Case Note & Summary
The appellant, Smt. Nirmal Dewan, is the widow of Shri Trilok Dewan, who had filed three separate complaints against the respondent, Anand Shroff, alleging offences under Section 138 of the Negotiable Instruments Act, 1881. The complaints were based on six cheques issued by the respondent towards repayment of a handloan, which were dishonoured due to insufficient funds. During the pendency of these complaints, Trilok Dewan died. The appellant filed applications to be substituted as the complainant. However, the Magistrate dismissed the complaints for non-prosecution under Section 256 of the Code of Criminal Procedure, 1973, on the ground that the complainant was absent. The appellant challenged these dismissals in three appeals before the Bombay High Court. The court noted that the Magistrate had not considered the appellant's substitution applications and had dismissed the complaints mechanically. The court held that the death of the original complainant was a valid reason for non-appearance and that the Magistrate should have allowed substitution. The appeals were allowed, the orders of dismissal were set aside, and the complaints were restored to the file of the Magistrate for further proceedings. The court directed the Magistrate to consider the substitution applications and proceed with the trial in accordance with law.
Headnote
A) Criminal Procedure Code - Section 256 CrPC - Dismissal for Non-Prosecution - Substitution of Legal Representative - The Magistrate dismissed three complaints under Section 138 of the Negotiable Instruments Act, 1881 for non-prosecution after the original complainant died. The appellant, his widow, sought substitution but the Magistrate did not consider her application. Held that the dismissal was improper as the Magistrate ought to have considered the substitution application and the death of the complainant was a valid reason for non-appearance. (Paras 1-11)
B) Negotiable Instruments Act - Section 138 - Dishonour of Cheques - Handloan - The original complainant alleged that the respondent issued six cheques towards repayment of a handloan, which were dishonoured for insufficient funds. Three complaints were filed. The appellant, as legal representative, sought to continue the proceedings. Held that the complaints should be restored and the Magistrate should proceed with the substitution and trial. (Paras 2-11)
Issue of Consideration
Whether the dismissal of complaints under Section 256 of the Code of Criminal Procedure, 1973 for non-prosecution was justified when the original complainant had died and his legal representative sought substitution.
Final Decision
The appeals are allowed. The impugned orders dismissing the complaints are set aside. The complaints are restored to the file of the learned Magistrate. The Magistrate is directed to consider the applications for substitution filed by the appellant and proceed with the trial in accordance with law.
Law Points
- Section 256 CrPC
- Section 138 Negotiable Instruments Act
- 1881
- substitution of legal representative
- dismissal for non-prosecution
- restoration of complaint
Case Details
2015 LawText (BOM) (03) 172
Criminal Appeal No.865 of 2011, Criminal Appeal No.866 of 2011, Criminal Appeal No.868 of 2011
Mr. Sandip Velkar with Ms. Reshma Kurle for the Appellant; Mr. H.H. Nagi with Ms. Chaula Solanki for Respondent No.1; Mr. Deepak Thakre, APP for the Respondent/State
Shri. Anand Shroff, The State of Maharashtra
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Nature of Litigation
Criminal appeals against dismissal of complaints under Section 138 of the Negotiable Instruments Act, 1881 for non-prosecution under Section 256 of the Code of Criminal Procedure, 1973.
Remedy Sought
The appellant sought restoration of the complaints and substitution as the legal representative of the deceased complainant.
Filing Reason
The original complainant died during the pendency of the complaints, and the Magistrate dismissed the complaints for non-prosecution without considering the appellant's application for substitution.
Previous Decisions
The Magistrate dismissed the three complaints for non-prosecution under Section 256 CrPC.
Issues
Whether the dismissal of complaints under Section 256 CrPC was justified when the original complainant had died and his legal representative sought substitution.
Submissions/Arguments
The appellant argued that the Magistrate erred in dismissing the complaints without considering her substitution application and that the death of the complainant was a valid reason for non-appearance.
The respondent argued that the dismissal was proper as the complainant was absent on the date of hearing.
Ratio Decidendi
The dismissal of a complaint under Section 256 CrPC for non-prosecution is not justified when the complainant has died and his legal representative has applied for substitution, as the death constitutes a valid reason for non-appearance and the court should consider the substitution application before dismissing the complaint.
Judgment Excerpts
The appellant's husband Shri Trilok Diwan had filed three complaints against the respondent no.1 herein, alleging commission of three separate offences punishable under section 138 of the Negotiable Instruments Act, by him.
Trilok Diwan died during the pendency of the said complaint cases. The present applicant, who is his widow, thereafter, filed applications for being brought on record as the legal representative of the deceased complainant.
The learned Magistrate, however, dismissed the complaints for non-prosecution under section 256 of the Code of Criminal Procedure.
The dismissal of the complaints for non-prosecution, in the facts and circumstances of the case, was improper and cannot be sustained.
Procedural History
The original complainant, Trilok Dewan, filed three complaints under Section 138 of the Negotiable Instruments Act, 1881 against the respondent. During the pendency of these complaints, Trilok Dewan died. His widow, Nirmal Dewan, filed applications to be substituted as the complainant. The Magistrate dismissed the complaints for non-prosecution under Section 256 CrPC. The appellant filed three criminal appeals against these dismissals.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 256
