JUDGMENT

M S Jawalkar, J. - Criminal Miscellaneous Application No. 120/2021 is an application for condonation of delay of around 311 days in filing Criminal Miscellaneous Application No. 121/2021, which is an application to bring the legal heir of the applicant on record.

2. It appears that vide judgment and order dated 07.07.2014 passed by the learned JMFC in Case No. OA/33/2012/B, the deceased applicant was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, for which, he was directed to undergo simple imprisonment for a period of one year and to pay compensation of Rs.10,25,000/- to the complainant and in default to undergo simple imprisonment for a period of two months. The said order dated 07.07.2014 was thereafter challenged by the deceased applicant before the learned Sessions Court in Criminal Appeal No. 97/2014, which was dismissed by the learned Sessions Court on 08.10.2015. Feeling aggrieved, the deceased applicant filed Criminal Revision Application No. 65/2016 before this Court, challenging the judgment and order dated 08.10.2015 passed by the learned Sessions Court, North Goa, Panaji.

3. It is submitted by Mr. Ganesh Naik, the learned Counsel for the applicant that the applicant, Jerry D'Souza expired on 28.02.2020 at Goa Medical College (GMC), Bambolim. It is submitted that due to the death of the applicant, the family of the applicant was under shock and sorrow state. Thereafter, due to COVID-19 pandemic and since there was lockdown, till December, 2020, the Counsel appearing on behalf of the applicant was not attending office. As such, the Advocate for the applicant was unaware of the death of the applicant. It is submitted that when Criminal Revision Application No. 65/2016 was listed for final hearing, the Advocate for the applicant tried to call the applicant, but failed. It is submitted that only when the Advocate for the applicant sent his office colleague to the residence of the applicant, he came to know that the applicant has expired. It is submitted that great prejudice and loss will be caused to the proposed legal heir, if the present application is not allowed. He, therefore, prays that delay of around 311 days in filing the application to bring the legal heir on record, be condoned.

4. The learned Counsel for the applicant has placed reliance on the decision of the Hon'ble Supreme Court in the case of Ramesan (D), Through LRs. Vs. State of Kerala, (2020) 3 SCC 45. He has also relied on the decision of Madras High Court in the case of M.L. Ravi Vs. The Chief Secretary & Others (W.P. No. 21701/2018 dated 23.01.2019); the decision of Gujarat High Court in Deceased Mafabhai Lalabhai Rabari Vs. State of Gujarat (Criminal Misc. Application No. 17987/2017 dated 24.08.2017); the decision of the Kerala High Court in Ambunhi Vs. State (Cri. Rev. Pet. No. 2310/2003 dated 26.02.2014).

5. It is submitted by Mr. Nilesh Shirodkar, the learned Counsel for respondent no. 1 that the criminal revision application along with the application for condonation of delay are bad in law and are liable to be dismissed at the threshold. It is submitted that there is no provision under Section 397 of Cr.P.C. for bringing the legal heirs on record and as such the criminal revision application is not maintainable. It is submitted that the legislative intention while enacting Section 397 of Cr.P.C. is very clear that legislature has not made any provision for bringing the legal heirs of the deceased accused, who died during the pendency of the criminal revision application. It is submitted that the legal heir of the deceased applicant has no right over the compensation deposited before this Court. In view thereof, he prays that the application be dismissed and the compensation deposited before this Court by the deceased applicant be released to respondent no. 1.

The learned Counsel for respondent no. 1 has placed reliance on the decision of the Hon'ble Supreme Court in the case of Praban Kumar Mitr