LAL, J. - (1.) THIS revision petition under Section 397 read with 401 Cr. P. C. is directed against the order dated 26. 6. 2006 passed by the learned Addl. Civil Judge (Jr. Div.)-cum-Judicial Magistrate No. 3, Alwar in Criminal Case No. 246/2003 whereby the application filed by the non-Section No. 2 Kedar Vyas for his substitution in place of Pyare Lal, complainant (since deceased) has been allowed.
(2.) THE relevant facts are that one Pyare Lal filed a complaint in the learned court below under Section 138 of the Negotiable Instruments act, 1881 (for short, "the Act") against the accused- petitioner. After completion of the evidence of the complainant and recording of the statements of the accused under Section 313 Cr. P. C. , the complainant appears to have died at the stage of evidence of the defence. So, non-petitioner No. 2 filed an application on 1. 7. 2005 for permission to the substitute him in place of the complainant as his legal heir and to prosecute the aforesaid complaint which he was already prosecuting as power of attorney holder of the complainant. After hearing both sides, the trial court allowed the application and permitted the non-petitioner No. 2 to prosecute the complaint in place of deceased complainant Pyarelal Vyas which order is under challenged in this revision petition. Learned counsel for the petitioner has contended that there is no provision in the Code of Criminal Procedure, 1973 (in short, "the Code") to substitute the legal heirs of the deceased complainant in his place after his death and the complaint does not survive which ought to have been dismissed. the trial Court having not done so, has committed illegality to substitute the non-petitioner No. 2 in place of deceased complainant for prosecuting the complaint in his place. After hearing learned counsel for the accused-petitioner, I have perused the impugned order which is well considered and well reasoned and in the facts and circumstances of the case is not only reasonable, appropriate and just, but is also based on the law laid down by the Hon'ble Apex Court Ashvin Nanu Bhai Vyas vs. State of Maharashtra & Ors. (1967 (1) SCR 807) wherein the mother of the deceased complainant was granted permission to prosecute the complaint. The learned court below has rightly observed that the authority cited by the learned counsel for the accused- petitioner being distinguishable on facts is of no avail to the accused-petitioner. The learned Magistrate has also alluded to Section 256 Cr. P. C. which provides for dismissal of the complaint for the non-appearance or death of the complainant. This section clearly empowers the Magistrate that where the complainant is represented by a pleader or by the officer conducting the prosecution and the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the attendance and proceed with the case. Sub-section (2) of Section 256 provides that the provisions of sub-section (1) may be applied also to the cases where the non-appearance of the complainant is due to his death. The view taken by the learned Magistrate and the order passed by him does not suffer from any error, illegality or impropriety and calls for no interference in exercise of the limited scope of revisional powers of this Court.
(3.) CONSEQUENTLY, this revision petition is dismissed. .;