Position of Legal Heir(s) in case of Death of Complainant

(Under the Case Proceedings of Dishonour of Cheque)

If the complainant happens to die during the pendency of cheque bounce case proceedings[1] then the legal heir of a complainant can apply to the court to allow him/her to continue proceeding as the representative of deceased. The Court has discretion whether to allow such type of application.[2]

For the said purpose the legal heir will require documents such as Death Certificate, Successor Certificate, Ration Card, etc as a proof of being related to the deceased complainant. He/she will have to file an application for getting permission from the Court. After getting such permission from the Court he/she will be entitled to continue the proceedings of cheque bounce case as a representative of the deceased.

Some basic insight into the related legal provisions will help in better understanding of this-

  1. The Negotiable Instruments Act, 1881 is applicable for the cases of dishonour of cheque. According to which, dishonour of cheque is a criminal offence that is punishable with imprisonment up to two years or, with monetary penalty or, with both.
  2. Section 138 of the Negotiable Instrument Act, 1881 is to be tried summarily, according to the procedure for summons cases.[3]
  3. Under Section 256 of The Code of Criminal Procedure, 1973, which deals with the non-appearance or death of complainant during trial of summons cases, states that the Magistrate has power to acquit the accused or to adjourn the hearing of the case to some other day.
  4. Section 302 of The Code of Criminal Procedure, 1973 provides that the Magistrate can permit prosecution to be conducted by any person. (Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offense with respect to which the accused is being prosecuted. Also, police officer below the rank of Inspector is not allowed. Advocate-General/Government Advocate/Public Prosecutor/Assistant Public Prosecutor are not required to take such permission.)

Why the heir(s) of the deceased complainant need to be proactive?

Although the death or absence of the complainant does not ipso facto (by that very fact or act) bring termination of the criminal case. However, the Indian Legislature has given the power of discretion to Magistrates based upon which-

A Magistrate can decide whether on the non-appearance or death of the complainant:

  • Either dismiss the complaint and acquit the accused; or
  • To adjourn the hearing.[4]

Therefore, if the legal heir(s) fails to make a permission application, in timely manner, to represent the deceased complainant in the cheque bounce case before the Court then there is a chance that Court may dismiss the complaint and as a result of which the accused may get the acquittal. If it happens so then all the efforts of the deceased will go in vain.

Written by Advocate Monika Thakkar

[B.A.LL.B.(Hons.); LL.M. (Business Laws)]

References:

  1. Section 138 of Negotiable Instrument Act, 1881
  2. Section 302 of The Code Of Criminal Procedure, 1973
  3. Chapter XX of the Code of Criminal Procedure
  4. Naveen Rao v/s Ravikant Choudhary (Dead) Thr. (MCRC-2118-2018) held by Madhya Pradesh High Court on 5th March, 2018.

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