Madhya Pradesh High Court
Dr. Harpreet Randhawa @ Preeti Randhawa vs M/S Goel And Goel A Partnership Firm on 8 May, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 8 th OF MAY, 2024
MISC. CRIMINAL CASE No. 15075 of 2022
BETWEEN:-
1. DR. HARPREET RANDHAWA @ PREETI
RANDHAWA W/O LATE SHRI CHANNI
RANDHAWA, AGED ABOUT 50 YEARS,
OCCUPATION: PROFESSOR RANDHAWA HOUSE
GANDHI NAGAR ITARSI, DISTRICT
HOSHANGABAD (MADHYA PRADESH)
2. KU. SIMRAN RANDHAWA D/O LATE SHRI CHANNI
RANDHAWA, AGED ABOUT 22 YEARS,
OCCUPATION: SELF EMPLOYED RANDHAWA
HOUSE GANDHI NAGAR ITARSI, DISTRICT
HOSHANGABAD (MADHYA PRADESH)
.....APPLICANTS
(BY SHRI R.S. JAISWAL - SENIOR ADVOCATE WITH SHRI RAJMANI
SHARMA - ADVOCATE)
AND
M/S GOEL AND GOEL A PARTNERSHIP FIRM THROUGH
ITS PARTNER SHRI SURESH GOEL S/O LATE SHRI
RAMAVTAR GOEL AGED ABOUT 68 YEARS 7TH LINE,
ITARSI, TAHSIL ITARSI, DISTRICT HOSHANGABAD
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AJAY GUPTA - SENIOR ADVOCATE WITH SHRI RAJEEV MISHRA
- ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
T his petition has been filed by the applicants under Section 482 of
Cr.P.C. seeking quashment of proceedings pending before the Court of Judicial
Magistrate First Class, Itarsi in MJC No.32/2022 regarding application for
execution of recovery as well as the impugned summons dated 02.03.2022 and
also set aside the order dated 31.01.2022 passed by the III Additional Sessions
Judge, Itarsi in Cr.A.No.15/2019.
2. The facts as detailed in the petition reflect that the respondent herein
filed a complaint under Section 138 of Negotiable Instrument Act against late
Channi Randhawa who was husband of the applicant No.1 and father of the
applicant No.2. The said complaint under Section 138 of N.I. Act was
ultimately decided vide judgment and decree dated 28.03.2019 (Annexure P/2).
The cheque in question was of Rs.2,94,17,500/- and the trial Court while
convicting late Channi Randhawa directed him to undergo R.I. for one year and
also awarded a compensation of Rs.5,00,00,000/- to the respondent. Assailing
the judgement and decree dated 28.03.2019 delivered by the trial Court, an
appeal was preferred by late Channi Randhawa. During pendency of the said
appeal, late Channi Randhawa died while in custody. The appeal accordingly
came up for hearing on 31.01.2022 and was dismissed by the Appellate Court
as abated. After dismissal of the appeal, respondent moved an application
under Sections 421 and 431 of Cr.P.C. while impleading the present applicants
as respondents and it was prayed that the amount of compensation be
recovered upon disposal of the property left behind by late Channi Randhawa.
Summons were issued to the present applicants and upon receiving of the same,
this petition under Section 482 of Cr.P.C. has been filed by the applicants.
3. It is contended by the senior counsel for the applicants that in the
present case firstly, the present applicants could not have been addressed as
accused but unfortunately, in the summons which were issued to the present
applicants vide Annexure P/5, the present applicants were mentioned as
accused. It is further contended by the senior counsel that in the present case,
the present applicants being legal heirs ought to have been permitted to pursue
the appeal. It is also contended by the senior counsel that before the Appellate
Court, even a prayer was made by the counsel of late Channi Randhawa to seek
instructions from the legal heirs, however, the Court without granting time to
seek instructions, proceeded to pass the impugned order. It is contended by the
senior counsel that in terms of Section 394 of Cr.P.C., an opportunity ought to
have been afforded to the present applicants to continue with the appeal. Thus,
senior counsel contends that the impugned order be set aside and the present
applicants be permitted to continue the appeal. In support of his contention,
counsel has placed reliance on the decisions of Apex Court in the cases of M.
Abbas Haji vs. T.N. Channakeshava reported in AIR 2019 SC 4617 and
Ramesan (dead) Through Legal Representatives Girija A. vs. State of
Kerala reported in (2020) 3 SCC 45.
