Section 138 NI Act: death of complainnat- Effect ON COMPLAINT

It is necessary to deal with yet another aspect in respect of prosecuting the complaint u/s 138 of Negotiable Instruments Act i.e in case of death of the complainant what will be the effect on such complaint-whether the same could still be prosecuted or the complaint shall abate. It is no res integra that in case of death of accused the complaint shall abate, but what will be the situation in case of death of the complainant. The answer to the aforesaid aspect shall be found herein2004 SCC OnLine Gau 130 and captioned as Kushal Kumar Talukdar Versus Chandra Pd. Goenka 2005 CRILJ599 may be referred to.

The moot point is that in a case under Section 138 of the Negotiable Instruments Act, 1881, if the complainant dies after taking of congnisance by the Magistrate, whether the proceedings abate or trial has to be taken to its logical end, following due process and the procedure laid down in Criminal Procedure Code. It is worthwhile to mention that there is no provision in the Code of Criminal Procedure or the Negotiable Instruments Act laying down that on account of death of payee, the trial must abate. Therefore, it is to be ascertained, if the legal heirs of the original complainant are entitled to come forward and ask for allowing them to represent the complainant, so as to enable the Court to proceed further with the trial.

There is no provision for substitution of a deceased complainant under the Cr. P.C. either, but a Magistrate has the power under Section 302 of Cr. P.C., to permit any one to conduct prosecution. In Kushal Kumar Talukdar (Supra), Son of the deceased complainant, came forward to continue to proceed with the complaint and after finding that there was no impediment on the part of the Court, in allowing the Son of the deceased complainant to represent the complainant, the substitution application was allowed. A challenge was made to the substitution order and it was prayed that the complaint u/s 138 of Negotiable Instruments Act stood abated.

The question, in this context as often been raised by the accused-petitioner is this:

Whether the impugned order substituting the opposite party herein, who is the son of the said deceased, as complainant, in the complaint case aforementioned, which arose out of a complaint lodged for prosecution of the accused-petitioner under Section 138, read with Section 142 of the N.I. Act, is legally sustainable under Section 256 of the Code of Criminal Procedure?

As divergent views were being expressed by the High Courts on the question as to whether a complainant's death brings a complete end to the proceedings in a summons procedure case, the Law Commission, in its 41^st Report, had recommended as follows:

“A question has arisen whether the complainant's death ends the proceedings in a summons case and we find that different views have been expressed on this question. As a matter of policy, we think the answer should depend on the nature of the case and the stage of the proceedings at which death occurs. It is impracticable

However, notwithstanding the above recommendations, Section 256, which finally emerged under the Code of Criminal Procedure, 1973, reads 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.”

From a bare reading of Section 256, it clearly transpires that Section 256, same as Section 247, comes into play after cognizance has been taken by the Magistrate and summons has already been issued to the accused. Hence, Section 256 does not apply to a case in which the complainant dies before cognizance is taken and the summons is issued.

A careful reading of Section 256, as it stands in the Code of Criminal Procedure, 1973, makes it clear that this Section deals with the consequences of the absence of the complainant on account of his death as well as on account of any other reason. However, before answering the question as to whether the death of the complainant will bring a complete end to the trial of an accused in a summons case and force the Magistrate to acquit; him and/or the question as to whether the Magistrate has the power to allow the deceased complainant to be substituted or represented by anyone it is of immense importance to not that it is sub-section (2) of Section 256, which makes provisions for application of the provisions of sub-section (1) of Section 256 to the cases of none-appearance of the complainant on account of his death. Hence, before entering into the discussion of the scope of sub-section (2) of Section 256 and as to what it really lays down it is imperative, for the purpose of better appreciation of the scope and ambit of Section 256, to consider as to what sub-section (1) of Section 256 and the proviso that Sub-section (1) of Section 256 has undergone in the Code of Criminal Procedure, 1973, from what Section 247 of the Code of Criminal Procedure, 1809 had envisaged.

What is to be ascertained is as to whether the death of the complainant will bring end to the trial of an accused in a summons case and force the Magistrate to acquit; him and/or the Magistrate indeed has the power to allow the deceased complainant to be substituted or represented by anyone? Section 256 (2), makes provisions for application of the provisions of sub-section (1) of Section 256 to the cases of none-appearance of the complainant on account of his death. In order to appreciate the scope and ambit of Section 256, it is to be noted that what changes sub-section (1) of Section 256 and the proviso that Sub-section (1) of Section 256 has undergone in the Code of Criminal Procedure, 1973, from what Section 247 of the Code of Criminal Procedure, 1809 had envisaged.

