SANJAY MALHOTRA Vs. TIMELY BOOKS CENTRE

JUDGEMENT

(1.) The hearing arises from an application filed by the applicants Mr. Mayur J.Tanna and two other brothers praying for impleading them; they being sons and legal heirs of their father Jayant D. Tanna, who was representing the firm and died on 26.10.2003, as O.Ps, in C.R.R. 1818/2003 so as to enable them to contest the application for quashing.

(2.) The circumstances leading to the above application are that the petitioner Sanjiv Malhotra filed an application being registered as CRR 1818/2003 for quashing the proceeding being Case No. C-3623/03 under Sections 467/468/469/471/120B I.P.C. initiated by the O.P. M/s. Timely Book Centre represented by its proprietor Jayant D. Tanna, pending in the Court of Learned Metropolitan Magistrate, 10th Court, Calcutta. The said Jayant D. Tanna died on 26.10.2003, for which the present applicants filed the said petition for substitution.

(3.) Mr. Dutt, learned Counsel for the applicants, on referring the cases of Ashwin Nanubhai Vyas v. State of Maharashtra, reported in AIR 1967 SC 988, Mayabati Haider v. Rent Controller, Calcutta, reported in AIR 1981. Cal 118, Jagannath Ghosh v. Pasupati Nath Ghosh, reported in 1993 C Cr LR (Cal) 131, Balbir Kaur v. Dalip Singh, reported in 1987 Cr LJ 1555 (P&H) and Ram Kishan v. Prem Lata, reported in 1997 Cr LJ 3365 (P&H) submitted that on the death of a complainant the criminal proceeding does not abate nor the complaint can be dismissed, and suitable person/persons may be permitted to conduct the proceeding. Mr. Dutt on drawing Court's attention to paragraph 22 of the plaint in Commercial Suit No. 108/2005 further submitted that as the present O.P./plaintiff admitted the present applicants as heirs and legal representatives of Jayant D. Tanna,. the applicants may be substituted in place of the deceased. Mr. Mukherjee, learned Counsel for the O.P./petitioner strongly resisted the above prayer contending that in the said paragraph 22 apart from the present three applicants, Mrs. H. Tanna, widow of Jayant D. Tanna was also admitted as legal heir and representative of Jayant D. Tanna, and when the said widow has not joined with the present three applicants, the petition is not maintainable. Mr. Mukherjee further contended that the complaint was filed by the firm being represented by the proprietor Jayant D: Tanna and when on the death of proprietor, proprietorship firm no longer exists, no substitution is permissible.