9911796707
TMI Blog2007 (3) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... of accused No. 1 and son-in-law of the complainant. It was the case of the complainant that he was the owner of a bungalow which he sold in May, 1992 through accused No. 2 and deposited the amount of consideration in Bank. The accused No. 2 dishonestly represented to the complainant that he was having some proposals of land for sale and he would get it at a cheaper rate if the complainant was interested in such investment. It would earn more profit to the complainant and he would also get exemption from payment of capital gains. But the complainant wanted to go on Haj (Saudi Arabia) for a month on June 1, 1992. The accused No. 2 again dishonestly represented to the complainant that he could very well go to tour and the accused No. 2 would invest the money in suitable and beneficial proposals. Relying on such dishonest representations by accused No. 2, the complainant gave him five blank signed cheques as also withdrawal slips so as to enable appellant No. 2 to invest amount in purchase of property and to pay such amount to vendors. It was the case of the complainant that when he returned from Haj, he found that an amount of ₹ 5,15,000/- had already been withdrawn by appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) contending that no case was made out against them. The said application, however, was rejected by the Trial Court on August 25, 2004 holding that there was a prima facie case against the accused. Being aggrieved by the said order, the accused preferred revision which was also dismissed by the Sessions Court observing that there was a prima facie case against the accused for offences punishable under Sections 406, 420 read with 34 IPC. A Writ Petition against the said order met with the same fate, which has been challenged in the present appeal. On February 6, 2006, when the matter was placed for admission hearing, the following order was passed by this Court; Issue notice returnable within four weeks confined to the question whether the legal heirs could have continued with the complaint. Thereafter, on December 4, 2006, the matter was ordered to be placed for final disposal on a nonmiscellaneous day in February, 2007. That is how the matter has been placed before us. Reading of the order dated February 6, 2006, extracted hereinabove clearly shows that notice was confined to the question whether the legal heirs could have continued with the complaint. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On all these grounds, a prayer was made to dismiss the appeal. In our opinion, the orders passed by the courts below cannot be said to be illegal, unlawful or contrary to law. It is submitted by the learned counsel for the appellants that the Trial Court was wrong in relying upon Ashwin Nanubhai. In peculiar facts and circumstances of the case and keeping in view the scheme and relevant provisions of the Code of Criminal Procedure, 1898 ( old Code ), this Court granted such permission, but the ratio laid down in that case would not apply to the case on hand. In Ashwin Nanubhai, a complaint was filed under Section 198 of the old Code by one Kusum for offences punishable under Sections 417, 493 and 496 of IPC. It was the case of Kusum that Vyas went through a sham marriage with her, before a person who posed as an Officer from the office of the Registrar for Marriages. Subsequently, however, he abandoned her and married another. On being questioned, Vyas told her that he had never married her. According to Kusum, she became pregnant as a result of cohabitation, but in view of her serious ailment, Vyas took her to a clinic where under medical advice and on certificate granted by V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rying the case but only inquiring into it with a view to its committal to the Court of Session if the facts justified a committal. During this inquiry Kusum died. We have to determine what is the effect of the death of a complainant on an inquiry under Chapter XVIII in respect of offences requiring a complaint by the person aggrieved, after the complaint has been filed . It was further stated; Mr. Keshwani for Vyas, in support of the abatement of the case, relied upon the analogy of s. 431 under which appeals abate and ss. 247 and 259 under which on the complainant remaining absent, the court can acquit or discharge the accused. These analogies do not avail him because they provide for special situations. Inquiries and trials before the court are of several kinds. Section 247 occurs in Chapter XX which deals with the trial of summons cases by a Magistrate and s. 259 in Chapter XXI which deals with trial of warrant cases before Magistrates. Under the former, if summons is issued on a complaint and the complainant on any day remains absent from the court, unless it decides to proceed with the trial, must acquit the accused. This can only happen in the trial of cases, which are pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code would have said what would happen if the complainant remains absent . The Court also considered the provisions of Section 495 of the Code (similar to Section 302 of the present Code) and observed that though Presidency Magistrate used the word substitute , it was in effect continuation of prosecution by the mother. The power was undoubtedly possessed by Presidency Magistrate under Section 495 of the Code and the Court was empowered to authorize conduct of prosecution by any person. The Court stated; \005.The words any person would indubitably include the mother of the complainant in a case such as this. Section 198 itself contemplates that a complaint may be made by a person other than the person aggrieved and there seems to us no valid reason why in such a serious case we should hold that the death of the complainant puts an end to the prosecution . The learned counsel for the appellants submitted that the ratio laid down in Ashwin Nanubhai would not apply inasmuch as in that case the Court was concerned with offences punishable under Sections 493 and 496 of IPC. They were then triable by a Court of Session. In the instant case, we are concerned with the case pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct prosecution.\027 (1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission; Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader. The Court also considered Ashwin Nanubhai and observed; The question as to whether heirs of the complainant can be allowed to file an application under Section 302 of the Code to continue the prosecution is no longer res integra as the same has been concluded by a decision of this Court in the case of Ashwin Nanubhai Vyas v. State of Maharashtra and Anr., (1967) 1 SCR 807 in which case the Court was dealing with a case under Section 495 of the Code of Criminal Procedure, 1898, which is corresponding to Section 302 of the Code. In that case, it was laid down that upon the dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come final. Name of the first respondent was entered on May 14, 2000. Thereafter witnesses were also examined. In so far as application dated August 4, 2004 of the accused is concerned, it was under Section 239 of the Code which provides for discharge of accused. The only ground put forward by the accused was that no prima facie case had been made out against them. In the light of above facts also, in our opinion, this is not a fit case to exercise discretionary power under Article 136 of the Constitution. Finally, the contention that a civil suit is filed by the complainant and is pending has also not impressed us. If a civil suit is pending, an appropriate order will be passed by the competent Court. That, however, does not mean that if the accused have committed any offence, jurisdiction of criminal court would be ousted. Both the proceedings are separate, independent and one cannot abate or defeat the other. For the foregoing reasons, we are of the view that the courts below were right in permitting respondent No.1 to continue the prosecution by proceeding with the complaint filed by Shaikh Saheblal. In taking such decision, the courts had not committed any error of law w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
