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2015 DIGILAW 162 (MP)

Rajmal Agarwal v. Dinesh Sahu

2015-02-05

S.K.PALO

body2015
ORDER 1. Heard on I.A. No.786/2015, an application for substituting the LRs of appellant. 2. Briefly stated the facts are that the complainant’s case was filed by Rajmal Agarwal against the respondent before the learned JMFC, Vidisha in the Criminal Case No.1000/2006 decided on 26.7.2010. The learned trial Court acquitted the respondent under section 138 of the Negotiable Instruments Act. Therefore, this appeal was filed by the appellant Rajmal Agarwal. During the pendency of this appeal, the complainant/appellant Rajmal Agarwal died on 27.12.2014 at Vidisha. Applicant Ashok Kumar Agarwal has filed the present application along with the death certificate of Rajmal Agarwal and a ‘Will’ stating that he is the legal representative of the deceased/appellant Rajmal Agarwal. Therefore, his name be substituted in place of the appellant. 3. The respondent opposed the same on the ground that the applicant Ashok Kumar Agarwal is not the legal heir of the appellant and one daughter of Rajmal Agarwal is alive. 4. It is submitted by the counsel for the applicant the Rajmal Agarwal has a daughter but after her marriage, she is living in her in-laws house. The “Will” dated 31.3.1997 duly registered has been executed by the deceased Rajmal Agarwal in presence of two witnesses, hence, the applicant is the legal representative of the deceased/appellant Rajmal Agarwal. 5. Heard the rival contentions of the parties. 6. The document death certificate and the registered “Will”, prima facie show that the applicant Ashok Kumar Agarwal is the legal representative of the deceased appellant Rajmal Agarwal. 7. In Helen C. Pinheiro v. M/s. Kamaxi Steel Products reported in 2000 CrLJ 1622 , it is held that “the Magistrate is competent to proceed with the complaint even where complainant died during pendency of complaint”. 8. In Assem Shabanli Merchant v. Brij Mehra reported in (2005)11 SCC 412 , it is held that “in prosecution for offence under section 138 of the Negotiable Instruments Act, on the death of the complainant, the Court would allow his son to conduct the prosecution and appoint a counsel of his choice”. 9. Similarly in Anil G. Shah v. I.J. Chittaranjan Co. reported in 1998 CrLJ 3770 (Guj.), it is held that “in prosecution under section 138 of the Negotiable Instruments Act, on the death of the complaint, proceedings do not abate, dismissal of the complaint is not proper”. 10. It is true that the appellant is dead. 9. Similarly in Anil G. Shah v. I.J. Chittaranjan Co. reported in 1998 CrLJ 3770 (Guj.), it is held that “in prosecution under section 138 of the Negotiable Instruments Act, on the death of the complaint, proceedings do not abate, dismissal of the complaint is not proper”. 10. It is true that the appellant is dead. It is also true that prima facie a registered ‘Will’ is executed in favour of the applicant Ashok Kumar Agarwal. Therefore, it is sufficient in a criminal case to infer that the applicant is a legal representative of the appellant. 11. The maxim actio personalis moritur cum persona has no application to criminal prosecution. The death of the complainant cannot ipso facto bring the termination of the proceedings. 12. That being so, this Court has no hesitation to allow the present application and to substitute name of the applicant Ashok Kumar Agarwal, as the appellant, for further prosecuting the criminal appeal. Accordingly, I.A.No.786/2015 is allowed. Amendment be incorporated accordingly. 13. Case be listed for final hearing in due course. Sanjay Mishra for appellant; Pawan Singh Raghuvanshi for respondent.