IMPORTANT POINT
The complaint filed under Section 200, Cr. P.C. or under Section 142 of the Negotiable Instruments Act would not ipso facto terminate or abate upon the death of the complainant and his LRs., their agents or power of attorney holder could be permitted to prosecute the complaint under Section 302(2), Cr. P.C. or under Section 142 of the N.I. Act.

Headnote:Negotiable Instruments Act, 1881 - Sections 138, 142 - Complaint for offence under Section 138, 142 - Death of complainant during pendency of proceedings - Her son and daughter, staying in USA through their power of attorney holder filed application under Section 302(1), Cr. P.C. seeking permission to conduct prosecution - Objections - Whether in proceeding, initiated under Section 142, on death of complainant, any other person could be permitted to prosecute complaint? (Yes) -Complaint filed under Section 200, Cr. P.C. or under Section 142 of N.I. Act would not ipso facto terminate or abate upon death of complainant - LRs, their agents or power of attorney holder could be permitted to prosecute complaint under Section 302(2), Cr. P.C. or under Section 142 of the Act - An agent or a power of attorney holder of payee of cheque may be permitted to prosecute complaint.
       Held: A probate is not necessary to prosecute a criminal complaint as L.Rs of the complaint. The question is who is competent to prosecute the complaint after the death of the complainant and whether the L.Rs are entitled to prosecute the complaint in these cases, applications were made by the power of attorney under Section 302(1) Cr. P.C. only and the main objection was that the application was not filed under Section 302(2) Cr. P.C. After perusal of various provisions of the Code and Section 142 of the N.I. Act, we answer the points referred to us as follows:
       (1) The complaint filed under Section 200 Cr. P.C. or under Section 142 of the N.I. Act would not ipso facto terminate or abate upon the death of the complainant.
       (2) In a proceeding initiated under Section 142 of the N.I. Act, on the death of the complainant his L.Rs, their agents or power of attorney holder could be permitted to prosecute the complaint under Section 302(2) Cr. P.C. or under Section 142 of the N.I. Act.
       (3) An agent or a power of attorney holder of payee of cheque or holder in due course may be permitted to prosecute the complaint unless there is a specific bar in the Code for such persons to lodge the complaint. But once the complaint is filed by the aggrieved persons, the prosecution can be continued by the interested person or persons named above.
       Before parting with this case, we may add that no provision of law should be construed so as to defeat the purpose of the Act on technicalities. It is desirable in a case of this nature for L.Rs of the deceased to come on record and prosecute the complaint in person if possible. In the event of any disability, they may seek the permission of the Court to prosecute such complaint through their agent or power of attorney. If such applications are made, the Criminal Courts shall, consider it on merits and pass appropriate orders as required under Section 302(2) Cr. P.C. or under Section 142 of the N.I. Act. (Para 15)
       Result: Revision disposed of accordingly.

ORDER

B.N. Narayan, J. - This reference is made under Section 8 of the Karnataka High Court Act, by His Lordship Justice S.R. Bannurmath for deciding three questions formulated by him in view of the law of general importance involved in the reference. The Hon'ble Chief Justice has placed this matter before this Bench for appropriate orders.

2. The questions which are referred for our consideration are:

(1) In a proceeding, initiated under Section 142 of the Negotiable Instruments Act, on the death of the complainant, whether any other person could be permitted to prosecute the complaint and under what provisions of Cr. P.C.?

(2) If it is held that any person could be permitted to prosecute the complaint who is the competent person who could be permitted to prosecute the complaint?

(3) Whether that person has to prosecute the complaint personally or whether he could be permitted to prosecute the complaint through a power of attorney holder?

3. These questions arise in the backdrop of certain facts which came up for consideration in the said revisions. One Mrs. Bolly Cariappa Hindley - an Indian Christian presented a complaint under Section 200, Cr. P.C. against the accused persons in the Court of VI Additional Chief Metropolitan Magistrate, Bangalore, initiating proceedings for an offence punishable under Section 138 of the Negotiable Instruments Act ("the Act" for short). The learned Magistrate has taken cognizance of the offence alleged in the complaint. The complainant died during the pendency of the proceedings. Her son and daughter viz., respondents herein who are presently staying in United States of America through their general power of attorney holder filed an application under the provisions of Section 302(1), Cr. P.C. seeking permission to conduct the prosecution initiated by the deceased complainant. This application was opposed by the petitioner-accused inter alia contending that the application is not maintainable; that the provisions of Section 302 deal with the prosecution to be conducted by any person other than the police officer and the present criminal proceeding not being of such nature, the application itself is not maintainable. This proceeding initiated by the complainant for the offence under Section 138 of the Act Is the personal litigation and the present applicants cannot come on record as legal representatives, one like under Civil Procedure Code. The complainant being a Christian is governed by the Indian Succession Act and in the absence of probate in the matter, the respondents cannot come on record. At any rate the present application filed by the general power of attorney holder of the applicants itself is not maintainable even it is held that the applicants are entitled to prosecute the case. The learned Magistrate has rejected all these contentions and allowed the application filed by the respondents, the legality of which is questioned before the learned Single Judge in these revisions.

4. Similar contentions were canvassed for consideration before the learned Single Judge. It is contended that the application is not filed under Section 302(2), Cr. P.C., and the present application filed under Section 302(1), Cr. P.C. is not maintainable.

5. The respondents refuted these contentions contending that it was permissible for the respondents by virtue of Section 302(2), Cr. P.C. to seek permission of the Magistrate to prosecute the case further; moreover they are not stranger but the son and daughter of the complainant and they have subsisting interest in the property in respect of which the petitioner had issued cheque which came to be dishonoured. Learned Counsel on both sides relied upon a few decisions in support of their respective contentions. It is in this background the learned Single Judge expressed certain doubts which according to him are not answered in S. Reddappa v. M. Vijaya1. It is held in Reddappa's case that in a proceeding under Section 138 of the Act, the death of the complainan

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday

Cases Referred (5)

Judicial Analysis