IMPORTANT POINT
A complainant has got no right to continue with an appeal preferred challenging acquittal of an accused in a complaint u/s 138 of Act, when accused dies during pendency of appeal even if same is preferred after obtaining special leave as appeal would abate on death of accused.

J.M. James, J.—The right of the appellant-complainant in proceeding with an appeal, preferred after obtaining special leave, challenging the order of acquittal of the accused under Section 138 of the Negotiable Instruments Act in short ‘the Act’, even after the death of the accused, is the point that is raised for consideration of this Court.

2. The appellant was the complainant, in C.C. No. 316/1996 on the file of the Judicial Magistrate of First Class, Varkala. After appreciating the evidence adduced by both sides, the Trial Court found the accused not guilty and, therefore, acquitted him. On obtaining special leave, the appellant came before this Court preferring this appeal, under Section 378 of the Code of Criminal Procedure, 1973, in short Cr.P.C.

3. During the pendency of the appeal, it is conceded by either side that the accused died. A question, therefore, arose whether an appeal could be pursued by the complainant, appellant, after impleading the legal representatives of the deceased accused.

Section 394, Cr.P.C., states as follows:

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 dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal; and if leave is granted, the appeal shall not abate.

Explanation—In this section, “near relative” means a parent, Spouse, lineal descendant, brother or sister.

4. Section 377, Cr.P.C. is dealing with the appeal, preferred by the concerned State Government, against the sentence on the ground of its inadequacy. Section 378, Cr.P.C., is dealing with the appeal in the case of acquittal of the accused, on different stages and conditions. Thus every appeal that is preferred challenging the inadequacy of the sentence or on the ground of acquittal of the accused, would finally abate on the death of the accused.

5. However, it is necessary to differentiate that all the appeals, filed under Chapter XXIX of Cr.P.C. (except an appeal from a sentence of fine), shall finally abate on the death of the appellant; unless leave is granted by the Court on the application of the near relatives of the deceased, to continue with the appeal in case of sentence passed, is of death or of imprisonment.

6. The Bar placed reliance on State of Andhra Pradesh v. S. Narasimha Kumar & Ors.1 The facts of the case show that accused persons therein were found guilty and, therefore, convicted under various offence of the Indian Penal Code and, therefore, awarded sentence of various descriptions. However, High Court had set aside the conviction and sentence of the third accused, on Chandra Sekhar. Therefore, the State challenged the same, on obtaining special leave before the Apex Court, under Article 136 of the Constitution of India. The wife of the deceased, on the other hand, contented relying on the Section 394, Cr.P.C., that on the death of the accused, the proceedings against the accused would abate. Whereas the State had maintained that, Section 394, Cr.P.C. does not govern the case of an appeal by special leave before the Apex Court.

7. After elaborate discussions of the provisions of Cr.P.C. relating to Sections 394, 431, 411A(2) and 417, the Court came to the conclusion that appeals, preferred against the acquittal of the accused, would finally abate on the death of the accused. The above legal position had been adopted, relying on the principle that the dead persons are beyond the process of human Tribunal and as had been recognised in the limb of Section 431, Cr.P.C. that appeals against acquittals finally abate on the death of the accused.

8. On analysis, it could