ORDER :

1. The short question involved in the instant acquittal appeal is with regard to the right of the appellant/complainant in proceeding with the appeal challenging the order of acquittal of the respondent/accused under Section 138 of the Negotiable Instruments Act, 1881 after the death of the accused during the pendency of the appeal.

2. The aforesaid question arises in the following factual backdrop :-

2.1. That, the appellant/complainant filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short, “the NI Act”) against the respondent/accused for dishonor of cheque, but ultimately, learned Judicial Magistrate, by its judgment dated 08/01/2019 (Annexure A/1) dismissed his complaint finding no merit and acquitted the respondent/accused from the charges under Section 138 of the NI Act.

2.2. Feeling aggrieved and dissatisfied with the judgment of acquittal, the appellant/complainant had preferred the instant acquittal appeal before this Court on 30/09/2019, but during the pendency of the appeal, the respondent/accused died on 08/11/2020 and thereafter, on 02/01/2021, the appellant/complainant has moved an application for bringing the legal representatives of deceased respondent/accused on record which has seriously been opposed by the legal representatives of the respondent/accused and they have suo moto appeared, without any order of substitution, by filing an application under Section 394 of CrPC on 04/01/2021 stating that the instant appeal has abated as a whole and the substitution application cannot be entertained.

3. Heard on I.A. No. 1/2021, application under Section 394 of CrPC for abatement of appeal filed by the legal representatives of the respondent/accused and I.A. No. 2/2021, application for bringing the legal representatives of deceased respondent/accused on record filed by the appellant/complainant.

4. Mr. Jitendra Gupta, learned counsel for the appellant/complainant, would submit that though the respondent/accused has died during the pendency of the instant acquittal appeal, yet the his legal representatives have to be substituted and the appeal has not abated, as such, I.A. No. 2/2021, application for substitution of legal representatives of the respondent/accused be allowed.

5. Per contra, Mr. Shikhar Bakhtiyar, learned counsel for the respondent/accused (now, his LRs.), would submit that the instant appeal has abated by virtue of the provisions contained under Section 394(1) of CrPC, as such, I.A. No. 2/2021, application for substitution of legal representatives of respondent/accused deserves to be rejected by holding that the instant acquittal appeal has already abated.

6. I have heard learned counsel for the parties on application for substitution as well as application for abatement, considered their rival submissions made herein-above and went through the record with utmost circumspection.

7. It is not in dispute that the sole respondent/accused Shiv Kumar Vaishnav has died during the pendency of the instant appeal and the question for consideration would be, whether the appellant/complainant is entitled to pursue the appeal further by substituting the legal representatives of the deceased respondent/accused ?

8. In order to consider the plea raised at the Bar, it would be appropriate to notice the provisions contained under Section 394 of CrPC, which states 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 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. I