Bombay High Court
Leena Mukesh Purav And Anr vs Sanjay D Satam And Anr on 23 January, 2024
Author: Prakash D. Naik
Bench: Prakash D. Naik
2024:BHC-AS:6021
final-26-WP(ST)-1039-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 1039 OF 2024
Leena Mukesh Purav & Anr. ...Petitioners
Versus
Sanjay D. Satam and Anr. ...Respondents
....
Mr. Kartik Garg a/w Mr. Piyush Shah, Mr. Sahil Wagh, Aashka Shell
i/by Mr. Abhishek Patil, Advocate for the Petitioner.
Ms. Akanksha Kadam i/by Ms. Kranti S S Anand, Advocate for
Respondent No.1.
Mr. Y. Y. Dabake, APP for the Respondent No.2 - State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 23rd JANUARY, 2024.
P.C.:
1. The Petitioners are challenging the order dated 09.01.2024
passed by the Sessions Court below Exhibit-10 in Criminal Appeal
No.225 of 2017.
2. The Petitioners are legal heirs of Original Complainant
Mukesh Shankar Purav (Respondent No.2) in Criminal Appeal
No.225 of 2017 pending before the Sessions Court Greater
Mumbai. The original complainant had preferred Criminal
Complaint bearing C.C. No.634/SS/2013 before the Court of
Sajakali Jamadar 1 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
learned Metropolitan Magistrate, 7th Court Bhoiwada, Dadar,
Mumbai under Section 138 of the Negotiable Instruments Act. (for
short "N.I. Act")
3. Vide Judgment and order dated 15.02.2017, the
accused/Respondent No.1 was convicted for offence under Section
138 of the N.I. Act and sentenced to suffer imprisonment till rising
of the Court. He was also sentenced to pay fine of Rs.29,20,000/-
within two months and in default to undergo rigorous
imprisonment for five months. It was further directed that out of
the fine amount, Rs.29,00,000/- be paid to the complainant
towards compensation as per Section 357(1) of the Code of
Criminal Procedure (Cr.P.C.).
4. The respondent No.1/accused filed appeal before the
Sessions Court bearing Criminal Appeal No.225/2017.
5. The original complainant Mukesh Shankar Purav expired on
10.11.2019 leaving behind the Petitioners as his legal heirs.
6. The Petitioners moved Misc. Application below Exhibit-10 in
Criminal Appeal No.225 of 2017 before the Sessions Court for
bringing the legal heirs on record on behalf of the original
complainant. The Respondent No.1 filed reply on 07.12.2023
opposing the relief sought in the Misc. Application.
Sajakali Jamadar 2 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
7. The learned Sessions Judge vide order dated 9 th January
2024 directed that the applicants/petitioners are permitted to
conduct and continue with the prosecution as per Section 302 of
the Cr.P.C. Entry regarding death of Mukesh Shankar Purav be
taken in the appeal Memo. It was observed that in view of the
judicial pronouncement referred in the said order, the legal
representative of the deceased/ complainant can be permitted to
continue with the prosecution. The Court has already admitted the
appeal against the judgment of conviction preferred by the accused
and bound to dispose of the appeal on merits in accordance with
law. The criminal appeal is a continuation of the proceedings
started in the trial Court. Thus, by invoking Section 302 of Cr.P.C.,
the Court is empowered to allow the legal heirs of
deceased/complainant to continue with the prosecution. In order
to get assistance for proper determination of the case on merits, the
appellate Court can permit anyone, who it deems feet to place
before it all the relevant facts and the evidence in this case, so that
no aspect of the matter escapes from the Court's notice.
Considering the scope and ambit of Section 302 of Cr.P.C. and the
law laid by the Hon'ble Supreme Court in the case of Chand Devi
Daga Vs. Manju K. Humatani & Ors. 1 the Court can permit the
1 2018 (1) SCC 71,
Sajakali Jamadar 3 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
applicants to conduct and continue with the prosecution. However,
there is no provision in Cr.P.C. which enables the Court to bring on
record the legal representatives/heirs of the deceased on record.
However, Section 302 of Cr.P.C. empowers the Court to permit the
legal representatives/heirs to conduct and continue with the
prosecution.
