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.

Judgment

Mr. Pankaj Jain, J. (Oral):- Present petition filed under Section 482 of the Code of Criminal Procedure, 1973 inter-alia challenging order dated 29.01.2021 (Annexure P-1) passed by Additional District Judge, Ambala wherein a finding has been recorded that an appeal arising out of proceedings under Section 138 of the Negotiable Instruments Act will not abate despite the death of convict-Raj Kumar Handa.

2. In the complaint filed by respondent No. 2-Jugal Kishore Sobti, Raj Kumar Handa, father of petitioners No. 1 and 2 and husband of petitioner No. 3, was convicted and was sentenced to undergo simple imprisonment for a period of 1 year and was also directed to pay a compensation of Rs. 12 lakhs. Raj Kumar Handa preferred an appeal. During the pendency of appeal, the convict-Raj Handa died on 07.08.2020. After the fact of death of Raj Kumar Handa was brought to the notice of the Court, the impugned order was passed to the following effect:-

“Death report of appellant-convict Raj Kumar Handa has been placed on record which show that he expired on 07.08.2020. This is an appeal against conviction whereby appellant/convict was sentenced to undergo simple imprisonment for a period of one year and to pay compensation of Rs. 12,00,000/- for commission of offence punishable under Section 138 of Negotiable Instruments Act, 1881. Since, convict/appellant has expired during the pendency of the appeal, therefore, insofar as sentence of imprisonment is concerned that has become unworkable, but since he has also been ordered to pay compensation of Rs. 12,00,000/-, therefore, the appeal will not abate. In view of these circumstances, presence of LRs of the deceased appellant-convict on record, is very much necessary. Today, counsel for deceased appellant-convict is not available. Proxy counsel is directed to convey the main counsel to further convey to the LRs to come on record. For further proceedings, the matter is adjourned to 10.02.2021.”

3. On 26.02.2021 the application was moved by respondent No.2 for impleading LRs of Raj Kumar Handa. Vide order dated 26.02.2021 (Annexre P-3) the Appellate Court issued notice to the present petitioners, which is also challenged in the present petition, observing as under:-

“None has turned up on behalf of deceased appellant Raj Kumar Handa. However, an application has been moved by the respondent for impleading the legal heirs of deceased Raj Kumar Handa. In the interest of justice, let notice to these legal heirs of deceased Raj Kumar Handa be issued for 26.03.2021, so that they may come on the record to pursue the appeal.”

4. Assailing the impugned orders passed by the Courts below, counsel for the petitioners submits that the same is in the teeth of provision contained in Section 394 Cr.P.C. In order to support his contention, he places reliance upon the judgment of Supreme Court in the matter of M. Abbas Haji vs. T.N. Channakeshava, (2019) 9 SCC 606.

5. Counsel representing the complainant/respondent No.2 places reliance upon the provision contained under Section 394 Cr.P.C. to submit that since the order of sentence was contained in two parts i.e. conviction as well as payment of fine which was equal to the cheque amount, in the present case the same shall not abate and thus, the application (Annexure P-2) filed by complainant/respondent No. 2 was maintainable.

6. Having heard counsel for the parties and after carefully going through records of the case, this Court finds that the plea raised by counsel for the complainant/respondent is misconceived. Provision contained under Section 394(2) Cr.P.C. enable the LRs of the deceased/appellant an opportunity to contest conviction and sentence including sentence of fine. The same does not clothe the complainant with a right to move an application seeking impleadment of legal representatives. Reference can be made to observations made by the Supreme Court in M. Abbas Haji’s case (supra) wherein it has been held as under:-

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3. The legal