Death of Complainant in Cheque Bouncing 138 N.I. Act Complaint case

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A case under Section 138 of the Negotiable Instruments Act, 1881 is filed when a cheque bounces and is dishonored. It is an offence punishable with imprisonment upto two years, or with fine upto twice the cheque amount, or both.

Such a complain case of cheque bouncing is filed before the Metropolitan Magistrate (in a Metropolitan area) or Judicial Magsitrate. Being a criminal offence, the accused is taken to task and either usually settles the case or has to suffer the conviction.

If the accused person in a cheque bouncing 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 in limitation) because criminal liability cannot be shifted to the legal heirs of the accused person and the case under Section 138 of the Negotiable Instruments Act, 1881 being criminal in nature, the liability of the accused cannot shift to the legal heirs of the complainant.

What will happen to the cheque bouncing case when the Complainant in the case dies? Will the case get over or the court will allow the Legal Representatives to continue with the case?

Section 256 of the Code of Criminal Procedure, 1973 in Chapter XX with the heading “Trial of summons cases by Magistrates” which is about non appearance or death of complainant is as follows:

256. Non-appearance or death of complainant.—(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.

(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death.”

Also, Section 302 of the Criminal Procedure Code, 1973 which provides for “permission to conduct prosecution” is as follows:

302. Permission to conduct prosecution.—(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer 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.”

Section 256 of the Code of Criminal Procedure, 1973 is pari materia to Section 247 of the Criminal Procedure Code, 1898 and the Supreme Court of India had decided in the case of Ashwin Nanubhai Vyas v. State of Maharashtra[1] where a complainant had filed a complaint under Sections 498 and 496 of the Indian Penal Code, however during the pendency of the complaint, the complainant had died, so the mother of the deceased complainant had filed an application for substituting her as the complainant and to continue with the proceedings. The magistrate allowed the application, however, the High Court in appeal dismissed the order of the Magistrate. So, the Supreme Court upholding the order of the Magistrate (whereby he allowed the application for substituting the mother of the complainant as a complainant) observed,

4. Mr Keswani for Vyas, in support of the abatement of the case, relied upon the analogy of Section 431 under which appeals abate and Sections 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 Section 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 punishable with imprisonment of less than one year. This not being the trial of a summons case but a committal inquiry, Section 247 neither applies nor can it furnish any valid analogy. Similarly, Section 259, which occurs in the Chapter on the trial of warrant cases, that is to say, cases triable by a Magistrate and punishable with imprisonment exceeding one year can furnish no analogy. Under Section 259, if the offence being tried as a warrant case is compoundable or is not cognizable the Magistrate may discharge the accused before the charge is framed if the complainant remains absent. Once again this section cannot apply because the Presidency Magistrate was not trying the case under Chapter XXI.”

Further, with reference to Section 495 of the Criminal Procedure Code, 1898 (which is pari materia to Section 302 of the Code of Criminal Procedure, 1973), in which permission to conduct prosecution is sought, the Supreme Court observed,

7. Mr Keswani contends that the Presidency Magistrate has made a “substitution” of a new complainant and there is nothing in the Code which warrants the substitution of one complainant for another. It is true that the Presidency Magistrate has used the word “substitute” but that is not the effect of the order. What the Presidency Magistrate has done is to allow the mother to act as the complainant to continue the prosecution. This power was undoubtedly possessed by the Presidency Magistrate because of Section 495 of the Code by which courts are empowered (with some exceptions) to authorise the conduct of prosecution by any person. 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.”

Thus, the Supreme Court in the above case held that the mother of the complainant can be given permission to conduct the prosecution of the complaint under the provisions of Section 302 of the Criminal Procedure Code, 1973 and the accused person(s) will not be acquitted under Section 256 Cr.P.C, therefore, if the complainant dies, the Legal Heir / Representative can be given the permission to prosecute the case and can be substituted.

Placing reliance on the above judgment the Supreme Court had recently in the case of Chand Devi Daga and Ors. v. Manju K. Humatani and Ors[2] decided that vide Section 302 CrPC, which relates to permission to conduct prosecution, as well as the decisions of the Supreme Court on the issue concerned, the High Court did not commit any error in allowing the legal heirs of the deceased complainant to prosecute the petition pending before it.

Although, there are a few conflicting decisions of various High Courts some of which have held that the accused should be acquitted and in some the High Courts have said that the case should go on, the Supreme Court vide the above judgments have cleared the position that once the complainant dies during the pendency of the complaint in the court, the Legal Representatives or Legal heirs of the Complainant can file an application under Section 302 of the Criminal Procedure Code, 1973 to seek permission to conduct the prosecution of the case.

Therefore, in a case under Section 138 of the Negotiable Instrument Act, 1881 of cheque bouncing, in case the complainant dies in the complaint case (during the case is still pending in the court for adjudication), in that case, the LRs of the complainant can move an application under Section 302 Cr.P.C. for permission to prosecute in the case.

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[1] AIR 1967 SC 983 : 1967 Cri LJ 943

[2] (2018) 1 SCC 71

About Alabhya Dhamija

Alabhya is an Advocate practicing at Delhi High Court and other courts in Delhi. Contact: alabhya@dhamija.com

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