4. Per contra, learned senior counsel for the respondents contends that in
the present case, there was no sentence of fine, therefore, the appeal stood
abated and if the present applicants were willing to pursue the appeal, they
should have approached the Appellate Court within a period of 30 days from
the date of death of late Channi Randhawa. It is contended by the senior
counsel that despite the date of death of late Channi Randhawa who expired on
04.11.2021, no application to pursue the appeal was moved by the present
applicants and accordingly, the appeal rightly dismissed as abated by the
Appellate Court and in order to recover the dues, the provisions of Sections
421 and 431 of Cr.P.C. were invoked by the respondent which ensued in
issuance of summons/notice to the present applicants. It is further contended
by the senior counsel that it is the right of the complainant to recover the
amount of compensation from the estate left behind by the late Channi
Randhawa (deceased). In support of his submission, counsel has placed
reliance on the decision of the Apex Court in the case of Kumaran vs. State of
Kerala and Another reported in (2017) 7 SCC 471.
5. No other point is argued or pressed by both the parties.
6. Heard the rival submissions of both the parties and perused the
record.
7 . A perusal of the record it reflects that the judgment of conviction
under Section 138 of N.I. Act was assailed by late Chhani Randhawa by filing
an appeal. Late Channi Randhawa expired during pendency of the appeal and
before the Appellate Court, a request was made by the counsel for late Channi
Randhawa for time to seek instructions from the legal heirs/relatives of late
Channi Randhawa as to whether they were willing to pursue the appeal or not ?
Though, the factum of prayer was recorded by the Appellate Court in order
dated 31.01.2022 (Annexure P/3), but ultimately, proceeded to pass an order
pertaining to abatement of the appeal on the ground that no application to
pursue the appeal was moved by the legal representatives of the
deceased/applicant.
8. In the considered view of this Court, the Appellate Court committed
an error while passing the impugned order dated 31.01.2022 inasmuch as, the
counsel who was representing late Channi Randhawa had even made a prayer
before the Appellate Court to grant time of 15 days so as to ascertain as to
whether the legal heirs of late Channi Randhawa were willing to pursue the
appeal or not ? Despite there being such a prayer by the counsel for late Channi
Randhawa, still the Appellate Court proceeded to pass the impugned order
dated 31.01.2022.
9. The Apex Court in the case of Ramesan (supra) while dealing with
the provisions of Section 394 of Cr.P.C., held in paragraphs 19, 20 and 21 as
under:-
"19. We, thus, conclude that the appeal filed by accused Ramesan in
the High Court was not to abate on death of the accused. The High
Court rightly did not direct for abatement of appeal and proceeded
to consider the appeal on merits. The appeal before the High Court
being against sentence of fine was required to be heard against the
sentence of fine despite death of the appellant-accused.
20. Although, we have upheld the view of the High Court that
appeal filed by the accused was not to abate and was required to be
heard and decided on merits but there is one aspect of hearing of
the appeal before the High Court, which needs to be noted. From
the judgment of the High Court, it does not appear that after the
death of the appellant-accused, his legal heirs were given
opportunity to proceed with the appeal against the sentence of fine.
The judgment of the High Court does not also mention that any
counsel has appeared for the legal heirs. The High Court ought to
have given an opportunity to the legal heirs of the accused to make
their submissions against the sentence of fine, which fine could
have been very well recovered from the assets of the accused in the
hands of the legal heirs.
21. In the above view of the matter, we are of the view that ends of
justice be served in reviving Criminal Appeal No. 254 of 2007
before the High Court to give an opportunity to the legal heirs of
the accused to make their submissions against the sentence of fine."
10. In view of the judgment of the Apex Court in the case of Ramesan
(supra), this Court is also of the view that the present applicants ought to have
been permitted at least to pursue the appeal, as undisputedly, the present
applicants are willing to pursue the appeal.
11. Thus, this petition is allowed. The impugned order dated 31.01.2022
is set-aside. The impugned summons issued against the present applicants are
also set-aside. The application filed under Sections 421 and 431 of Cr.P.C.
stands dismissed while reserving the liberty with the respondent to move afresh
in future at appropriate stage.
12. Let Criminal Appeal No.15/2019 be revived and restored to its
original number. The Appellate Court shall proceed to decide the appeal while
extending opportunity of hearing to the present applicants being legal
representatives of the original deceased/applicant late Channi Randhawa who
are willing to pursue the appeal.
13. Let the appeal be decided within a period of 90 days upon its revival
in terms of this Order. Till the disposal of appeal, the interim order passed by
this Court dated 02.03.2023, shall remain in force.
14. The present applicants herein shall not alienate any immovable
property belonging to the deceased late Channi Randhawa during pendency of
the appeal nor shall create any third party rights.
15. In view of the aforesaid, the present petition filed under Section 482
of Cr.P.C. stands allowed to the extent indicated hereinabove.
(MANINDER S. BHATTI)
JUDGE
sp
