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.

JUDGMENT :

K. BABU, J.

1. 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:

1) The trial Court convicted the original appellant and sentenced him to undergo simple imprisonment till the rising of the Court and pay a fine of Rs.10,00,000/- under Section 138 of the N.I. Act.

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:

a) As the trial Court directed to pay the fine amount, if realised, to the complainant as compensation, there is no component of the fine.

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:-

“On a bare reading of section 394 of Cr.P.C. no appeal shall abate, if it involves a sentence of fine even on the death of the appellant. The principle is that on the death of an appellant, the appeal abates only