Ram Avtar Agarwal vs State Of U.P. And Another
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Allahabad High Court

Ram Avtar Agarwal vs State Of U.P. And Another on 22 January, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?A.F.R. 
 
Neutral Citation No. - 2025:AHC:10446
 
Court No. - 77
 

 
Case :- APPLICATION U/S 482 No. - 21759 of 2024
 

 
Applicant :- Ram Avtar Agarwal
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rahul Chaudhary
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Arun Kumar Singh Deshwal,J.
 

1. Heard Sri Rahul Chaudhary, learned counsel for the applicant and Sri Uday Bhan, learned AGA for the State.

2. The present 482 Cr.P.C. application has been filed to quash the order dated 11.09.2018 passed by learned Presiding Officer, Additional Court No.3, Agra as well as entire proceedings of Complaint Case No.874 of 2018 (Vinod Kumar Agarwal Vs. Ram Avtar Agarwal and another), under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station-Chhata, District-Agra, pending in the court of Additional Court No.3, Agra.

3. The facts giving rise to the present case is that father of opposite party no.2, Vinod Kumar Agarwal had filed a complaint against the applicant u/s 138 of the Act, 1881 with the allegation that to return the payment of booking amount of a flat constructed by the applicant, a cheque of Rs.3 lakhs dated 10.05.2018 issued in favour of Vinod Kumar Agarwal, who was the father of opposite party no.2, was given by the applicant on behalf of the Company-Anupam Omarion Infrastructure India Private Limited and on presenting the same before the bank on 10.05.2018, same was returned by the bank on 11.05.2018 with the endorsement 'account closed'. Thereafter, demand notice was sent to the applicant through registered post on 17.05.2018 but despite receiving the said demand notice on 26.05.2018, cheque amount was not paid by the applicant. Therefore, the impugned complaint was filed. Sri Vinod Kumar Agarwal has also filed his statement u/s 200 Cr.P.C. through affidavit. Thereafter, the court below has summoned the applicant as Director of Omarion Infrastructure India Private Limited vide order dated 11.09.2018. Thereafter, during the pendency of trial, the complainant, Sri Vinod Kumar Agarwal had died on 06.11.2021. After the death of complainant, Sri Vinod Kumar Agarwal, opposite party no.2 being his son moved an application dated 22.08.2023 permitting him to continue the impugned proceeding being legal heir of complainant, Vinod Kumar Agarwal, which was allowed by the court below vide order dated 08.11.2023 and same is under challenge in the present case.

4. Sri Rahul Chaudhary, learned counsel for the applicant, raised following contentions to challenge the impugned proceeding :

(i) The first contention of learned counsel for the applicant is that, admittedly, the cheque in question was issued on behalf of the Company-Anupam Omarion Infrastructure India Private Limited and the court summoned the Director of the Company instead of summoning the company, itself.

(ii) The second contention of learned counsel for the applicant is that after the issuance of the summoning order, the complainant died on 06.11.2021, thereafter, his son moved an application on 22.08.2023, which was erroneously allowed by the court below on 08.11.2023, permitting him to pursue the complaint on behalf of the complainant, which is absolutely illegal as the son of the complainant has no personal knowledge, so he cannot be allowed to pursue the impugned proceeding as well as to depose therein. In support of his contention, learned counsel for the applicant has relied upon the judgement of the Apex Court in the case of A.C. Narayanan Vs. State of Maharashtra & Another in Criminal Appeal No.73 of 2007 reported in (2014) 11 SCC 790.

(iii) The third contention of learned counsel for the applicant is that cheque in question was lost on 08.02.2016 regarding which a police complaint was also given on the same date. Thereafter, news item was also published in newspaper on 10.02.2016 and again on 14.11.2016. Therefore, cheque in question was not issued in discharge of any liability and same was a missing cheque.

(iv) The fourth contention of learned counsel for the applicant is that the notice was sent to the applicant at the incorrect address.

