Legal heirs of a convicted individual can be held liable for compensation awarded, even after the original accused's appeal is abated, under Sections 421 and 431 of the Cr.P.C.

JUDGMENT :

HASMUKH D. SUTHAR, J.

1. By way of present petition under Articles 14, 21, 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed for the following reliefs:

“(b) Your Lordship may be pleased to issue writ of certiorari by quashing and setting aside the orders passed in Criminal Revision Application No. 164 of 2022 passed by the learned Sessions Judge, Bhavnagar vide order dated 17.10.2023 and thereby rejecting the application and confirming the order passed on 21.10.2022 in Criminal Misc. Application No. 218 of 2015 by the learned 4th Additional Chief Judicial Magistrate, Bhavnagar at Annexure-A Colly as well as notice dated 17.11.2023 at Annexure-B in the interest of justice.”

2. It is the case of the petitioners that the parents of the petitioners were original accused in Criminal Case No. 2629/2008 filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) filed by respondent Nos.2 and 3 herein-original complainants before the Court of learned 4th Additional Chief Judicial Magistrate, Bhavnagar on 02.05.2008. After recording the evidence, the learned Magistrate on 19.05.2014 has been pleased to convict the parents of the petitioners and sentenced them to undergo simple imprisonment for a 9 months with fine of Rs.10,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of one month and has further ordered the parents of the petitioners-original accused to pay compensation under Section 357 (3) of the Cr.P.C. of Rs.3,15,000/- to the respondent Nos. 2 and 3 herein-original complainants and in default of payment of compensation, he has to further undergo simple imprisonment of 4 months.

2.1 Being aggrieved and dissatisfied with the said judgment of conviction and sentence, father of the petitioners-original accused filed Criminal Appeal No. 49 of 2014 before the Court of learned Sessions Judge, Bhavnagar however, during the pendency of the appeal, original accused-father of petitioners viz. Babulal Kuberdas Vaja expired on 10.03.2015 and in absence of any application under Section 394 of the Cr.P.C. from the legal heirs of the deceased accused to continue the appeal, the said criminal appeal was abated by the learned Sessions Judge on 27.03.2015.

2.2 It is pertinent to note that during the pendency of the Criminal Case No. 2629/2008, mother of present petitioners i.e. original accused No. 2 viz. Neelaben Babulal Vaja, who also expired on 15.02.2010 and the complaint against her also stood abated and her name was deleted by passing an order below Exh.6 by the learned JMFC.

2.3 As the original accused expired and appeal was abated, in absence of any application under Section 394 of the Cr.P.C. to continue an appeal or any challenge given to the order of abatement dated 27.03.2015 and hence, the conviction order passed by the learned Magistrate convicting the original accused i.e. parents of petitioners has attained finality. Hence, since appeal was abated-original complainants preferred Criminal Misc. Application No. 218 of 2015 under Section 421 read with Section 431 of the Cr.P.C. against the legal heirs of the original accused i.e. present petitioners. As the petitioners failed to do so within the prescribed time limit and appeal was abated. The complainants have filed the proceedings under Section 357 (3) of the Cr.P.C. to recover the amount of compensation as awarded by the learned trial Court from the properties of the deceased accused for which the respondent Nos.2 and 3 had initiated proceedings to attach the property of the deceased accused.

2.4 Learned Magistrate after considering the application filed under Section 42