BARNABAS Vs. SIVAKAMI

JUDGEMENT

(1.) THE order passed by the learned Judicial Magistrate, Manapparai in Crl.M.P.No.3390 of 2004 dated 18.11.2004 is under challenge in this criminal revision case.

(2.) THE petitioner is the accused in a case under Sections 138 of the Negotiable Instruments Act. THE original respondent, since deceased, launched prosecution as against the petitioner herein alleging that the cheque issued by the petitioner for the subsisting liability was returned with the endorsement that there was no sufficient funds in the accounts of the petitioner and that the statutory notice issued to the petitioner did not evoke any positive response.

(3.) THE learned counsel for the petitioner would submit that the respondent, who has come on record in the place of the original complainant on his death, acts only as a pleader, who cannot give evidence on behalf of the deceased complainant. A person permitted under Section 302 of the Code of Criminal Procedure to conduct the prosecution cannot simultaneously act as a pleader and a witness. In fact the respondent has virtually deposed as a spokesperson of the deceased complainant. It is further contended that in the absence of any permission to depose in the case by the Court, the respondent cannot be permitted to ascend the witness box, as she has entered through the route provided under Section 302 of the Code of Criminal Procedure. Further in a summons case, on complaint, the accused shall be acquitted, if the complainant absented himself on any date of hearing, it is further contended.