A composite reading of the provisions of Section 247 vis-a-vis Section 256, reveals that if the summons had been issued on complaint, and upon the day appointed for the appearance of the accused, or any day subsequent thereto, to which the hearing might have been adjourned, accused could be acquitted, unless, for some reason, he thought proper to adjourn the hearing of the case some other day.

However, while the provision to Section 247, as the same stood after the Amendment Act 26 of 1955, vested a discretion in the Magistrate to dispense with personal attendance of the complainant and proceed with the case if the Magistrate was of the opinion that the personal attendance of the complainant was not necessary the proviso to Section 250(1) has further widened the scope of the exercise of the proviso to Section 256(1) has now made possible for the Magistrate to dispense with the personal attendance of the complainant and proceed with the trial not only when, in the opinion of the Magistrate, the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution.

What emerges, therefore, is that initially, the proviso to Section 247, as it stood in Code of Criminal Procedure, 1809, vested in the Magistrate the discretion to dispense with the personal attendance of the complainant only when the complainant was a public servant and the Magistrate was of the opinion that the personal attendance of the public servant was not required. The proviso to Section 247, as amended in the year 1955, widened the, scope of this discretion of the Magistrate to dispense with the personal attendance of the complainant by laying down to the effect that the Magistrate can dispense with the personal attendance of the complainant irrespective of the fact as to whether the complainant was a public servant or not, the only limitation, however, being that the Magistrate had to form an opinion, before exercising such discretion, that in the facts and circumstances of the case, personal attendance of the complainant was not necessary. The proviso to Section 256(1) has further widened the discretion so vested in the Magistrate by making it clear that the Magistrate can dispense with the personal attendance of the complainant and proceed with the trial not only when the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution.

Another question that may arise is this:    

Is there any difference between the summons triable case, wherein the complainant is represented by a pleader, and a summons triable case, wherein the complainant is represented by an officer conducting the prosecution?

Section 2(q) Cr. P.C. defines the word “pleader” when used with reference to any proceeding in any Court, means a person authorised by or under any law, for the time being in force, to practise in such     Court, and includes, any other person appointed with the permission of the Court to act in such proceeding.

A close reading of Section 2(q) Cr. P.C. shall reflect that the pleader means a person, who is authorised, by or under any law, to practise as an advocate and includes a person appointed with the permission of the Court to act in such proceeding. Section 24 read with Section 25 Cr. P.C. relates to appointment of Public Prosecutors, Addl. Public Prosecutors and Asstt. Public Prosecutors. Section 24 (1) makes it clear that the appointment of Public Prosecutors and Addl. Public Prosecutors is for conducting prosecution, appeal, etc. Section 25(1) makes it clear that the appointment of Assistant Public Prosecutors is “for conducting prosecution in the Court of Magistrates”. This apart, Section 301 Cr. P.C. shows that though any private person may instruct a pleader to prosecute any person in any Court, yet it is the Public Prosecutor or Assistant Public Prosecutor, who remains in charge of the case and responsible for conducting the prosecution, and the pleader, so instructed, by a private person, acts under the directions of the Prosecutor. Coupled with this, Section 301 Cr. P.C. shows that the Public Prosecutor or Assistant Public Prosecutor, in charge of a case, may appear and plead without any authority before the Court in which the trial or appeal is pending. Though, Section 302 Cr. P.C. empowers Magistrates to permit any person to conduct prosecution, the fact remains that if a person comes forward to conduct prosecution as a pleader appointed by the complainant, his appointment as a pleader must subsist on the day, when he is to be permitted to appear as a pleader of the complainant.

Thus, as per the scheme of the Code of Criminal Procedure, there is a difference between a pleader, appointed by a private person, and a person, who is appointed, in terms of Section 24 /25 Cr. P.C., as a Prosecutor by the State or the Central Government for conducting the prosecution in a given case. Keeping in mind that, if proviso to Section 256(1), is reverted to, it becomes abundantly clear that this proviso relates to both the contingencies, namely, when a complainant is represented by a pleader and also when a complainant is represented by an officer conducting the prosecution. The former indicates that the complainant, who lodged the complaint, is a private individual and is represented by his own advocate, the latter shows that the complaint has been lodged in terms of Section 190(1)(a) read with Clause (a) of the first proviso, to Section 200 of the Cr. P.C. and is conducted by an officer conducting prosecution.

What emanates from the above discussion, as a whole, is that initially, the proviso to Section 247, as it stood in Code of Criminal Procedure, 1809, vested in the Magistrate the discretion to dispense with the personal attendance of the complainant only when the complainant was a public servant and the Magistrate was of the opinion that the personal attendance of the public servant was not required. The proviso to Section 247, as amended in the year 1955, widened the, scope of this discretion of the Magistrate to dispense with the personal attendance of the complainant by laying down to the effect that the Magistrate can dispense with the personal attendance of the complainant irrespective of the fact as to whether the complainant was a public servant or not, the only limitation, however, being that the Magistrate had to form an opinion, before exercising such discretion, that in the facts and circumstances of the case, personal attendance of the complainant was not necessary. The proviso to Section 256(1) has further widened the discretion so vested in the Magistrate by making it clear that the Magistrate can dispense with the personal attendance of the complainant and proceed with the trial not only when the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, but also when the complainant is represented by a pleader or by an officer conducting the prosecution.

Section 190 Cr. P.C. a Magistrate may take cognizance of any offence –

(a) upon receiving a complaint of facts, which constitute such offence,

(b) upon a police report of such facts,

(c) upon information received from any person other than a police officer or, upon his own knowledge, that such offence has been committed.

However, when the complaint has been lodged by a public servant acting or purporting to act in the discharge of his official duty, the Magistrate, taking cognizance of the offence on such a complaint, need not, in terms of Clause (a) of the first proviso to Section 200 Cr. P.C., examine the complainant and the witnesses, nor is there any necessity of holding, in terms of Section 202 Cr. P.C., an enquiry for the purpose of taking a decision as to whether process can be issued to the accused, provided, of course, that the Magistrate is, otherwise, satisfied that the contents of the complaint disclose commission of offence.

As per Sub-section (2) of Section 256, it merely states that the provisions of sub-section (1) of Section 256 shall, so far as may be, apply also to the case, where the non-appearance of the complainant is due to his death. The question, therefore, is as to how far the provisions of sub-section (1) of Section 256 and the proviso thereto can be applied to a case, where the complainant is absent on account of his death and how far sub-section (2) of Section 256 differ, in this regard from sub-section (1) of Section 256?

It is worth noticing that the expression “so far as may be”, occurring in sub-section (2) of Section 256, is of immense significance as the provisions of sub-section (1) of Section 256 including the proviso thereto, lay down the various conditions in which the absence of the complainant, on account of reasons other than his death, may not ipso facto result into acquittal of the accused, shall be applied, to the extent possible, even when the complainant's absence is on account of his death. In other words, the provisions of Section 256(1) and the proviso thereto do not apply, in their entirety, to a case, where the complainant, in a summons case, dies after the summons has been issued to the accused.

While considering the question as to how far sub-section (2) of Section 256 differs from Sub-section (1) of section 256, it is of utmost importance to note that one of the powers, which the proviso to sub-section (1) of Section 256 gives to the Magistrate is the power to dispense with the personal attendance of the complainant and proceed with the case if the complainant is represented by a pleader or by an officer conducting the prosecution?

The question, therefore, which, now, arises is this: If the absence of the complainant is on account of his death, can the Magistrate allow the summons case to proceed merely on the ground that the deceased complainant is represented by his pleader or by an officer conducting the prosecution? In order to correctly appreciate the question as to whether a pleader appointed by a complainant, in a summons triable case, can continue to represent the deceased complainant as the deceased complainant's pleader, one has to understand the nature of the relationship between a party and his pleader.

While considering the above aspect of the matter, it is of paramount importance to note that the appointment of a pleader by a person is contractual in nature. The appointment of a pleader by a party is essentially appointment of an attorney and the vakalatnama is nothing, but a power of attorney or an authority to represent the party concerned, who may even be a complainant in a criminal case whether the appointment of the pleader is in a criminal case or in a civil case is immaterial. Reference in this regard may be have to the decision in Ramdeo Trilokchand Agarwal v. Lalu Natha, 502 AIR 1937 Nagpur 65, wherein Mysore High Court, while dealing with vakalatnama, observed and held as follows:

“In Stroud's Judicial Dictionary, “power of attorney” is defined as: An authority, whereby one “is set in: the tune, stead or place of another” to act for him. In India, under the Stamp Act S. 2(21), a power of attorney, for the purposes of the Stamp Act, is defined in a way that excludes a vakalatnama, because it excludes a document, which carries a court-fee stamp, but that definition, for the purposes of the Stamp Act, in my opinion, makes it quite clear that if it were not for that definition, a vakalatnama being a power of attorney, would require not only a court fee stamp under the Court fees Act, but also a stamp under the Stamp Act and to avoid that double stamp, it was necessary in the Stamp Act to exclude the vakalatnama.”

