IMPORTANT POINTS
The provisions of Section 256 of the C.P.C. deal with the situation that arises after the death of the complainant-The drawer of the cheque, the accused in a proceeding of this nature, had died even earlier to the presentation of the complaint-The provisions of Section 256 of the Cr.P.C. also cannot come to the aid of the complainant.

JUDGMENT :

The above appeal is filed against the judgment dated 30.4.2005 in C.C.No.369 of 2003 on the file of the Judicial First Class Magistrate Court, Kayamkulam. The appellant is the complainant before the lower Court. The appellant filed the above case against the second respondent herein for prosecuting him under Section 138 of the Negotiable Instruments Act. This Court issued notice to the second respondent on 22.7.2005 through the Circle Inspector of Police, Kollam East Police Station. Notice was not served, and consequently, when the notice was repeated on 30.7.2013, the Circle Inspector filed a report stating that the second respondent died on 21.12.2008. The death certificate is also produced.

2. After that, the appellant filed Crl.M.A.No.7706 of 2013 to implead additional third and fourth respondents, who are the legal heirs of the deceased second respondent in this appeal. The petition was filed on 23.10.2013, and notice was issued by this Court to additional respondents 3 and 4 as per the order dated 23.10.2013. The notice issued to respondents 3 and 4 has not returned yet, and hence this appeal is posted for orders before this Court in the defect list.

3. The point to be decided is whether the legal heirs of the accused can be impleaded in an appeal against acquittal filed by the complainant.

4. It is fundamental in criminal jurisprudence that there cannot be any prosecution in a criminal case against a dead person through his legal heirs. If an accused died pending trial, the case against him will be abated unless the punishing statute prescribes otherwise. If the accused died after he is convicted and sentenced by a criminal court, and an appeal is pending against the conviction and sentence, Section 395(2) Cr.P.C. is applicable. But, if an accused died when an appeal under Sections 377 and 378 Cr.P.C. is pending, that appeal will abate as per Section 395(1) Cr.P.C. There is no provision in the Criminal Procedure Code, allowing to implead the legal heirs of the deceased accused, in an appeal under Sections 377 or 378 Cr.P.C. This is clear from Section 394 Cr.P.C., which is extracted hereunder:-

“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 : In this Section, "near relative" means a parent, spouse, lineal descendant, brother or sister.”

Section 394(1) says that every appeal under Section 377 or Section 378 Cr.P.C. shall finally abate on the death of the accused. Hence, it is clear that there is no provision in Section 394 Cr.P.C. to implead the legal heirs or near relatives of an accused in an appeal under Section 377 or Section 378 Cr.P.C. Of course, in an appeal from a sentence of fine, there is no abatement on the death of the appellant. Similarly if the appellant died in an appeal filed against the imprisonment and fine imposed on him, the imprisonment alone will abate. Proviso to Section 394(2) says that, where the appeal is against a conviction and sentence of death or imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within 30 days of the death of the appellant, apply to the appellate Court for leave to continue appeal; and if leave is granted, the appeal shall not abate. Therefore, the question of impleading near relatives of the appellant in a criminal appeal will arise only in situations mentioned in Section 394 Cr.P.C. There is no provision in the Criminal Procedure Code for allowing an