IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

nd

ON THE 22 OF JANUARY, 2026 MISC. CRIMINAL CASE No. 30107 of 2018 KISHORE BATHAM Versus GIRRAJ JI FRUIT COMPANY THR Appearance:

Shri Anvesh Jain - Advocate for the petitioner.

ORDER The present petition, under Section 482 of CrPC, has been filed by the petitioner seeking quashment of the orders dated 02.02.2017 and 21.06.2018 passed by the Judicial Magistrate First Class, Gwalior (M.P.), in Case No.

285/2017.

Short facts of the case are that the non-applicant instituted a case under Section 138 of the Negotiable Instruments Act, 1881 before the Court of Judicial Magistrate First Class, Gwalior, through his counsel on 22.12.2015 (Annexure P/1). After filing of the case, the respondent sought time for payment of court fees and for arguments regarding the registration of the case. The respondent deposited the court fees on 05.07.2016 and on the same date again sought time for arguments on registration. During the pendency of the complaint, the complainant expired on 26.11.2016 (Annexure P/3). Despite being aware of the death of the complainant, the respondent’s counsel, by suppressing this fact, got the complaint registered on 02.02.2017 (Annexure P-4), i.e., after the death of the complainant. Subsequently, the respondent filed an application on 13.06.2018 (Annexure P-5) for bringing the legal heirs of the deceased Dhara Singh on record, more than a year after the death, which was when the petitioner became aware of the death of the complainant. The petitioner filed a reply to this application, denying all the facts and, by way of a special plea, specifically contending that the respondent, by misrepresenting the court and suppressing the death of Dhara Singh, had got the complaint registered on 02.02.2017.

The learned Trial court, vide order dated 21.06.2018, allowed the said application and directed that the legal representatives of the deceased be taken on record. Being aggrieved by the order dated 02.02.2017 and subsequent order dated 21.06.2018, the present petition has been filed. Leanred counsel for the petitioner has submitted before this Court that the impugned orders are contrary to law, it before taking cognizance of the offence and issuing process, it failed to comply with the mandatory provisions of Section 200 of the Code of Criminal Procedure and though the complainant had admittedly expired on 26.11.2016, yet cognizance was taken on 02.02.2017 without examination of the complainant upon oath. Such an act is wholly without jurisdiction and renders the order dated 02.02.2017 void ab initio. In addition to the above, the learned trial court completely failed to appreciate and apply the provisions of Section 256 of the Code of Criminal Procedure, which specifically governs the consequence of absence or death of the complainant in summons cases, as Section 256 CrPC mandates that when the complainant does not appear on the day fixed for hearing, the Magistrate shall acquit the accused, unless for some reason he thinks it proper to adjourn the hearing or dispense with the complainant’s attendance and the provision further contemplates that where the complainant is dead, the Magistrate may permit the prosecution to be continued by the legal representative of the complainant. It is further submitted that the discretion under Section 256 CrPC can be exercised only when a validly instituted complaint is pending before the Court and the complainant dies during the course of trial, but in the present case, the complainant had already expired prior to registration of the complaint and before cognizance was taken, therefore, the question of permitting the legal representative to continue the prosecution under Section 256 CrPC did not arise at all.

It is further submitted that even assuming, without admitting, that Section 256 CrPC was applicable, the learned trial court could not have permitted substitution of the legal representative af