5. Per contra, learned AGA has submitted that it is an established law that once the cheque is returned on the ground of the account closed then the court below was well within the jurisdiction to issue summons and the accused can raise all defences during trial to justify the closing account.

6. After hearing learned counsel for the applicant as well as learned AGA, it is clear from the complaint that the complainant had invested Rs.18 lakhs in the project of the applicant who is the builder, but the project could not be completed, then the post dated cheque of Rs.3 lakhs dated 10.05.2018 was issued by the applicant to the complainant. It is not in dispute that the cheque in question was signed by the present applicant on behalf of the company in question. When the cheque was presented before the bank, the same was returned with the endorsement 'account closed' on 11.05.2018 and despite service of notice on 26.05.2018, cheque amount was not paid by the applicant so the impugned complaint was filed.

7. So far as the contention of learned counsel for the applicant that summoning order is itself bad as the company was not summoned, but the applicant was summoned in a personal capacity is incorrect because in the summoning order, it is specifically mentioned that the applicant is being summoned as the Director of the Company in question, and he was also the signatory of the cheque in question. This court, in the case of Shashibala Agrawal Vs. State of U.P. and Another reported in 2024 SCC OnLine All 1216, which was also relied upon by the coordinate Bench of this court in Kishore Shankar Signapurkar Vs State of U.P. and Another reported in 2024 SCC OnLine All 5279, who has observed that if the summon is sent to the signatory Director of the Company by clearly mentioning his status as Director of a particular company, then it will be sufficient service upon the company. Therefore, the contention that the notice was not served upon the company is misconceived and hence deserves to be rejected.

8. So far as the second contention that the son cannot be permitted to pursue the complaint after the death of the complainant is concerned, from perusal of the record, it is clear that initially complaint was filed by the complainant, Vinod Kumar Agarwal. He himself deposed before the court as a witness and thereafter, the applicant was summoned, and during the pendency of the trial, the complainant had died. Therefore, his son, who is opposite party no.2, herein filed an application to pursue the complaint.

9. Though, it is correct that there is no provision under Cr.P.C. or the Act, 1881 to implead or substitute the legal heirs of the complainant after his death, the question arises whether, after the death of the complainant, his legal heirs can pursue the complaint. Section 256 Cr.P.C. & Section 279 of B.N.S.S. deal with the question of the death of complainant. For reference, Section 256 Cr.P.C. as well as Section 279 of BNSS are being quoted as under:

"256 Cr.P.C. 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 non-appearance of the complainant is due to his death.

?Section 279 BNSS. 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, after giving thirty days? time to the complainant to be present, 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 an advocate 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 non-appearance of the complainant is due to his death.?

10. From the Section 256 Cr.P.C. (corresponding Section 279 of BNSS), it is clear that if the complainant could not appear before the court due to his death or any other reason, then the Magistrate may dismiss the same and acquit the accused. But it is also vests the discretion of the Magistrate to adjourn the case for hearing to some other dates for appropriate reason instead of dismissing the complaint. Though, there is no time fixed in this section allowing the complainant to be present before the court but Section 279 of BNSS provides giving of 30 days time to the complainant to be present, before dismissing the same for want of prosecution. Complainant may not appear before the court concerned for various reasons which also includes his death, therefore for this purpose, Section-279 of BNSS has provided 30 days time so that the pleader or any legal heir of the complainant could apprise the court of the reason for non-appearance. Though, Section 205 Cr.P.C. (corresponding Section 228 of BNSS) also gives discretion to Magistrate at any stage of proceeding to exempt the personal attendance of the accused in appropriate cases but this provision will not apply where the complainant has died. But as soon as the legal heir of the complainant is permitted to continue the proceeding after the death of the complainant then the Magistrate can grant exemption from personal appearance to the legal heirs so that the proceeding can be continued by the legal heir through a pleader or power of attorney holder. But in case after the death of the complainant, permission is not granted to his legal heir to continue the proceeding then, power of attorney of the deceased complainant or his counsel cannot be permitted to continue the proceeding u/s 205 Cr.P.C. (corresponding Section 228 of BNSS), as after the death of the complainant, his arrangement with his counsel or the power of attorney holder also ends.

