JUDGMENT
J.B. GoeI, J.
1. In this petition under Section 482 of the Code of Criminal Procedure (for short ‘the Code’) the petitioners challenge the legality of order dated 25.7.1998 passed by the learned Metropolitan Magistrate (M.M.) whereby the application dated 21.10.97 of the respondent has been allowed permitting the complaint being continued.
2. M/s. Raghuvansh Enterprises (hereinafter called the “complainant”), a partnership firm has filed a complaint through, its partner Shri Mohinder Paul Mehra for proceeding against M/s. Dior International (P) Ltd. and its Director, Shri Mohan Anand, the two petitioners herein under Section 138 read with Section 141 of the Negotiable Instruments Act (for short ‘the Act’).
3. Aforesaid Shri Mahinder Paul Mehra died on 11.7.97 and an application to implead/allow Shri Ravi Mehra to pursue the complaint was filed. This application has been allowed by the learned M.M.
4. Learned counsel for the petitioner has contended that the petitioner had made payments of the amounts due under the three cheques as mentioned in the complaint and as such the complaint would not survive. Secondly, the accused company has since been wound up and another application under Section 446 of the Companies Act was also filed to drop the proceedings. The Id. M.M. should have decided these two applications and the complaint should have been dismissed as infructuous. The impugned order is otherwise not valid.
5. The question is whether the Id. M.M. has committed any illegality in passing the impugned order. The complaint was filed on behalf of M/s. Raghuvansh Enterprises, a partnership firm through its partner Shri Mohinder Paul Mehra. Shri Mohinder Paul Mehra having died some corporeal person was required to be brought on record to pursue the complaint otherwise the complaint could not be continued and the accused were entitled to be acquitted under Section 256 of the Code. The said two applications of the petitioners could be considered after there was some one to represent the complainant firm.
6. The death of the complainant does not cause abatement of the proceedings. The Id. M.M. has discretion to allow the complaint to continue by a proper and fit person . in place of the deceased complainant. (Ashwin Nanubhai Vyas v. The State of Maharashtra and Anr, ).
7. In Associated Cement Co, Ltd. v. Keshavanand it has been held that:
“…. complainant must be a corporeal person who is capable of making physical presence in the Court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the Court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant and it must
necessarily associate a human being as de facto complainant to represent the former in court proceedings.”
8. It was further laid down in this case that where the person who represented the complainant is not available for any reason in such a case it is open to the de jure complainant company to seek permission of the Court for sending any other person to represent the company in the Court to avoid the consequences contemplated under Sections 249 or 256 of the Code.
9. It appears that Shri Mohinder Paul Mehra continued to pursue the complaint. After his death an application was filed by Smt. Sangeeta Mehra, one of the partners on behalf of the complainant seeking permission of the learned M.M. to pursue the complaint through Shri Ravi Mehra as her attorney. Smt. Sangeeta Mehra was and is a partner of the complainant firm. She could continue the complaint either herself or
through an attorney. She chose to pursue the complaint through Shri Ravi Mehra as an attorney. As appears from the partnership deed dated 1.4.1996 that Shri Ravi
Mehra was also taken as a partner in the firm on 1.4.1996. The learned trial court has
allowed this application and permitted Shri Ravi Mehra to pursue the complaint. He
has obviously exercised jurisdiction under Section 302 of the Code which he was com
patent to do.
10. Thus, there is no illegality or infirmity in the impugned order. This petition has no merit and is accordingly dismissed in limine.