( 1 ) THIS is an application filed by the brother of the appellant for seeking leave of this Court to pursue the appeal on the death of original complainant i. e. the appellant herein. It is submitted that, initially, a complaint was filed by the applicant as a power of attorney holder of the original complainant. The said complaint was filed under section 138 of the Negotiable instruments Act. The trial Court acquitted the respondent - accused and against the said judgment and order, application for leave to file appeal was filed in this court and, during the pendency of the said application, the appellant died on 14-11-2004. Thereafter, the present application has been filed 'seeking substitution of the applicant's name in place of the appellant for continuing with the appeal.

( 2 ) IT is submitted that the applicant was conversant with the facts of the present case and he was the power of attorney of the complainant during his life time. The learned Counsel appearing on behalf of the applicant relied upon various judgments of this Court and Apex Court. He has relied upon the judgment of this Court in the case of Helen C. Pinheiro and others vs. M/s kamaxi Steel Products reported in 2000 Crl. L. J. 1622. He has also relied upon the judgments which are referred to in this judgment including the judgment of the Apex Court in the case of Ashwin Nanubhai Vyas vs. The State of maharashtra and another, reported in AIR 1967 SC 983. He has also relied upon the other recent judgments of the other High Courts. He has relied upon the judgment of the Gujarat High Court in the case of Anil G. Shah vs. J. Chittaranjan reported in 7995 Crl. L. J. 3870. He has further relied upon the judgment of the Punjab and Haryana High Court in the case of Harbans Singh and others vs. Gulzar Singh reported in 2007 Crllj. 2999. He has further relied upon the judgment of the Karnataka High Court in the case of Jimmy Jahangir madan vs. Mrs. Bolly Cariyappa Hindley (Dead) and others reported in (2003)115 Company Cases 770. He further relied upon the judgment of the madras High Court in the case of Indra and others vs. Surgent Magarajan reported in 2003 Crllj. 2623. He has, thereafter, relied upon the judgment of jharkhand High Court in the case of Ajay Kumar Agarwala and another vs. State of Jharkhand and another reported in 2003 Crllj. 3088. He has further relied upon the recent judgment of the Kerala High Court in the case of Smt. Bhagava vs. M/s Sri Kadasiddeshwara Trading Company and another reported in 2004 (1) crimes 701. He has further relied upon the judgment of the Apex Court in the case of Khedu Mohton and others vs. State of Bihar, reported in AIR 1971 SC 66.

( 3 ) THE learned Counsel appearing on behalf of the applicant submitted that in view of the ratio laid down in the said judgments, the said application may be allowed.

( 4 ) THE learned Counsel appearing on behalf of the respondents invited my attention to the provisions of section 394 of the Code of Criminal Procedure. He submitted that sub-clause (2) of section 394 specifically states that every other appeal under the Chapter shall abate on the death of the appellant. He submitted that in view of the specific provision under the Criminal Procedure Code, on the death of the appellant, the present appeal against acquittal also had abated and, therefore, the applicant had no locus or statutory right to continue the appeal and, therefore, the application is liable to be dismissed.

( 5 ) THE provision regarding abatement of appeal is made in section 394 of the Code of Criminal Procedure which reads as under :- 394. Abatement of appeals - (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused. (2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant. Provided that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant die