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2025 DAILYLAW 40493 (KAR)

SRI LATE D P DAYANANDA v. SRI B P KUMAR BELAME

CRL.A/525/2019 · 2025-12-10

G Basavaraja

Criminal Appealbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 525 OF 2019 (A) BETWEEN: SRI LATE D P DAYANANDA S/O LATE D.N. PUTTARAJU SINCE DEAD BY HIS LRS 1. SMT. PUNITHA R ARADHYA W/O LATE D.P.DAYANANDA AGED ABOUT 35 YEARS 2. MASTER LAKSH D., S/O LATE D.P. DAYANANDA AGED ABOUT 05 YEARS BOTH ARE RESIDING AT NO.62 5TH CROSS, 21ST MAIN, P.F LAYOUT, MARENAHALLI, VIJAYANAGARA, BANGALORE-560 040. …APPELLANTS (BY SRI. CUCKOO DELHI., ADVOCATE) AND: SRI B P KUMAR BELAME S/O PUTTEGOWDA, AGED ABOUT 60 YEARS, DIAMOND COFFEE BENAKA NILAYA, B.M.ROAD, BALLUPET-573214 SAKLESHPUR TALUK HASSAN DISTRICT. Digitally signed by LAKSHMINARAYAN N Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 …RESPONDENT (BY SRI. A.H. BHAGAVAN., ADVOCATE) THIS CRL.A. IS FILED U/S 378(4) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 01.02.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, SOMWARPET, KODAGU IN C.C.NO.820/2013- ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 ON N.I ACT. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT The appellant has preferred this appeal against the order passed by the Prl. Civil Judge and JMFC, Somwarpete (hereinafter referred to as 'the Trial Court') in C.C.No.820/2013, dated 01.02.2019. 2. Brief facts leading to this appeal are that, one D.P. Dayananda, son of Puttaraju, filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act') against the accused. Same was registered in P.C.R.No.167/2013. After sowrn statement the trial Court took cognizance for the offence under Section 138 of NI Act and case was registered in C.C.No.820/2013 and summons was issued to the accused. Accused appeared before the trial Court. Substance of plea was recorded. Accused - 3 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 pleaded not guilty and claimed to be tried. The evidence of PW1 was recorded and eight documents were marked as Ex.P1 to Ex.P8 and case was posted for cross-examination. 3. When the case was posted for cross-examination, the complainant passed away on 04.07.2017. Death Certificate is also produced. That on 03.03.2018, the legal representatives of the complainant/D.P. Dayananda, along with the affidavit of Smt. Punitha R. Aradhya, filed application under Section 256 read with Section 302 Cr.P.C., to come on record. Objection was filed to the said application. On hearing arguments on the Application, the trial Court rejected the Application. Being aggrieved by the said order, the complainant/appellant has preferred this appeal. 4. Learned counsel for the appellant would submit that the trial Court has committed an error in holding that there is a delay on the part of the complainant to bring the legal representatives within the stipulated time and that no application for condonation of delay being filed and in view of this, no explanation as to delay in filing the application. He would further submit that under the Criminal law, there is no - 4 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 provision to file separate application for condoning delay. The basic application filed by the complainant to bring the legal representatives of the deceased/complainant is enough to prosecute the criminal case. The proceedings under Section 138 of NI Act is a summary trial. There is no necessity for the complainant to file an additional application to condone the delay. The complainant died on 04.07.2017. His wife Punitha and her minor son were the legal representatives of the deceased complainant, who had filed an application on 03.03.2018 to come on record. So there is 8 months delay in bringing the legal representatives of the complainant. But it is a settled law that after the death of the complainant, his legal representatives can proceed with the case on behalf of the complainant. Before dismissing the Application, the Court would have suggested the complainant if there is a necessity of filing an application under Section 5 of Limitation Act to condone the delay in bringing the legal representatives and to set-aside the abatement to bring the legal representatives on record, just like a civil suit. But the trial court has not given an opportunity to the complainant's counsel. Instead, the trial Court has passed an order of dismissing the Application. The - 5 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 order passed by the trial Court is bad and violative of principles of natural justice. Hence, on these grounds it is sought for allowing the appeal. 5. Respondent, despite having appeared before the trial Court, has remained absent and unrepresented before this Court. 6. Having heard the arguments of appellant's counsel and having perused the materials placed before this Court, the following points would arise for my consideration: '1. Whether the trial Court is justified in rejecting the application filed under Section 256 read with Section 302 Cr.P.C? 2. What order? 7. My answer to the above points are as under: Point No.1: In the negative. Point No.2: As per the final orders. Regarding Point No.1: 8. I have examined the materials placed before this Court. It is not in dispute that the complainant/D.P. Dayananda died on 04.07.2017. The appellant being the legal - 6 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 representative of the deceased complainant/D.P. Dayananda has filed application under Section 256 read with Section 302 Cr.P.C on 03.03.2018, to bring the legal representatives of the complainant/D.P. Dayananda on record. The said application is supported with the affidavit of Punitha R. Aradhya wife of deceased-complainant/D.P. Dayananda. In the affidavit, she has stated that complainant/D.P. Dayananda is her husband and he died on 04.07.2017 leaving behind herself and her minor son Laksh. D; and they are the only legal heirs of the deceased-complainant/D.P. Dayananda. Her son being a minor, she is representing herself and on behalf of her son as a natural guardian. They have right to claim in this case, as such they need to be brought on record in place of deceased complainant/D.P. Dayananda and they are the necessary parties to the case. 10. On behalf of accused, objections were filed in which it is stated that the application filed by the legal representatives. Application is not maintainable either in law or in facts. That no law permits the legal representatives to continue the case, on the death of the complainant by his legal representatives and under Section 256(2) Cr.P.C., accused may - 7 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 be acquitted in case death of the complainant. Further, no person shall be permitted to continue the prosecution in case of death of the complainant as per provided under law under Section 302 Cr.P.C. The application is hit by the principles of limitation because the deceased complainant/D.P. Dayananda died on 04.07.2017 and the application is filed on 03.03.2018. Any advocate is not empowered to continue the case after the death of the complainant, the legal representatives cannot step into the shoes of the complainant, as they are not the original appellants in the above case. With above contentions, he has sought for dismissing the application. 11. The death certificate produced by the appellant reveals that the complainant/D.P. Dayananda died on 04.07.2017. The application filed under Section 256 read with Section 302 Cr.P.C was filed on 03.03.2018. There is a delay of 7 months 29 days in filing this application. The respondents have not disputed the relationship between the appellant and deceased complainant. The trial Court has rejected the application only on the ground that no application is filed for condonation of delay in filing the legal representatives application. - 8 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 12. In this regard, it is appropriate to mention as to the provision of Section 256 of Cr.P.C. The same reads as under: ''256. 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.'' 13. In Criminal Procedure Code, 1973, no limitation is prescribed to bring the legal representatives of deceased complainant in summons cases filed by the complainant. Therefore, Article 137 of Part II of the Limitation Act, 1963 is applicable, which reads as under: - 9 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 PART II-OTHER APPLICATIONS Description of application Period of limitation Time from which period begins to run 137. Any other application for which no period of limitation is provided elsewhere in this division. Three years When the right to apply accrues. 14. In the case on hand, the legal representatives of the deceased complainant have filed application after 7 months 29 days of the death of the deceased complainant. The trial Court has committed an error in holding that the application is barred by time. Since the appellants have filed application to bring the LRs of the complainant under Section 256 of Code of Criminal Procedure, 1973, within 3 years from the date of death of the complainant, the application is in time. Accordingly, I hold that the trial Court is not justified in dismissing the application filed under Section 256 r/w Section 302 of Cr.P.C. Hence, I answer point No.1 in negative. Regarding Point No.2: In the result, I proceed to pass the following: ORDER (i) The appeal is allowed. - 10 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 (ii) The order passed by the Prl. Civil Judge and JMFC, Somwarpete in C.C.No.820/2013, dated 01.02.2019 on application filed under Section 256 r/w Section 302 of Cr.P.C is set-aside. (iii) Consequently the application filed under Section 256 r/w Section 302 of Cr.P.C is allowed. (iv) The proposed legal representatives of the complainant shown in the application are permitted to come on record. (v) The trial Court is directed to permit the legal representatives of the complainant to come on record as legal representatives of deceased complainant. Thereafter, the trial Court is directed to proceed with the case in accordance with law. (vi) The appellants/proposed legal representatives are directed to appear before the trial Court without any further notice on 28.01.2026. - 11 - HC-KAR NC: 2025:KHC:52273 CRL.A No. 525 of 2019 (vii) The Trial Court is directing to dispose of the matter as early as possible. (viii) Registry is directed to send the copy of this judgment along with the trial Court records back to the trial Court. Sd/- (G BASAVARAJA) JUDGE RL List No.: 2 Sl No.: 73