The fact remains that the appointment of a pleader by a person is contractual in nature, and the fact that it is so recognised by Legislature is evident from a bare reading of Order 22, Rule 10A of the CPC, which lays down as follows:

“10A. Duty of a pleader to communicate to Court death of a party. —

Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and for this purpose, the contract between a pleader and the deceased party shall be deemed to subsist.”

Thus, in a civil case, a pleader's appointment ends on the death of the person, who appointed him except to the extent as Order 22, Rule 10A of the Code of Civil Procedure specifically permits. Therefore, when the appellant dies during pendency of even a civil appeal, the power given by him to his pleader comes to an end and ceases to be in force. The only exception, however, is what Order 22, Rule 10A of the CPC provides for, namely, that the contract between the pleader and the deceased party “shall be deemed to subsist” only for the purpose of informing the Court that the party represented by him has died. Thus, the appointment of a pleader by a private person is nothing, but a kind of contract and this contract ends with the death of the ‘person’, who had appointed the pleader.

In criminal cases too, same as in the civil cases, the relationship of the complainant with his pleader as the client of the latter comes to an end on the death of the complainant. Hence, when the complainant dies, his pleader retains no authority and cannot, therefore, be allowed to continue to proceed with the complaint in the capacity of the pleader of the deceased complainant.

In Kushal Kumar Talukdar (Supra) it is held as under:

40. In short, a careful reading of sub-section (2) of Section 256 shows that when the complainant dies, the pleader, appointed by-the complainant, ceases to be pleader of the complainant and cannot be allowed to represent the complainant, whereas an officer conducting the prosecution of the case based on the complaint lodged by a public servant, continues as an officer conducting the prosecution, notwithstanding the death of the public servant as complainant can, therefore, be allowed to continue to conduct the prosecution.

41. In other words, after the summons in a complaint case has been issued, then, on the day appointed for the appearance of the accused or on any day subsequent thereto to which hearing may be adjourned, the complainant does not appear, on account of his death, the Magistrate cannot proceed with the case merely on the ground that the pleader appointed by the complainant is present to represent the complainant. However, if the complainant is represented by an officer conducting the prosecution or if the nature of the complaint is such that the personal appearance of the complainant is not necessary, the Magistrate may proceed with the case subject to what have been mentioned hereinabove.

42. Hence, when sub-section (2) of Section 256 is read, in the light of the proviso to Section 256(1), it becomes abundantly clear that even when the absence of the, complainant is due to his death, the Magistrate may still proceed with the case if the Magistrate is of the opinion that the personal attendance of the complainant is not necessary or when the complainant is represented by an officer conducting the prosecution. If the Magistrate dispenses with personal attendance of the deceased complainant on the ground that his presence is not necessary, the Magistrate may permit ‘any person’ to conduct the prosecution. I am guided to adopt this view from the decision in Ashwin Nanu Bhai Vyas v. State of Maharashtra, 1967 Cri. LJ 943 (SC).

The following inference in Kushal Kumar Talukdar (Supra) is worth noting:

“44. From what has been pointed out by the Apex Court in Ashwin Nanu Bhai Vyas (supra), it is clear that though there is no provision for substitution, Section 302(1), which has, now, replaced Section 495 Cr. P.C., empowers the Court to authorise the conduct of prosecution by any person and the word “any person” would include the son of the complainant in a case of present nature. The accused-opposite party herein, being the son of the complainant stands on the footing of “any person” as envisaged by Section 302(1) Cr. P.C. As correctly observed in Raviselvam v. Nilini Vijaya Kumar, reported in 1999 (4) Crimes 209, the endeavour must be to do justice and not to take advantage or technicalities. The urge to resort to easy way out must give way to judicial justness.

45. On an examination of all the relevant provisions of the Criminal Procedure Code, the proposition that criminal proceedings abate on the death of the complainant appears to be legally unfounded and unacceptable. Criminal proceedings, legally instituted, do not terminate or abate merely on the death of the complainant. The cause of action for civil action bears no analogy to complaints of crime. The object of Section 256 Cr. P.C. is succinctly explained by the Apex Court in Associated Cement Co. Ltd. v. Keshvanand, reported in 1998 Cri. LJ 856 (SC), in the following words:

“17. What was the purpose of including a provision like Section 247 in the old Code (or S. 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put to much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent. Court has a duty to acquit the accused in invitum.

