1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :08.03.2011 CORAM THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN Crl.R.C.(MD) No.199 of 2011 and M.P.(MD) Nos.1 and 2 of 2011 P.Francis ...Revision Petitioner/Accused Vs. K.Soundarakumar ...Respondent/Complainant Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C praying to call for the records in Cr.M.P.No.8771 of 2009 in S.T.C.No.60 of 2004 on the file of the Judicial Magistrate No.III, Madurai dated 31.03.2010 and to set aside the same. For petitioner : Mr.G.Anbusaravanan O R D E R The petitioner is the accused in S.T.C.No.60 of 2004 and the challenge is made to the order dated 31.03.2010 passed in Cr.M.P.No.8771 of 2009 by the Judicial Magistrate No.II, Madurai, under which the legal representative son of the complainant was substituted as a complainant. 2. One P.S.S.Krishnan, S./o. Sorna Nadar, Proprietor of S.K.KE & Co., Madurai - 9 has filed a complaint in S.T.C.No.60 of 2004 on the file of the Court of Judicial Magistrate No.III, Madurai against the petitioner herein for the alleged commission of offence under Section 138 of Negotiable Instruments Act. During the pendency of the complaint, the original complainant P.S.S.Krishnan died and his son, namely K.Soundarakumar filed a petition in Cr.M.P.No.8771 of 2009 to come on record in the place of the deceased complainant. 3. In the affidavit filed in support of the said petition, it is averred that the original complainant died on 15.07.2009 and therefore, he wants to come on record to prosecute the case; otherwise he will be put to great hardship and put to loss. 4. The petitioner herein, who was arrayed as a respondent in the said petition filed a counter stating among other things that the deceased complainant, who was examined as P.W.1 in his cross-examination admitted that he did not file any document to show that he is the proprietor of S.K.KE. & Co., and that the said concern is a partnership concern. It is further stated in the counter that since the firm, namely S.K.KE. & Co. is a partnership concern, on the demise of the original complainant, it should be represented by the Manager or partner or some other person who is connected with the aforesaid firm and the son of the original complainant cannot come on record to prosecute the complaint. 5. The Court of Judicial Magistrate No.III, Madurai taking into consideration, the averments made in the affidavit and counter, has allowed the application and thereby ordered to substitute the son of the original complainant as the complainant and aggrieved by the same, the present revision has been filed by the accused in S.T.C.No.60 of 2004. 6. The learned counsel appearing for the petitioner draw the attention of this Court to the oral testimony of P.Ws.1 and 2 and submits that it was admitted by the original complainant that the said concern was not a https://hcservices.ecourts.gov.in/hcservices/ 2 partnership concern and later on, on the retirement of one of the partner of the concern the original complainant took over the business of the concern as the proprietor. He further drawn the attention of this Court to the relevant portion of the cross-examination of the above said witnesses, wherein it has been stated that no document has been produced to show that the said concern is a proprietor concern. It is the submission of the learned counsel for the petitioner that in the absence of any relevant document, it can be presumed the firm, namely S.K.KE. & Co. is a partnership concern and hence, on the demise of the original complainant, his son cannot come on record and the said vital fact was not considered by the Court below and hence, prays for setting aside the order. 7. This Court heard the submissions made by the learned counsel appearing for the petitioner and perused the documents filed in the form of typed set of papers. 8. The lower Court has recorded the finding of fact that the petitioner herein has not disputed that K.Soundarakumar is the son of the original complainant, namely P.S.S. Krishnan. The lower Court has also given a finding that on the discharge of the original complainant, his legal heir can prosecute the case and for the said reasons has Court below allowed the said application. 9. This Court after considering the submissions made by the learned counsel for the petitioner and after the perusing the materials available on record is of the view that the admissions pointed out by the learned counsel for the petitioner in the oral testimony of P.Ws.1 and 2 can be appreciated only by the trial Court and not by this Court. Even though the son of the deceased complainant come on record under the impugned order, it is always open to the petitioner to urge the said issue during the course of trial. This Courts finds there is no infirmity in the order passed by the lower Court and this criminal Revision Case is liable to be dismissed. 10. Accordingly, the Criminal Revision Case is dismissed. Consequently, connected M.Ps. are dismissed. However, the petitioner is at liberty to take all defence available to him, including the point that Mr.Soundarakumar, son of the deceased complainant cannot prosecute the case. SD ASST REGISTRAR ( CRL SIDE ) /TRUE COPY/ SUB ASST REGISTRAR sj To: The Judicial Magistrate No.III, Madurai. COPY TO: THE SECTION OFFICER, CRL RECORDS, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI. DM:2011::MARCH:09::: Crl.R.C.(MD) No.199 of 2011 and M.P.(MD) Nos.1 and 2 of 2011 2P:3C:: 08.03.2011 https://hcservices.ecourts.gov.in/hcservices/