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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Dhanya Sajith, W/o. Late Sajith S. Menon – Petitioner
Versus
M.R. Binoy Mathew, S/o. Mathew and Anr. – Respondents
OP(CRL.) No. 379 Of 2024
Decided On : 31-07-2024
ABATEMENT - CRIMINAL APPEAL - Section 138 of the Negotiable Instruments Act, Section 394 of the Code of Criminal Procedure, Section 53 of the Indian Penal Code, Section 357 of the Code of Criminal Procedure - The court discussed the provisions of Section 394 of the Cr.P.C., which states that an appeal does not abate on the death of the appellant if it involves a sentence of fine. The court emphasized that the nature of the sentence, whether it is imprisonment or fine, determines the abatement of the appeal. The interpretation of these sections influenced the court's decision to restore the appeal, as the original sentence was composite, involving both fine and imprisonment.
Fact of the Case:
The petitioner, the wife of the deceased appellant, challenged the Sessions Court's order that dismissed her application to continue the appeal after her husband's death. The original appellant was convicted under Section 138 of the Negotiable Instruments Act and sentenced to imprisonment and a fine. The Sessions Court held that the appeal abated upon the appellant's death.
Finding of the Court:
The court found that the Sessions Court erred in concluding that the appeal abated. It clarified that under Section 394 of the Cr.P.C., an appeal does not abate if it involves a sentence of fine, and the original sentence was composite, thus allowing the appeal to continue.
Issues: Whether the appeal abated upon the death of the original appellant and whether the petitioner provided sufficient explanation for the delay in filing the application to continue the appeal.
Ratio Decidendi: The court held that the appeal does not abate on the death of the appellant if it involves a sentence of fine, as established in Ramesan (dead) Through Lr.Girija A. v. State of Kerala. The court also found that the petitioner provided sufficient explanation for the delay in filing her application.
Final Decision: The court allowed the Original Petition, restored the appeal to file, and directed the Sessions Judge to proceed with the appeal in accordance with the principles established by the Supreme Court.
JUDGMENT :
K. Babu, J.
The challenge in this Original Petition is to the order dated 19.12.2023 in Crl.M.P.No.3281/2023 in Crl.A.No.12/2023 on the file of the Sessions Court, Thodupuzha.
2. The petitioner is the wife of the appellant. The original appellant was the accused in S.T.No.1183 of 2016 on the file of the Judicial First Class Magistrate Court, Adimaly. He was convicted by the trial Court under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment till rising of the Court and pay a fine of Rs.10,00,000/-. The learned Magistrate also directed that if the fine amount is realised, it shall be paid to the complainant as compensation under Section 357 of the Code of Criminal Procedure.
3. The original appellant challenged the judgment of conviction and sentence before the Sessions Court, Thodupuzha. The original appellant died on 11.10.2023. His wife filed an application under the proviso to Section 394 of the Cr.P.C. seeking leave to continue the appeal. The Sessions Judge dismissed the petition holding that the appeal had abated with the death of the original appellant.
4. I have heard the learned counsel for the petitioner, the learned counsel appearing for the party respondent and the learned Public Prosecutor.
5. The learned counsel for the petitioner submitted that the order of the Sessions Court recording that the appeal stood abated is against the statutory mandate of Section 394 of the Cr.P.C. The learned counsel submitted that even if the near relatives of the original appellant did not come forward, and requested to continue the appeal, the Court below was bound to proceed with the appeal against the sentence of fine.
6. The learned counsel for the party respondent submitted that the petitioner had not explained the delay in making the application under the proviso to Section 394 Cr.P.C..
7. The learned Public Prosecutor submitted that the Sessions Judge committed illegality while recording that the appeal had abated when the challenge was on a composite sentence of fine and imprisonment.
8. The learned counsel for the petitioner relied on Ramesan (dead) Through Lr.Girija A. v. State of Kerala [(2020) 3 SCC 45]. in support of his contention. The learned counsel for the party respondent relied on Hariprasad Chhapolia v. Union of India [(2008) 7 SCC 690].
9. The following facts are not in dispute:
2) The original appellant died on 11.10.2023.
3) The petitioner, the wife of the original appellant, filed an application under the proviso to Section 394 Cr.P.C. on 4.12.2023. 4) The trial Court had directed that if the fine amount is realised, it shall be paid to the complainant as compensation.
10. The learned Sessions Judge applied the following reasonings:
b) The petitioner has not offered any explanation for condoning the delay in filing the petition under the proviso to Section 394 Cr.P.C.
11. The learned Sessions Judge rightly understood the statutory mandate of Section 394 Cr.P.C. The learned Sessions Judge recorded the following:-
12. The Sessions Court erroneously understood the import of Section 53 IPC and Section 357 Cr.P.C.
13. The learned Sessions Judge recorded the following finding:-
An appeal does not abate upon the death of the appellant if it involves a sentence of fine, and sufficient explanation for delay in filing an application to continue the appeal can be accepted.
An appeal does not abate upon the death of an appellant when the sentence includes a fine, as established under Section 394 of the Cr.P.C.
The main legal point established is that under Section 394 of the Cr.P.C., an appeal abates if no application for continuance is made by a near relative within 30 days of the appellant's death.
The main legal point established in the judgment is that where the sentence is a composite one including fine along with imprisonment, the appeal would not abate under Section 394 of CrPC.
Legal heirs of a deceased convict in a criminal appeal may contest the conviction but are not liable for the sentence or fine imposed on the convict.
Legal representatives can continue an appeal if the appellant dies during pendency, as per Section 394(2) of Cr.P.C.
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