11. Section 302 Cr.P.C. (corresponding Section 339 of BNSS) also gives discretion to Magistrate to permit any person to continue the prosecution in place of complaint. Therefore, after the death of the complainant, the Magistrate can permit his legal heir to pursue the complaint u/s 302 Cr.P.C. (corresponding Section 339 of BNSS) instead of dismissing the same u/s 256 Cr.P.C. (corresponding Section 279 of BNSS). In case, the legal heir of the deceased complainant is permitted to continue the proceeding u/s 302 Cr.P.C. (corresponding to Section 339 of BNSS) then further discretion is also granted to Magistrate that he can permit the legal heir of the deceased complainant to pursue the proceeding of complaint either personally or by a pleader or through his power of attorney holder. For reference, Section 302 Cr.P.C. (corresponding Section 339 of BNSS) is being quoted as under:

?Section 302 Cr.P.C.. 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.?

12. The Apex Court in Ashwin Nanubhai Vyas Vs. State of Maharashtra reported in 1966 SCC OnLine SC 253 observed that Cr.P.C. provides only about the effect of death of any accused or appellant but does not provide expressly for the death of the complainant and further observed that the Magistrate can permit to continue the prosecution to any person u/s 495 Cr.P.C. applicable in that time (corresponding to Section-302 Cr.P.C., 1973). Paragraph nos.3 and 9 of the Ashwin Nanubhai Vyas (supra) is being quoted as under:

"3. The Code of Criminal Procedure provides only for the death of an accused or an appellant but does not expressly provide for the death of a complainant. The Code also does not provide for the abatement of inquiries and trials although it provides for the abatement of appeals on the death of the accused, in respect of appeals under Sections 411-A(2) and 417 and on the death of an appellant in all appeals except an appeal from a sentence of fine. Therefore, what happens on the death of a complainant in a case started on a complaint has to be inferred generally from the provisions of the Code.

9. In support of his contention Mr Keswani has cited some cases of the High Courts in which on the death of the complainant the prosecution was held to have abated. Chief among them are Ishwardas v. Emperor [7 CrLJ 290] , Ramanand v. Crown [40 IC 1008] and Labhu v. Crown [52 IC 797] . The first of these cases was a prosecution for defamation and the second a trial for an offence under Section 323 of the Indian Penal Code. The third followed the second. The first two cases here mentioned were overruled by the Lahore High Court in Hazara Singh v. Crown [ILR 2 Lah 27] wherein it was laid down that such cases do not necessarily abate. Mr Keswani also relied upon several cases which arose under Section 417(3) and 476-B of the Code of Criminal Procedure in which appeals were held to have abated. We need not refer to these cases because they arose under different circumstances and were certainly not inquiries with a view to committal under Chapter XVIII of the Code. Mr Hathi, who appeared on behalf of the State of Maharashtra, drew our attention to many later cases in which it has been held (dissenting from the cases relied upon by Mr Keswani) 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. We need not analyse those cases because, in our opinion, unless the Code itself says what is to happen, the power of the court to substitute another prosecution agency (subject to such restrictions as may be found) under Section 495 of the Code of Criminal Procedure is always available. Reference may, however, be made to the following : Emperor v. Nurmohammed [8 CrLJ 190] , Emperor v. Mauj Din [AIR 1924 Lah 72 : 4 Lah 7] , U Tin Maung v. King [AIR 1941 Rang 202] , Mohammed Azam v. Emperor [AIR 1926 Bom 178] and In re Ramasamier [AIR 16 Cr LJ 713] . None of the cases cited either for the one side or the other directly arose under Section 198 first part in a committal proceeding. The later view is distinctly in favour of allowing the prosecution to continue except in those cases where the Code itself says that on the absence of the complainant the accused must be either acquitted or discharged. The present is not one of those cases and in our judgment the Presidency Magistrate was right in proceeding with the inquiry by allowing the mother to carry on the prosecution, and under Section 495 the mother may continue the prosecution herself or through a pleader. We see no reason why we should be astute to find a lacuna in the procedural law by which the trial of such important cases would be stultified by the death of a complainant when all that the Section 198 requires is the removal of the bar. The appeal fails and it will be dismissed."

