RAJENDRA PRASAD SHROTI Vs. MANJUSHA JAIN

JUDGEMENT

(1.) THE applicant by this application has challenged the order dated 24.6.2005 passed by the JMFC, Jabalpur (Smt. Surekha Mishra) in Complaint Case No.27070/2006 by which the application of the applicant under Sections 245 and 256(2) of Cr.P.C. was dismissed. THE facts of the case are that the deceased complainant Dinesh Jain had filed a complaint against the applicant for commission of offence punishable under Section 138 read with Section 142 of Negotiable Instruments Act, 1881 (for short the "Act, 1881"). THE complaint was filed along with an affidavit of the complainant as required under Section 145 of the Act, 1881 and Section 200 of Cr.P.C. During the pendency of that complaint, on 31.1.2005 the complainant Dinesh Jain died. THEreafter an application was moved by the respondents that they were the LRs of the deceased and they wanted to continue with the complaint, and therefore their names were substituted as the complainant. THEreafter the complaint was registered and notice was issued to the applicant. THEreafter the applicant has submitted an application under Sections 245 and 256(2) of Cr.P.C. on 6.12.2007 with the request that the complainants were not substituted in a proper manner. Vide order dated 27.12.2007 the learned JMFC Jabalpur dismissed the application of the applicant on the ground that Court has no power to review to its own order.

(2.) AFTER considering the submissions of learned counsel for the applicant and looking to the documents submitted by the learned counsel for the applicant, I am of the view that clock may not be turned back if LRs were substituted prior to the registration of the complaint, then it would be clear from that order that complaint was never dismissed by the concerned Magistrate in absence of the complainant. A discretion is given under Section 256 of Cr.P.C. that in case of non- appearance of the complainant, if Magistrate thinks fit, he may dismiss the complaint, but it is Magistrate's discretion. There is no provision in Cr.P.C. that such application be signed by each of the LRs or it should be filed along with support of an affidavit. There is no time limit provided in filing of such application. If complainant dies and complaint is not dismissed under Section 256 of Cr.P.C., then on filing of the application, if LRs are substituted, then provisions of Section 256 of Cr.P.C. cannot be applied in retrospective manner, when accused came in picture. It is very much clear that LRs are taken on record and complaint was not dismissed by the Magistrate, therefore the applicant has no right to raise such objection after a longer period when he appeared before the Court.

(3.) ON the basis of above discussion, it would be clear that there is no basis to accept the present application filed under Section 482 of Cr.P.C. Consequently, it is hereby dismissed. The stay order dated 29.1.2008 is hereby vacated.