regarding the continuation of criminal proceedings under Section 138 of the Negotiable Instruments Act after the complainant's death, the validity of summons, and the defenses available to the accused.
JUDGMENT :
(Arun Kumar Singh Deshwal, J.)
1. Heard Sri Rahul Chaudhary, learned counsel for the applicant and Sri Uday Bhan, learned AGA for the State.
2. The present 482 Cr.P.C. application has been filed to quash the order dated 11.09.2018 passed by learned Presiding Officer, Additional Court No.3, Agra as well as entire proceedings of Complaint Case No.874 of 2018 (Vinod Kumar Agarwal Vs. Ram Avtar Agarwal and another), under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station- Chhata, District-Agra, pending in the court of Additional Court No.3, Agra.
3. The facts giving rise to the present case is that father of opposite party no.2, Vinod Kumar Agarwal had filed a complaint against the applicant u/s 138 of the Act, 1881 with the allegation that to return the payment of booking amount of a flat constructed by the applicant, a cheque of Rs.3 lakhs dated 10.05.2018 issued in favour of Vinod Kumar Agarwal, who was the father of opposite party no.2, was given by the applicant on behalf of the Company-Anupam Omarion Infrastructure India Private Limited and on presenting the same before the bank on 10.05.2018, same was returned by the bank on 11.05.2018 with the endorsement 'account closed'. Thereafter, demand notice was sent to the applicant through registered post on 17.05.2018 but despite receiving the said demand notice on 26.05.2018, cheque amount was not paid by the applicant. Therefore, the impugned complaint was filed. Sri Vinod Kumar Agarwal has also filed his statement u/s 200 Cr.P.C. through affidavit. Thereafter, the court below has summoned the applicant as Director of Omarion Infrastructure India Private Limited vide order dated 11.09.2018. Thereafter, during the pendency of trial, the complainant, Sri Vinod Kumar Agarwal had died on 06.11.2021. After the death of complainant, Sri Vinod Kumar Agarwal, opposite party no.2 being his son moved an application dated 22.08.2023 permitting him to continue the impugned proceeding being legal heir of complainant, Vinod Kumar Agarwal, which was allowed by the court below vide order dated 08.11.2023 and same is under challenge in the present case.
4. Sri Rahul Chaudhary, learned counsel for the applicant, raised following contentions to challenge the impugned proceeding :
(i) The first contention of learned counsel for the applicant is that, admittedly, the cheque in question was issued on behalf of the Company-Anupam Omarion Infrastructure India Private Limited and the court summoned the Director of the Company instead of summoning the company, itself.
(ii) The second contention of learned counsel for the applicant is that after the issuance of the summoning order, the complainant died on 06.11.2021, thereafter, his son moved an application on 22.08.2023, which was erroneously allowed by the court below on 08.11.2023, permitting him to pursue the complaint on behalf of the complainant, which is absolutely illegal as the son of the complainant has no personal knowledge, so he cannot be allowed to pursue the impugned proceeding as well as to depose therein. In support of his contention, learned counsel for the applicant has relied upon the judgement of the Apex Court in the case of A.C. Narayanan Vs. State of Maharashtra & Another in Criminal Appeal No.73 of 2007 reported in (2014) 11 SCC 790.
(iii) The third contention of learned counsel for the applicant is that cheque in question was lost on 08.02.2016 regarding which a police complaint was also given on the same date. Thereafter, news item was also published in newspaper on 10.02.2016 and again on 14.11.2016. Therefore, cheque in question was not issued in discharge of any liability and same was a missing cheque.
(iv) The fourth contention of learned counsel for the applicant is that the notice was sent to the applicant at the incorrect address.
5. Per contra, learned AGA has submitted that it is an established law that once the cheque is returned on the ground of the account
Legal heirs can pursue a complaint under Section 138 of the Negotiable Instruments Act after the death of the complainant, as per Section 302 Cr.P.C.
The main legal point established in the judgment is that legal heirs of the deceased complainant can be substituted in his place and can continue the proceeding after his death, and the right to pros....
A power of attorney holder cannot file a complaint under Section 138 N.I. Act in his own name; he must act on behalf of the principal and possess knowledge of the transaction.
The legal provisions of the NI Act create a deeming offence for dishonour of cheques and establish a presumption of debt or liability upon the holder of the cheque, with a reverse onus cast on the ac....
Issuance of summons without conducting inquiry under Section 202 of the Cr.P.C. is impermissible, making the cognizance under Section 138 of the N.I. Act unsustainable.
(1) Dishonour of cheque – When, complainant/payee is a company, an authorized employee can represent company.(2) Dishonour of cheque – Dismissal of a complaint at threshold by Magistrate on question ....
The main legal point established in the judgment is that a complaint filed by a company under Section 138 of the Negotiable Instruments Act must be in the name of the company and can be represented b....
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