13. The Apex Court in the case of Jimmy Jahangir Madan Vs. Bolly Cariyappa Hindley (dead) by lrs. reported in 2004 (12) SCC 509, again considered the issue of continuing the prosecution after the death of complainant and observed that u/s 302 Cr.P.C., Magistrate can permit any person including the legal heirs of deceased complainant to continue the prosecution either himself or through pleader or power of attorney. Paragraph nos.9 and 10 of Jimmy Jahangir Madan (supra) is being quoted as under:

"9. The language of Sections 205 and 302 of the Code is similar. Under Section 302 of the Code, a party can make an application himself to continue the prosecution or the same can be made by a pleader. As provided under Section 2(q) of the Code, the prayer to continue the prosecution can be made either by a legally qualified person, who is authorised to practise in the court under the Advocates Act; or by any other person which would obviously include a power-of-attorney holder in which eventuality such permission can be granted by the court where the prosecution is pending only if it is sought by the person who is entitled to continue the prosecution and not by the power-of-attorney holder. Under Section 205 of the Code, an accused is required to appear in person but his personal appearance can be dispensed with and he can be allowed to be represented by a pleader. Likewise, under Section 302 of the Code, a person, who is entitled to continue the prosecution, is required to make an application himself but under both the provisions aforesaid, instead of taking steps personally, a party can be represented through a pleader. Power-of-attorney holder can represent the party concerned under both the provisions of the Code, in case permission for such representation is sought from the court by the person concerned and granted by it. But where no such permission is sought by the person concerned, meaning thereby, in the case of Section 205 of the Code ? an accused and in the case of Section 302 of the Code ? a party who has right to continue the prosecution, power-of-attorney holder cannot be allowed to represent the person concerned in the proceeding.

10. In the present case, neither heirs of the complainant filed petition under Section 302 of the Code to continue the prosecution nor was any permission sought by them from the competent court that they should be allowed to continue the prosecution through their power-of-attorney holders, rather the prayer was made by the power-of-attorney holders, which is not permissible under law. This being the position, we are of the view that the trial court was not justified in allowing the petitions under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and the petitions under Section 302 of the Code are fit to be dismissed giving liberty to the heirs either to make application themselves before the court concerned to continue the prosecution or apply to the court to grant permission to them to authorise the power-of-attorney holders to continue the prosecution on their behalf."

14. The above issue also came into consideration before the High Court of Gauhati in the case of Kushal Kumar Talukdar Vs. Chandra Pd. Goenka reported in 2004 SCC OnLine Gauhati 130 wherein the Gauhati High Court observed that though there is no provision of substitution of a deceased complainant under Cr.P.C. but Magistrate u/s 302 Cr.P.C. can permit any person including the legal heir of deceased complainant. Paragraph nos.53 and 54 of Kushal Kumar Talukdar (supra) are being quoted as under:

"53. While dealing with the present, case, it is necessary to bear in mind that there is no provision for substitution of a deceased complainant under the Cr. P.C., but a Magistrate has the power under Section 302 Cr. P.C. to permit any one to conduct prosecution. Hence, when the opposite party herein, as a son of the deceased complainant, came forward to continue to proceed with the complaint, there was no impediment, on the part of the Court, in allowing the son of the deceased complainant to represent the complainant. Though the Magistrate has substituted the accused-opposite party herein in place of the deceased complainant, the impugned order has the effect of allowing the opposite party therein to represent, the deceased complainant in terms of Section 302 Cr. P.C. [See also Ashwin Nanu Bhai (supra)].

54. What crystallises from the above discussion is that in the case at hand, for proving the ingredients of the offence allegedly committed by the accused-petitioner, presence of the complainant was not necessary. In such a situation, when the son of the complainant, i.e., the opposite party herein came forward to conduct the prosecution, there was no impediment under the law, in the light of the provisions of Section 256 Cr. P.C. read with Section 302 Cr. P.C. to permit the opposite party herein, as son of the deceased complainant, to represent the complainant and to allow him to appoint a pleader of his choice to represent him in the case. There was, thus, no legal impediment, on the part of the learned Court below, to allow the proceedings of the complaint case aforementioned to continue. For the conclusions so reached, I find no merit in the present revision and the revision cannot succeed."

15. The issue of permitting the prosecution by the son of the deceased complainant also came into consideration before the High Court of Hyderabad in the case of M/s Sri. Sai Mourya Estates & Projects Pvt Ltd. & Others Vs. State of A.P. rep by its Public Prosecutor, High Court of A.P., Hyderabad & Another reported in 2018 SCC OnLine HYD 43 in which the Hyderabad high court observed that after the death of the complainant (payee of cheque), his son is deemed to be holder in due course of the cheque which is subject matter of complaint under the Act, 1881. Therefore, after the death of the father, his son can file complaint u/s 138 of the Act, 1881. Paragraph no.31 of M/s Sri. Sai Mourya Estates (supra) is being quoted as under:

"31. From the above provision, it is clear that the 2nd respondent holds the cheque after the death of his father being the payee and as a legal heir he is entitled to possess the same in his own name and in view of Section 53 he is the holder in due course and can get a full discharge. Thus, under Section 53 of the Act, a legal representative/heir of the payee or holder in due course can maintain a complaint under Section 138 of the Act."

16. From the conjoint reading of Section 256 Cr.P.C. (corresponding Section 279 of BNSS) and Section 302 Cr.P.C. (corresponding Section 339 of BNSS) as well as legal position discussed above, it is clear that after the death of the complainant, his legal heir may be permitted to continue the proceeding u/s 138 of the Act, 1881 personally or through pleader or through the power of attorney holder, though, there is no requirement of substitution or impleading the legal heir of the deceased complainant. Therefore, it is not always necessary for the concerned court to dismiss the complaint u/s 256 Cr.P.C. If the complainant failed to appear for any reason, it may postpone the hearing and if the application is filed by the legal heir of the complainant to pursue the complaint proceeding on the ground that the complainant has died, court should normally permit the legal heir of the complainant to pursue the same.

17. Therefore the contention of learned counsel for the applicant that court below has erroneously permitted the son of the complainant after his death to pursue the complaint proceeding is also misconceived.

18. Third contention of learned counsel for the applicant that cheque in question was a missing cheque regarding which applicant has also filed police complaint is also misconceived and there is nothing on record showing that any application was given to bank for stopping the payment of the cheque in question if same had been lost. Even otherwise, this ground being defence would be available to the applicant during trial.

19. So far as the fourth contention that the demand notice was sent at the incorrect address is concerned that can also be raised by the applicant during trial being his defence as the Apex Court in the case of D. Vinod Shivappa Vs. Nanda Belliappa reported in (2006) 6 SCC 456 has observed that issue of service of notice is essentially a question of fact and can be examined during trial.

20. It is also apposite to mention that the cheque in question was returned with the endorsement 'account closed'. The Apex Court in the case of Lafarge Aggregates And Concrete India Private Ltd. Vs. Sukarsh Azad And Another reported in 2014 (13) SCC 779 as well as in the case of Vijay Kumar Vs. State of U.P. & Another in Application u/s 482 No.17464 of 2024 vide order dated 23.05.2024, has observed that even if the cheque is returned with the endorsement 'account closed', even then the proceeding cannot be quashed, because the defence of closing the account for valid reason can be raised during trial.

21. It also appears from perusal of the record that the impugned proceeding has been pending since 2018 and that applicant has not appeared before the court below to contest the trial and raise all grounds available to him.

22. In view of the above, this court does not find any illegality in the impugned order.

23. Accordingly, present application is rejected.

Order Date :- 22.1.2025

S.Chaurasia