8. Thus, the tenor of the order dated 9th January 2024 indicate
that the appellate Court had permitted the legal
representatives/heirs to conduct and continue with the prosecution
but held that there is no provision in Cr.P.C. to bring on record the
legal representatives.
9. Learned Advocate for the Petitioners submitted that the order
dated 9th January 2024 is bad in law. The offence under Section
138 of the N.I. Act is almost in the nature of civil wrong. Although
the learned Sessions Judge has referred the decision of the Hon'ble
Supreme Court in the case of Chand Devi Daga Vs. Manju K.
Humatani & Ors. (supra) and observed that there is no provision in
Cr.P.C. to bring on record the legal representatives/heirs of the
deceased/complainant on record. The learned Sessions Judge has
misread the observations of the Apex Court in the said decision.
The learned Sessions Judge failed to appreciate that the complaint
Sajakali Jamadar 4 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
under Section 138 of the N.I. Act cannot be equated with an
offence under the provisions of Indian Penal Code or other
offences. In the event the appeal is dismissed, the compensation
amount awarded by the trial Court shall be received by the legal
heirs of the complainant.
10. The learned Advocate for Respondent No.1 submitted that
there has been delay in preferring the application for bringing the
legal heirs on record. There is no provision in Cr.P.C. to bring the
legal heirs of the complainant on record. The Petitioners are
permitted by the Sessions Court to conduct and continue with the
prosecution. The appeal is pending in the Sessions Court since
2017. In the light of Section 468 of Cr.P.C. the delay cannot be
condoned. The complainant has expired in 2019. The application
was filed after four and half years.
11. Learned Advocate for the Respondent No.1 has relied upon
the decision in the case of Kushal Kumar Talukdar Vs. Chandra
Prasad Goenka2.
12. It is pertinent to note that the complainant had expired
during the pendency of appeal before the Sessions Court on
10.11.2019. The Petitioners preferred an application before the
Sessions Court to bring legal heirs of complainant on record. The
2 2005 Cr.L.J. 599
Sajakali Jamadar 5 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
application provides the reasons for preferring such application in
December-2023. The learned Sessions Judge has referred to the
decision of the Apex Court in the case of Chand Devi Daga Vs.
Manju K. Humatani & Ors. (supra) and observed that the Appellate
Court can permit the applicant to conduct and continue with the
prosecution. There is no provision in Cr.P.C. which enables the
Court to bring on record the legal representatives/heirs of the
deceased/complainant on record. The learned Sessions Judge has
referred to Section 302 of Cr.P.C. and opined that the said provision
empowered the Court to permit the legal representatives/heirs to
conduct and continue with the prosecution. Thus, the appellate
Court has permitted the Petitioners to continue with the
prosecution but refused to bring them on record. The appeal is due
for hearing before the Sessions Court.
13. The decision of the Hon'ble Supreme Court in the case of
Chand Devi Daga Vs. Manju K. Humatani & Ors. (supra) is
apparently misread by the learned Sessions Judge. In the said
decision the order passed by the High Court whereby the legal heirs
were permitted to be taken on record for prosecuting the complaint
was under challenge before the Apex Court. It was held that the
High Court did not commit any error in allowing the legal heirs of
Sajakali Jamadar 6 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
the complainant to prosecute the Criminal Misc. Petition before the
High Court.
14. In the case of Jimmy Jahangir Madan Vs. Bolly cariyappa
Hindley3 the Apex Court referred to the decision in the case of
Ashwin Nanubhai Vyas Vs. State of Maharashtra4 wherein it was
held that the heirs of complainant can continue the prosecution.
15. The High Court of Delhi in Netar Prakash Vs. Satinder Pal
Dutta Since deceased Mrs. Madhu Gupta and Ors. delivered in CrL.
M.C. No.3455/2022 has relied upon the decision of the Hon'ble
Supreme Court in the case of Chand Devi Daga Vs. Manju K.
Humatani & Ors. (supra) as well as Ashwin Nanubhai Vyas Vs.