18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day, the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned, the Court is free to dismiss the complaint and acquit, the accused. But if the presence of the complainant on that day was quite unnecessary, then, resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.”

The Delhi High Court in Om Saran v. Mrs. Satya Dhawan, reported in 1990 Cri. L.J. 1619, has laid down that the Legislature has vested a discretion in the Magistrate to decide, keeping in view the facts of each case, as to whether, on non-appearance of the complainant or on the death of the complainant in a summons case, the accused, should be acquitted or not and if he, for good reasons, thinks it proper, the Magistrate can proceed with the complaint, and adjourn the matter in the absence of the complainant or when the complainant has died.

The Gauhati High Court in Kushal Kumar Talukdar (Supra) has noted that it was glaring to the eyes that the complaint relates to the prosecution of the accused-petitioner for the offence allegedly committed by the accused-petitioner under Section 138 read with Section 142 of the N.I. Act. 51. The allegation is that the cheque issued by the accused, when presented for encashment, was returned with an endorsement “Payment stopped by the drawer”. The complainant, then, sent a notice to the accused-petitioner demanding payment of the amount for which the cheque in question, was drawn but despite receiving the notice/no payment was made by the accused-petitioner. The allegations so made, which may or may not be true, disclose commission of offence by the accused-petitioner under Section 138 read with Section 142 of the N.I. Act. In fact, the fact that the contents of the complainant disclose commission of the offence aforementioned is not, at this stage, in dispute. The important and necessary ingredients to be proved are the issuance of cheque, dishonour of the cheque, issuance of legal notice by the complainant demanding payment to the accused after the cheques had bounced. These are facts, which can be considered and proved in the absence of the complainant. Whether stopping of payment of cheque by a drawer amounts to dishonour of cheque or not within the meaning of Section 138 of the N.I. Act is a question as to whether the contents of the complaint, in question, when, read as a whole, amount to commission of offences under Section 138 of the NI Act. The complainant, who was dead, is, now, represented by the applicant and the applicant is the son of the deceased. In such a situation, there is no reason why the complaint case, in question, cannot be allowed to proceed. Viewed from this angle, the exercise of the discretion by the learned Magistrate to allow the opposite party therein (who is the son of the deceased complainant) to represent the complainant is based on sound judicial principles and is unimpeachable in law.

The Gujarat High Court in Anil G. Shah v. J. Chattaranjan Co., 1998 GLJ 3870 (Guj.) has laid down that in a case under Section 138 of the N.I. Act, where the complainant dies after taking of cognizance, the proceedings do not abate and trial has to be taken to its logical end following due process and the procedure laid down in Criminal Procedure Code. It has also been held that there is no provision in the Code of Criminal Procedure or the N.I. Act laying down that on account of death of payee, the trial must abate and as such, the proceedings cannot abate on the death of the complainant payee. Therefore, the legal heirs of the original complainant are entitled to come forward and ask for allowing them to represent the complainant so as to enable the Court to proceed further with the trial.

The Kerala High Court has held so in T.N. Jayarajan  Vs Jayarajan 1993 (1) ALT(CRI)147 (supra), The Jammu and Kashmir High Court in Ashok Kumar v. Abdul Latif, 1989 Cri. LJ 1856 (J & K). and Andhra Pradesh High Court in Maddipatta Govindiah Naidu v. Yelaklauri Kamalamma, 1984 Cri. LJ 1326 (AP) has also held in similar line.

The aforesaid discussion clearly reflects that in case of a complainant dies after cognisance of the complaint u/s 138 of Negotiable Instruments Act and if the legal heirs of deceased come forward to prosecute ethe complaint, there is no embargo in prosecuting the complaint. It is worthwhile to state that offence under section 138 of Negotiable Instruments Act is documentary in nature and after cognisance is taken and as section 139 of Negotiable Instruments Act entails presumption in favour of the complainant and still further, the complaint could still be prosecuted in absence of the complainant, in the above backdrop, hence, substitution of the complainant could be allowed as is held in Kushal Kumar Talukdar (Supra).    It may be noted that the complaint u/s 138 of NI Act is not in the nature of assault etc that only the complainant will be privy of and probably for want of direct evidence, the conclusion cannot be arrived at, in case the complainant is deceased. What therefore follows is that there is no prohibition in continuing with the prosecution on behalf of the deceased complainant by their legal heirs and a Magistrate can substitute the complainant in the perspective as referred to above. No doubt, the discretion vested in the Magistrate has to be exercised on the facts and circumstances of the case of each case.

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                                      Anil K Khaware

                                      Founder & Senior Associate

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