S REDDAPPA Vs. M VIJAYA

JUDGEMENT

(1.) The only question involved in this revision is whether in the trial of a summons case instituted on a private complaint, accused is entitled to an acquittal on the death of the complainant or whether a fit and proper person could be permitted to continue the complaint.

(2.) Few facts relevant for the disposal of this revision petition needs to be stated : Deceased Dr. S. V. Sunkappa on December 5, 1989 through an advocate made a written complaint under S. 200, Cr.P.C. in the Court of Metropolitan Magistrate (III Court), Bangalore against the respondent-accused alleging commission of an offence under S. 138 of the Negotiable Instruments Act. It is stated that cheque No. 604458 dated October 30, 1989 for Rs. 3,75,000/- issued to him by the accused drawn on Mandya District Co-operative Bank, Naguvanahally Branch when presented for encashment through Canara Bank, Srirampuram Branch, Bangalore was bounced with endorsement "Refer to Drawer". The accused failed to reply or make payment despite receiving a notice sent to him both by registered post and under certificate of posting as required under the Act. The learned Magistrate, on January 11, 1990 took cognizance of the offence, recorded the sworn statement of the complainant, registered a case in C.C. No. 2392/1990 for an offence under S. 138 of the Negotiable Instruments Act and process issued for the appearance of the accused. Summons issued on many occasions for his appearance returned unserved and after service remained absent. Therefore, non-bailable warrant was issued and in the mean time on 8-7-1991 accused appeared in Court, filed an application for re-calling the warrant and therefore warrant was re-called and the proceedings continued. On October 29, 1991 plea of the accused recorded. The accused pleaded not guilty and therefore posted for trial by January 21, 1992. In the mean time, on January 15, 1992 complainant died and therefore from January 21, 1992 it was adjourned time and again and finally for hearing on April 3, 1992. On April 3, 1992 revision petitioner S. Reddappa son of the deceased complainant filed an application under S. 302(1), Cr. P.C. praying the Court to substitute him in place of complainant and permit him to continue the proceedings. Accused opposed the application. The learned Magistrate therefore after hearing the parties by order dated February 9, 1993 dismissed the application and acquitted the accused. Hence this revision challenging the said order of acquittal.

(3.) Learned counsel for the revision petitioner contended that exercise of power under S. 256 of Cr. P.C. is improper, cognizance of a summons case which was taken on a private complaint does not abate on the death of the complainant. Sub-Sec. (2) of S. 256 of Cr. P.C. empowers the Magistrate in such circumstances, to consider the application and if the person is found fit and proper, to substitute him in place of complainant and permit him to continue the complaint. Learned counsel for the respondent contended that in view of the decision of this Court in Subbantia Hegde's case, (1980) 1 Kant LJ 384 : (1980 Cri LJ 1405), the Court had no option but to acquit the respondent-accused and as such, the order cannot be disturbed.