SEBASTIAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE petitioner is the accused in C.C.197 of 1996. That is a complaint under S.138 of the Negotiable Instruments Act. The complainant expired during the pendency of the proceedings. Her legal heirs have not sought permission of the court to prosecute the complaint. The second respondent herein is the sister of the deceased. She filed an application before the learned Magistrate seeking permission to continue to prosecute the complaint. She claimed that she is a legatee and that under the will executed by the deceased she is an beneficiary. Her application for such impleadment was resisted by the petitioner - accused. Inter alia he took up a contention that the will is not genuine. He filed an application to send the will to the handwriting expert for examination. The learned Magistrate took up the petition for impleadment as well as the petition to forward the will to a handwriting expert together for consideration. The application for impleadment was allowed and the other application was dismissed. The petitioner challenges the impugned common order.

(2.) THE question whether the death of a complainant would ipso facto bring the criminal prosecution initiated by him to termination was considered in detail by this Court in Santhi Balagopal v. Benilde (1995 (2) KLT 488). A fairly exhaustive discussion of the law is available in the said decision. The court took note of the contradictory stand taken by different High Courts. Para.12 of the said judgment gives the manner in which the controversy was resolved.

(3.) SUB -s.2 of S.256 stipulates that even if the non appearance of the complainant is because of his/her death, the consequences enumerated under S.256(1) would follow. Though there is no specific provision in that regard available in the Code of Criminal Procedure, relying on precedents and principles the court held that adjourning the case consequent to the death of the complainant is therefore within the powers of the Magistrate. This Court further proceeded to observe that if in the meanwhile one of the legal representatives of the deceased complainant or a fit person comes forward and seeks permission to continue the proceedings, it is perfectly within the powers of the Magistrate to permit him to do so.