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2006 DIGILAW 3524 (MAD)

Barnabas v. Sivakami

2006-12-18

M.JEYAPAUL

body2006
Judgment :- 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. As the original complainant died during the pendency of the proceedings under Section 138 of the Negotiable Instruments Act, the respondent, who is none other than the wife of the original complainant, filed an application to substitute her in the place of the original complainant, who is no more. It appears that the petitioner had absconded for quite a long time. Therefore, the learned Judicial Magistrate, Manapparai had to order paper publication of the notice in the aforesaid Crl.M.P.No.3390 of 2004 and permitted the respondent to act as a complainant in the place of the deceased Mummachi in C.C.No.199 of 2000. 4. The aforesaid order passed by the learned Judicial Magistrate, Manapparai in Crl.M.P.No.3390 of 2004 is challenged on two grounds. The first ground is that the respondent, who has been permitted to conduct the prosecution under Section 302 of the Code of Criminal Procedure, cannot legally enter into the box and give evidence in the place of the original complainant, who is dead. The second ground is that in a summons case a complaint cannot be continued in the absence of the complainant on account of his death as per Section 256 of the Code of Criminal Procedure. 5. 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. 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. 6. The learned counsel for the respondent would submit that the respondent, who has been permitted to prosecute the matter in the place of her deceased husband, has every right to depose before the Court from her own knowledge about the case. Further, the respondent, who was examined as P.W.1, has not spoken any hearsay version in the witness box. It is his further contention that no permission is required for the respondent to ascend the witness box in the aftermath of the substitution ordered by the Court on the death of her husband. 7. Section 302 of the Code of Criminal Procedure reads as follows: "Permission to conduct prosecution:-(1) Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of Inspector; but no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to do so without such permission: Provided that no police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence with respect to which the accused is being prosecuted. (2) Any person conducting the prosecution may do so personally or by a pleader." The Judicial Magistrate is empowered under the aforesaid provision of law to grant permission to any person to conduct the prosecution. Of course a police officer below the rank of Inspector has been debarred from conducting prosecution. Even a police officer, who has taken part in the investigation into the offence relating to the subject case, is also ostracised under the above provision of law. A person can prosecute the case personally or by a pleader. Of course a police officer below the rank of Inspector has been debarred from conducting prosecution. Even a police officer, who has taken part in the investigation into the offence relating to the subject case, is also ostracised under the above provision of law. A person can prosecute the case personally or by a pleader. The pleader need not be an advocate, who has enrolled in the bar counsel. The term pleader as per Section 2(q) of the Code of Criminal Procedure includes any other person appointed with the permission of the Court to act in such proceeding. 8. It is true that the respondent has entered into the arena of the prosecution only through the route provided under Section 302 of the Code of Criminal Procedure. There is no bar either under the Code of Criminal Procedure or under the Evidence Act for a pleader or an advocate to enter into the box to depose evidence in a case from his own knowledge. But the oral testimony which emanates from such a witness shall be direct. But such a person cannot enter into the soul of another man, who is dead and speak as the spokesperson of the dead person, when nothing has taken place in the presence of such a person. 9. Even a power of attorney holder can speak from his knowledge about an occurrence or about the facts and circumstances of the case which is in dispute. But of course the power of attorney holder is not supposed to speak hearsay version of his principal. That is to say, the matters which are privy to the principal cannot be spoken to by a power of attorney holder being his agent. Section 60 of the Evidence Act mandates that oral evidence must be direct and not otherwise. 10. It is true that the respondent has come on record in the place of the original complainant with the permission of the Court to conduct the prosecution. The role now assigned under the garb of Section 302 of the Code of Criminal Procedure cannot legally deter her from ascending the witness box to depose about the facts and circumstances of the case on hand from her own knowledge. 11. The role now assigned under the garb of Section 302 of the Code of Criminal Procedure cannot legally deter her from ascending the witness box to depose about the facts and circumstances of the case on hand from her own knowledge. 11. Section 256 of the Code of Criminal Procedure reads as follows: "Non-appearance or death of complainant:-(1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto, to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the nonappearance of the complainant is due to his death." The aforesaid provision under Section 256 of the Code of Criminal Procedure under the facts and circumstances of this case cannot be read in isolation. The said provision will have to be read in juxtaposition to Section 302 of the Code of Criminal Procedure. Of course the non appearance on account of the death of the complainant may end in acquittal of the accused. But a person, who is interested in continuing the prosecution, can very well invoke the provision under Section 302 of the Code of Criminal Procedure under the aforesaid contingency and enter into the arena of prosecution in the place of the dead person. Therefore, the Court finds that there is no substance in the submission made by the learned counsel for the petitioner that the trial Court should have simply acquitted the accused on the death of the complainant without resorting to the enabling provision under Section 302 of the Code of Criminal Procedure. 12. Therefore, the Court finds that there is no substance in the submission made by the learned counsel for the petitioner that the trial Court should have simply acquitted the accused on the death of the complainant without resorting to the enabling provision under Section 302 of the Code of Criminal Procedure. 12. The Honourable Supreme Court reported in Ashwin v. State of Maharashtra ( AIR 1967 SC 983 ) has held that a criminal complaint does not necessarily abate on the death of the complainant even in those cases where the making of the complaint by the person aggrieved is made a condition precedent by the Code. Substitution on the death of the complainant has been recognised in the background of Section 495 of the Old Code (Section 302 of the New Code) by the Supreme Court of India in the aforesaid authority. 13. The Honourable Supreme Court reported in Jimmy Jahangir Madan v. Bolly Cariyappa Hindley [ 2004(12) SCC 509 ] having thoroughly analysed the scope of Sections 302, 205 and 2(q) of the Code of Criminal Procedure has categorically held that the heirs of the deceased complainant are entitled to continue the prosecution. 14. Even in a case under Section 500 of the Indian Penal Code, the Honourable Supreme Court in Shri Balasaheb K.Thackeray & Anr. v. Shri Venkat @ Babru & Anr.[2006(3) Crimes 52(SC)] has authoritatively pronounced that the heir of the complainant is entitled to prosecute the complaint on the death of the complainant. 15. The substitution in the place of the deceased person does not take away the right of the person substituted to depose evidence from his own knowledge as regards the facts and circumstances of a case. In fact, in such circumstances, such a person substituted in the place of the deceased takes the duel rule of a pleader and complainant. 16. In view of the above, the Court finds that there is no substance in the criminal revision case filed by the petitioner questioning the propriety of the order passed by the learned Judicial Magistrate, Manapparai ordering substitution of the respondent in the place of the deceased complainant. Of course the respondent is not entitled to depose the matters which were in the personal knowledge of the deceased, but she is entitled to pour out from her heart the matters which are personally known to her. Of course the respondent is not entitled to depose the matters which were in the personal knowledge of the deceased, but she is entitled to pour out from her heart the matters which are personally known to her. Her evidence before the trial Court also does not indicate that she has spoken any hearsay version before the trial Court. Therefore, the Court finds that the criminal revision case is found not sustainable. 17. In the result, this Criminal Revision Case stands dismissed. Consequently, connected M.P.No.1 of 2006 is also dismissed.