Death of Accused or Complainant in Section 138 Trials: Criminal Abatement, Heirs' Rights & Succession Rules

Authored by: Advocate Kishan Kumar

Advocate & Legal Consultant • Delhi High Court & District Courts

Given the chronic judicial backlogs in Indian district courts, Section 138 cheque bounce proceedings frequently span several years. A common and deeply complex scenario occurs when either the accused drawer or the complainant payee passes away before final judgment. When an accused dies, criminal liability is extinguished under the doctrine of abatement enacted in Section 435 of the Bharatiya Nagarik Suraksha Sanhita, 2023. Conversely, when a complainant dies, the criminal complaint does not perish; instead, legal heirs possess statutory rights under Section 341 BNSS to step into the litigation. Navigating these rules is essential for protecting the family estate and continuing legitimate recovery claims.

1. The Reality of Mortality in Prolonged Cheque Bounce Trials

In District Courts across Delhi NCR—whether Saket, Tis Hazari, Patiala House, Rohini, Dwarka, Gurugram, or Faridabad—cheque bounce complaints instituted under Section 138 of the Negotiable Instruments Act, 1881 routinely languish for three to seven years. Despite statutory provisions mandating summary trials under Section 143 to conclude within six months, systemic trial backlogs, service delays, interlocutory revisions, and mediation referrals mean that proceedings often outlive the litigants themselves.

When a party to a Section 138 trial passes away pending inquiry, trial, or appeal, judges, litigants, and junior advocates frequently grapple with fundamental procedural questions:

• If the accused (drawer) dies, does the criminal case continue against their spouse, children, or legal heirs? Can family members be jailed for the unpaid debt?
• If the complainant (payee) dies, does the criminal complaint automatically abate and get dismissed, or can the legal heirs step into the shoes of the deceased to recover the money?
• What happens if the accused dies after being convicted and while an appeal against the jail term and compensation order is pending before the Sessions Court or High Court?

Answering these questions requires analyzing the interplay between the Negotiable Instruments Act, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Code of Civil Procedure, 1908 (CPC), and landmark Supreme Court jurisprudence.

2. Death of Accused: Absolute Abatement of Criminal Proceedings

In Indian criminal jurisprudence, criminal liability is personal, individual, and punitive. It is governed by the ancient legal maxim actio personalis moritur cum persona (a personal right of action dies with the person). You cannot punish a deceased person, nor can criminal guilt be inherited by descendants.

When the accused drawer dies during the trial before the Metropolitan Magistrate:

1. Criminal Proceedings Terminate: Defense counsel or the family of the accused places a certified copy of the Death Certificate on record. The Magistrate is legally bound to record an order: "Proceedings against the accused stand abated." The criminal file is permanently consigned to the record room.
2. Legal Heirs Cannot Be Impleaded as Accused: Complainants occasionally file applications praying for the "substitution of legal heirs" as accused under Section 138. Any such application is void ab initio. A Magistrate who allows legal heirs to be substituted in a criminal complaint commits an incurable jurisdictional illegality. Neither a spouse nor children can be prosecuted, arrested, or compelled to furnish bail for an instrument they did not draw.

3. Complainant's Civil Remedy: Recovery Against Estate & Heirs

While the criminal punishment of imprisonment dies with the accused, the civil monetary debt does not automatically vanish. The holder of the dishonoured cheque retains civil remedies, subject to strict procedural and statutory limits under the Code of Civil Procedure, 1908:

Under Section 50 and Section 52 of the Code of Civil Procedure, 1908, where a decree is executed against the legal representative of a deceased debtor, the legal heir is liable only to the extent of the property of the deceased that has come into their hands and has not been duly disposed of. If the deceased left no inheritance or assets, the complainant cannot recover a single rupee from the personal earnings or property of the children or surviving spouse.

4. Death of Complainant: Why Proceedings Do Not Abate Automatically

A completely different legal mechanism applies when the complainant (payee/holder) passes away during the trial. Drawers facing trial frequently believe that upon the complainant's death, the case will collapse and be dismissed.

That belief is erroneous. Cheque bounce is a complaint case instituted under Section 142 of the NI Act. More than half a century ago, the Constitution Bench of the Supreme Court of India in Ashwin Nanubhai Vyas v. State of Maharashtra (AIR 1967 SC 983) established that the death of a private complainant does not ipso facto terminate criminal proceedings.

In Chand Devi Daga v. Manju K. Hummatramka (2018) 1 SCC 71, the Supreme Court unequivocally confirmed that legal heirs of a deceased complainant have a legitimate right to pursue criminal complaints and revisions to secure financial justice and protect the estate of the deceased.

5. Procedural Protocol Under Section 341 BNSS (Section 302 CrPC)

When a complainant dies during a pending Section 138 trial, the surviving spouse, children, or legal representatives must execute a disciplined procedural protocol before the trial Magistrate:

• Step 1: Intimation of Demise & Adjournment

  Counsel representing the deceased complainant appears on the scheduled hearing date, files a formal memo informing the court of the complainant's death, and seeks a brief adjournment to bring the legal heirs on record.

• Step 2: Procuring Successor Documentation

  Procure the certified Death Certificate issued by the Municipal Corporation (MCD/NDMC in Delhi, or Municipal Corporation of Gurugram/Faridabad). Obtain a Surviving Member Certificate (SMC) from the jurisdictional Revenue Tehsildar / SDM, or a registered Will / Succession Certificate.

• Step 3: Filing the Section 341 BNSS Application

  Move a formal application under Section 341 BNSS (Section 302 CrPC) seeking permission to conduct and continue the prosecution. The application must state that the applicant is the legal heir and administrator of the deceased's estate, and that the financial claim arising from the dishonoured cheque constitutes an asset belonging to the estate.

• Step 4: Amending the Memo of Parties

  Upon the Magistrate allowing the application, file an Amended Memo of Parties titling the complainant as: "State / Estate of Late [Name of Deceased] through Legal Heir [Name of Applicant]... COMPLAINANT."

• Step 5: Leading Evidence (BSA Compliance)

  If the complainant died before cross-examination was concluded, their untested affidavit cannot be treated as complete evidence. The substituted legal heir must lead evidence of facts within their personal knowledge, or summon bank managers and official records under Section 61 and 63 of the Bharatiya Sakshya Adhiniyam, 2023.

6. Death During Conviction Appeal: The Chand Devi Daga Benchmark

A critical scenario arises when the accused is convicted by the trial court, sentenced to a term of imprisonment, and directed to pay a hefty financial compensation or fine (e.g., Rs. 25 Lakhs) under Section 357 CrPC / Section 395 BNSS, but dies while an appeal before the Sessions Court or High Court is pending.

Does the entire appeal abate, leaving the conviction intact or vacating the fine?

Therefore, if an accused dies after being convicted under Section 138, their surviving relatives must file an application within 30 days under the proviso to Section 435(2) BNSS before the Appellate Court to contest the conviction and overturn the financial penalty.