ORDER :

This Criminal Petition is filed by the petitioner – legal representative of the complainant under Section 482 Cr.P.C. to permit her to prosecute the complaint in CC No.138 of 2009 on the file of the II Additional Judicial Magistrate of First Class, Khammam by restoring the complaint to file.

2. The facts of the case in brief are that the husband of the petitioner filed a complaint against the 2nd respondent before the Court of the II Additional Judicial Magistrate of First Class, Khammam for the offence under Section 138 of the Negotiable Instruments Act (for short ‘NI Act’) as the 2nd respondent borrowed an amount of Rs.10,00,000/- on 15.10.2006 for the purpose of his business necessities and executed a promissory note on the even date agreeing to repay the same together with interest. In discharge of the said enforceable debt, the 2nd respondent issued a cheque on 25.07.2008 for Rs.10,00,000/- towards part satisfaction of the debt. The cheque issued by the 2nd respondent was dishonoured. As such, a notice was issued by the complainant and filed a complaint and the same was taken on file for the offence under Section 138 of the NI Act and numbered as CC No.138 of 2009. While the matter stood thus, the complainant died on 12.08.2011 due to ill health. The counsel representing the complainant filed a memo on 18.08.2011 intimating the Court about the death of the complainant and filed an application that the 2nd respondent paid the entire amount in view of the compromise and asked the Court to permit to withdraw the complaint as not pressed. Basing on which, the learned Magistrate passed a docket order dismissing the complaint as not pressed and acquitting the accused – 2nd respondent.

3. Heard the learned counsel for the petitioner. There is no representation for the 2nd respondent.

4. Learned counsel for the petitioner submitted that the Court below passed the order without insisting the presence of the legal heirs of the complainant, if any. In fact, no compromise was arrived at between the deceased complainant and the 2nd respondent. But for obvious reasons, the counsel filed the memo with false allegation of compromise. The petitioner was the legal heir of the deceased complainant being his wife and entitled to prosecute the complaint. Taking advantage of the death of the complainant, the counsel colluded with the 2nd respondent and filed the memo without the knowledge of the petitioner, legal representative of the deceased complainant. If the factum of compromise was correct, the counsel would have stated for what amount the matter was compromised, how the said amount was paid etc. There was absolutely no compromise or any amount was paid. In the absence of any material in support of the alleged repayment, it was highly improbable to believe the version of the counsel. The counsel appeared to have colluded with the 2nd respondent and filed the application without informing the petitioner.

The said order was passed due to misrepresentation of facts and fraud played by the 2nd respondent in collusion with the counsel for the deceased complainant and prayed to permit the petitioner to prosecute the complaint in CC No.138 of 2009 by restoring the complaint on file by recognizing her as the legal representative of the deceased complainant.

5. If the accused person in a cheque bounce case dies, the case gets over and the only remedy left with the complainant is to file a civil case against the legal heirs of the accused person (if it is within limitation) because criminal liability cannot be shifted to the legal heirs of the accused person. The case under Section 138 of the NI Act being criminal in nature, the liability of the accused cannot be shifted to the legal heirs of the accused. There is no specific provision in the NI Act to consider what happens to the case on the death of the complainant, hence, we have to fall back on the Code of Criminal Procedure.

6. Section 256 of the Code of Criminal Procedure, 1973, under Chapt