# Ram Avtar Agarwal v. State of U.P. & Anr

- **Citation:** (2025) 1 ILRA 252
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-22
- **Case number:** Application U/S 482 No. 21759 of 2024
- **Bench:** Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-avtar-agarwal-v-state-of-u-p-anr-54880
- **Pages:** 9

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 205, 302, 256 & 482
- The Bhartiya Nagarik Suraksha Sanhita,
2023 - Sections - 228, 279 & 339 -
Negotiable
Instruments
Act,
1881
-
Sections 138 & 139:
- Application -
challenging the entire proceeding pending u/s
138 of Act, 1881- offence of Dishonour of
cheque - father of opposite party no. 2 filed the
complaint against applicant - alleging that to
return the payment of booking amount of a flat
constructed by the applicant's company, a
cheque of Rs. 3 lakhs was issued in favour of
complainant, being a director of company - on
presenting in bank same was returned with
endorsement 'account closed' - trial court
summon the applicant - complainant died during
pendency trial - opposite party no. 2, son of
deceased complainant, moved an application,
for permitting him to continue the proceeding
being legal heir - trial court allowed the
application - same is under challenged in this
application, on the ground that permitting him
to purse the complaint on behalf of complaint,
which is absolutely illegal as the son has no
personal knowledge, so he cannot be allowed to
pursue the impugned proceeding - court find
that, from the conjoint reding of section 256
Cr.P.C. and section 302 Cr.P.C. as well as legal
position discussed, it is clear that the death of
complainant, his legal heir may be permitted to
continue the proceeding u/s 138 of the Act,
1881 personally or through pleader or through
power of attorney holder - held, there is no
requirement of substitution or impleading the
legal heir of the deceased complainant - hence,
it is not necessary for the concerned court to
dismissed the complaint u/s 256 Cr.P.C. - curt
should normally permit the legal heir of the
complainant to pursue the trial - accordingly,
application is rejected - however, directions
issued, to contest the trial and raise all grounds
available with the applicant, before the court
below, where the proceeding is pending since

## Text

252 INDIAN LAW REPORTS ALLAHABAD SERIES

20. The court below is free to proceed
against applicant nos. 1 and 7 and decide
Case No. 59 of 2016 (Smrita Srivastava Vs.
Rajiv
Kumar
Srivastava
and
others)
expeditiously within a period of 60 days
from the date of receiving the copy of this
order.

21. With the aforesaid direction, the
present application is partly allowed.

22. The Registrar (Compliance) is
directed to send a copy of this order to the
concerned court.
---------
(2025) 1 ILRA 252
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.01.2025

BEFORE

THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Application U/S 482 No. 21759 of 2024

Ram Avtar Agarwal ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rahul Chaudhary

Counsel for the Opposite Parties:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 205, 302, 256 & 482
- The Bhartiya Nagarik Suraksha Sanhita,
2023 - Sections - 228, 279 & 339 -
Negotiable
Instruments
Act,
1881
-
Sections 138 & 139:
- Application -
challenging the entire proceeding pending u/s
138 of Act, 1881- offence of Dishonour of
cheque - father of opposite party no. 2 filed the
complaint against applicant - alleging that to
return the payment of booking amount of a flat
constructed by the applicant's company, a
cheque of Rs. 3 lakhs was issued in favour of
complainant, being a director of company - on
presenting in bank same was returned with
endorsement 'account closed' - trial court
summon the applicant - complainant died during
pendency trial - opposite party no. 2, son of
deceased complainant, moved an application,
for permitting him to continue the proceeding
being legal heir - trial court allowed the
application - same is under challenged in this
application, on the ground that permitting him
to purse the complaint on behalf of complaint,
which is absolutely illegal as the son has no
personal knowledge, so he cannot be allowed to
pursue the impugned proceeding - court find
that, from the conjoint reding of section 256
Cr.P.C. and section 302 Cr.P.C. as well as legal
position discussed, it is clear that the death of
complainant, his legal heir may be permitted to
continue the proceeding u/s 138 of the Act,
1881 personally or through pleader or through
power of attorney holder - held, there is no
requirement of substitution or impleading the
legal heir of the deceased complainant - hence,
it is not necessary for the concerned court to
dismissed the complaint u/s 256 Cr.P.C. - curt
should normally permit the legal heir of the
complainant to pursue the trial - accordingly,
application is rejected - however, directions
issued, to contest the trial and raise all grounds
available with the applicant, before the court
below, where the proceeding is pending since
2018. (Para - 16, 17, 21)

Petition Dismissed. (E-11)

List of Cases cited:

1. A.C. Narayanan Vs St. of Mah. & anr.- (2014)
11 SCC 790),

2. Shashibala Agrawal Vs St. of U.P. & anr.-
[2024 SCC OnLine All 1216],

3. Kishore Shankar Signapurkar Vs St. of U.P. &
anr.- [2024 SCC OnLine All 5279],

4. Ashwin Nanubhai Vyas Vs St. of Mah.- [966
SCC OnLine SC 253],

5. Jimmy Jahangir Madan Vs Bolly Cariyappa
Hindley (dead) lrs. - [2004 (12) SCC 509],
1 All. Ram Avtar Agarwal Vs. State of U.P. & Anr.
253
6.Kushal Kumar Talukdar Vs Chandra Pd.
Goenka - [2004 SCC OnLine Gauhati 130],

7. M/s Sri. Sai Mourya ESt.s & Projects Pvt Ltd.
& Others Vs St. of A.P. rep by its Public
Prosecutor, High Court of A.P., Hyderabad &
anr.- [2018 SCC OnLine HYD 43],

8. D. Vinod Shivappa Vs Nanda Belliappa
reported in (2006) 6 SCC 456,

9. Lafarge Aggregates And Concrete India Pvt.
Ltd. Vs Sukarsh Azad & anr.- 2014 (13) SCC 779,

10. Vijay Kumar Vs St. of U.P. & anr.- in
Application u/s 482 No.17464 of 2024 - decided
on dated 23.05.2024.

(Delivered by 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 StationChhata, 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 CompanyAnupam 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.
254 INDIAN LAW REPORTS ALLAHABAD SERIES

(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
1 All. Ram Avtar Agarwal Vs. State of U.P. & Anr.
255
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.
Nonappearance 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.
256 INDIAN LAW REPORTS ALLAHABAD SERIES
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 AdvocateGeneral 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
1 All. Ram Avtar Agarwal Vs. State of U.P. & Anr.
257
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
258 INDIAN LAW REPORTS ALLAHABAD SERIES
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-ofattorney 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-ofattorney 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-ofattorney 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 powerof-attorney
holders
to
continue
the
prosecution on their behalf."

14. The above issue also came into
consideration before the High Court of
1 All. Ram Avtar Agarwal Vs. State of U.P. & Anr.
259
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 accusedpetitioner, 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."
260 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
---------
(2025) 1 ILRA 260
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2025

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 30740 of 2024

Premanshu ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant: