2024 (5) TMI 614 - HC - Indian Laws

Legal heir can continue dishonour of cheque prosecution despite existence of other heirs

The Calcutta HC dismissed a revisional application challenging substitution of a legal heir in a dishonour of cheque case. The petitioner argued the ... Dishonour of Cheque - legal heir of deceased - substitution of the opposite party (deceased complainant) - It is the case of the petitioner that the opposite party is not the sole legal heir of deceased - HELD THAT:- The Supreme Court in Rashida Kamaluddin Syed & Anr. v. Shaikh Saheblal Mardan (Dead) through LRs. & Anr. [2007 (3) TMI 725 - SUPREME COURT] held that 'it is clear that on the death of Shaikh Saheblal, the case did not abate. It was, therefore, open to the sons of complainant to apply for continuation of proceedings against accused persons.' The learned Sessions Judge has allowed the application for substitution of the opposite party herein as one of the legal heirs of deceased Swapan Guha. The learned Judge had rightly held that it is for the legal heirs who intend to continue the prosecution on the original complainant’s death, who is to be permitted to prosecute the accused persons - Considering the said order under revision, this Court finds no irregularity in the said order, the same being in accordance with law thus requires no interference by this Court. This Court has observed that there are other legal heirs of deceased Swapan Guha. The learned Sessions Judge has also clearly held in his order under revision that there are other legal heirs. But as the opposite party being one of the legal heirs wishes to proceed with the case, the learned Trial Court has rightly allowed the same. The present revisional application is, thus, disposed of. Issues Involved:1. Substitution of legal heirs in a criminal case u/s 138 of the Negotiable Instruments Act.2. Validity of continuation of prosecution by legal heirs after the death of the original complainant.Summary:1. Substitution of Legal Heirs: The revisional application challenges an order dated 27.06.2022 by the 2nd Additional District and Sessions Judge, Kakdwip, allowing the substitution application by the opposite party in a criminal case u/s 138 of the Negotiable Instruments Act. The petitioner contends that the opposite party is not the sole legal heir of the deceased complainant, Swapan Guha, and presents evidence showing multiple legal heirs.2. Continuation of Prosecution by Legal Heirs: The judgment references the Supreme Court's ruling in Ashwin Nanubhai Vyas v. State of Maharashtra, which established that the death of a complainant does not necessarily abate a criminal case. The Code of Criminal Procedure allows for the continuation of prosecution by another person, including legal heirs, as per s. 495. This principle was reaffirmed in subsequent cases like Shri Balasaheb K. Thackeray v. Shri Venkat and Rashida Kamaluddin Syed v. Shaikh Saheblal Mardan, where the courts allowed legal heirs to continue prosecution under s. 302 of the Code.3. Application of Legal Precedents: The learned Sessions Judge permitted the opposite party, a legal heir of Swapan Guha, to continue the prosecution. The court found no irregularity in this decision, noting that the legal framework supports such substitution and continuation of prosecution by legal heirs.4. Court's Observations and Conclusion: The court acknowledged the presence of other legal heirs but upheld the decision to allow the opposite party to proceed with the case. The revisional application was disposed of, and the order was deemed compliant with the law, requiring no interference. All connected applications were also disposed of, and any interim orders were vacated.5. Compliance and Certification: A copy of the order was directed to be sent to the trial court for compliance. Urgent Photostat certified copies of the order were to be supplied to the parties upon fulfilling requisite formalities.