State of Maharashtra (supra) and observed that the offence under
Section 138 of the N.I. Act is almost in the nature of civil wrong
which has been given a criminal overtone. In view of the nature of
offence under Section 138 of the N.I. Act coupled with reading of
Section 256, Section 249, and Section 302 of Cr.P.C., 1973, it
cannot be inferred that the intention of legislature was to bar the
legal heirs of the complainant to be brought on record during the
appellate proceedings and deprived the legal heirs of compensation
awarded on completion of proceedings under Section 138 of the
3 (2004) 12 SCC 509
4 AIR 1967 SC 983
Sajakali Jamadar 7 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
N.I. Act.
16. In the decision relied upon by the learned Advocate for the
Respondent No.1 in the case of Kushal Kumar Talukdar Vs. Chandra
Prasad Goenka (supra), the accused was prosecuted for offence
under Section 138 of the N.I. Act before the Court of learned C.J.M.
Guwahati, the complainant had expired. It was observed that
though there is no provision for Substitution, Section 302(1),
which has, now, replaced Section 495, Cr. P.C., empowers the Court
to authorize the conduct of prosecution by any person and the
word "any person" would include the son of the complainant in a
case of present nature. The accused-opposite party herein, being
the son of the complainant, stands on the footing of "any person" as
envisaged by Section 302(1), Cr.P.C. On examination of all the
relevant provisions of the Criminal Procedure Code, the proposition
that criminal proceedings abate on the death of the complainant
appears to be legally unfounded and unacceptable. Criminal
proceedings, legally instituted, do not terminate or abate merely on
the death of the complainant. The learned Magistrate allow the
case to proceed by allowing "any person" including a pleader to
represent complainant by invoking the provisions of Section 302,
Cr.P.C. The exercise of the discretion by the learned Magistrate to
Sajakali Jamadar 8 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
allow the opposite party to represent the complainant is based on
sound judicial principles and is unimpeachable in law. While
referring to the case under Section 138 of the N.I. Act with the
issue relating to death of complainant reference was made to the
decision of Gujrat High Court in Anil G. Shah v. I.J. Chattaranjan
Co.5, and observed that in the said case it was laid down that in a
case under Section 138 of the N.I. Act, where the complainant dies
after taking of cognizance, the proceedings do not abate and trial
has to be taken to its logical end following due process and the
procedure laid down in Cr.P.C. There is no provision in the Code of
Criminal Procedure or the Negotiable Instruments Act laying down
that on account of death of payee, the trial must abate and as such,
the proceedings cannot abate on the death of the complainant
payee. Therefore, the legal heirs of the original complainant are
entitled to come forward and ask for allowing them to represent
the complainant so as to enable the Court to proceed further with
the trial. It was further observed 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
5 1998 Cri LJ 3870 (Guj)
Sajakali Jamadar 9 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
proceed with the complaint, there is no impediment on the part of
the Court, in allowing the son of the deceased-complainant to
represent the complainant. For proving the ingredients of the
offence allegedly committed by the accused-petitioner, the presence
of complainant was not necessary. When the son of the
complainant 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 appoint pleader of his choice.
There was no legal impediment on the part of the learned Court
below, to allow the proceedings of the complaint case
aforementioned to continue.
17. In the present case the learned Sessions Judge was of the
opinion that the Petitioners can be permitted to conduct and
continue with the prosecution but surprisingly did not allow them
to be brought on record. The decision of the Apex Court in the
case of Chand Devi Daga Vs. Manju K. Humatani & Ors. (supra)
does not prohibit the bringing of legal heirs of the complainant on
record after the death of the complainant in the case relating to
offence under Section 138 of the N.I. Act.
Sajakali Jamadar 10 of 11
::: Uploaded on - 08/02/2024 ::: Downloaded on - 12/02/2024 03:44:08 :::
final-26-WP(ST)-1039-2024.doc
ORDER
i) The impugned order dated 9th January 2024 to the
extent of not permitting the Petitioners to be brought on
record as legal heirs of the original complainant is set aside.
ii) The application preferred by the Petitioners vide
Exhibit-10 in Criminal Appeal No.225 of 2017 is allowed
and the Petitioners are permitted to be brought on record as
legal heirs of the original complainant by allowing the
amendment of the Criminal Appeal and other related
proceedings as per the Schedule annexed to the Misc.
Application.
iii) Writ Petition is disposed off accordingly.
(PRAKASH D. NAIK, J.)
Sajakali Jamadar 11 of 11
