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TMI Blog2022 (4) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Act laying down that on account of death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. The impugned judgment and order is hereby quashed and set aside and the matter is remanded to the trial court to decide and dispose of the matter after giving reasonable opportunities to the parties within a period of two months from the date of receipt of this order - appeal allowed. - R/Criminal Appeal No. 1585 of 2006 - - - Dated:- 31-3-2022 - Rajendra M. Sareen, J. For the Appellant : Sureshm Shah and Mehul S. Shah For the Respondents : Jitendra Malkan JUDGMENT 1. This Appeal is filed by the appellant under Section 378(1) and (4) of the Criminal Procedure Code, 1973 against the judgment and order dated 20.04.2005 passed below Ex.53 by the learned Judicial Magistrate, First Class, Visavadar in Criminal Case No. 211 of 1999, refusing to join the appellant as complainant and acquitting the private respondents Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint does not have any effect on the trial to proceed before the trial court and the complaint/case does not abate, particularly when the appellant being heir of the original complainant, has filed application for being substituted as complainant. 6. Mr. Raval has further submitted that the trial court ought to have considered that as per settled position of law, the present appellant is entitled to be substituted as a complainant, being the heir of the deceased complainant. He further submitted that the trial court ought to have joined the appellant as complainant and proceeded further with the trial by exercising powers under section 302 of the Code of Criminal Procedure. That the lower court has erred to interpreting section 256 of the Code of Criminal Procedure. The lower court erred in holding that the decisions cited from the complainant's side is not helpful to the appellant. The trial court failed to appreciate that provisions of section 256 of the Code of Criminal Procedure is applicable. That the impugned order is erroneous, illegal, unsustainable and liable to be set aside. Mr. Raval, learned advocate for the appellant has relied upon the decision of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant herein-original filed a complaint for the offence under sections 406, 420 and 114 of the Indian Penal Code and under section 138 read with section 142 of the Code of Criminal Procedure, and Court Inquiry was conducted under section 202 of the Code of Criminal Procedure and summons was issued against the accused - private respondents herein under section 204 of the Code of Criminal Procedure. The original complainant - father of the appellant herein expired on 4/10/2001. On the death of his father, the appellant being son and legal representative of his father, made application on 2/9/2003 for substituting himself in place of his father in the complaint. However, the same came to be rejected by the trial court by the impugned judgment and order. 8.2. As held by this Court in the case of Anil G. Shah versus Chitranjan Company and others (supra), relied upon by the learned advocate for the appellant, once cognizance of offence has been taken by the magistrate, trial will have its end after following due process and procedure as laid down in the Code of Criminal Procedure and there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act layi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... validity of the order dated 23.1.2006. By reason of the impugned judgment, a learned single judge of the High Court set aside the said judgment of acquittal. In the said case the respondents themselves did not seriously press their applications for their substitution in place of the original complainant. In the said case it is held that Section 256 of the Code of Criminal Procedure empowers a Magistrate to pass an order of acquittal on non-appearance or death of the complainant. In the said case, the complaint petition was filed in the year 2001, the original complainant Rami Reddy died in 2003. A large number of dates were fixed for hearing of the case. Although, on some dates, the respondents were either present in court in person or were represented by their Advocate, but as noticed hereinbefore, continuously for about 15 dates fixed for hearing, they remained absent. The ingredients of Section 256(1) are: (i) that summons must have been issued on a complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other date; and (iii) the date on which the order under Section 256(1) can be passed is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cognizance of offence has been taken by the magistrate, trial will have its end after following due process and procedure as laid down in the code of criminal procedure and there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act laying down that on account of death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. In the present case also cognizance has been taken by the court and summons was issued by the trial court against the accused and hence on death of the original complainant, the proceedings do not abate and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial. 11. The aforesaid law laid down in the case of Anil G. Shah (supra) has been reiterated by co-ordinate Bench of this Court in in Criminal Appeal No. 2069 of 2018 in its judgment delivered on 06/08/2019. 12. For t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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