IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31^ST DAY OF JANUARY, 2023 BEFORE THE HON'BLE MR JUSTICE P.N.DESAI CRIMINAL APPEAL NO. 10 OF 2017 BETWEEN:

SRI.D.K.CHANDRASHEKAR S/O DODDAMANE KATAPPA AGED ABOUT 60 YEARS, CONTRACTOR

7TH CROSS, JCR EXTENSION CHITRADURGA - 577501.

…APPELLANT (BY SRI. RAHUL RAI K., ADVOCATE)

AND:

SRI.R.THIPPERUDRAIAH S/O KARKANE RUDRAIAH AGED ABOUT 55 YEARS, STONE CRUSHING WORK R/O CHITRAYYANAHATTI CHALLAKERE TOWN - 577522.

Digitally signed by …RESPONDENT NAGARATHNA M Location: HIGH COURT OF THIS CRL.A. IS FILED U/S.378(4) OF CR.P.C PRAYING TO SET KARNATAKA ASIDE THE JUDGMENT AND ORDER DATED 3.10.2016 PASSED BY THE SPL. II ADDL. DIST. AND S.J., CHITRADURGA IN CRL.A.NO.61/2015 - ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE P/U/S 138 OF N.I.ACT.

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

This appeal arises out of the judgment of acquittal passed by learned II Additional District and Sessions Judge, Chitradurga wherein by judgment dated 03.10.2016 passed in Crl.A.No.61/2015, the judgment of conviction and order of sentence passed by the Principal Civil Judge and JMFC, Chitradurga in C.C.No.1508/2007 dated 31.08.2015 was set aside and accused was acquitted.

2. The said case arises for the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘N.I. Act’ for short). It is seen that the death of respondent was reported to the Court on 12.03.2018. Then the appellant filed an application to bring proposed legal representatives of respondent accused nos.1(a)

to 1(d). Though they are served, are unrepresented.

3. Heard the learned counsel Sri. Suyog Herle, learned counsel for Sri. Rahul Rai K., regarding maintainability of appeal and continue appeal against legal representatives of respondent-accused as the respondent who was the accused was acquitted by the Sessions Judge.

4. In order to appreciate the contention it is useful to refer Section 394 of Cr.P.C. It reads as under:

"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 appea; and if leave is granted, the appeal shall not abate."

Therefore, in view of Section 394 of Cr.P.C. the appeal abates, if accused dies during the pendency of proceedings, against him.

5. The Coordinate Bench of this Court has passed a judgment in Crl.A.No.1453/2017 dated 29.03.2022 has discussed the effect of death of respondent in appeal who was accused. Learned Single Judge also referred to decision of Division Bench of this Court in Crl.A.No.45/2015 dated

30.11.2020 wherein elaborately this aspect is discussed and held that the appeal abates if the accused is dead and appeal will not abate if the complainant died during appeal against acquittal of the accused. Therefore, in view of provision of Section 394, if the accused dies the appeal filed under Section 377 of Cr.P.C. for enhancement of sentence appeal under Section 378 finally abates. Accordingly, the said criminal appeal was dismissed as abated.

6. The appellant in that case had challenged the constitutional validity of Section. 378 (4) read with 394(1) of Cr.P.C. by filing a writ petition before this Court. The Coordinate Bench of this Court with reference to the decisions of Hon’ble Supreme Court of Queens Land and also American judgments and provisions of Cr.P.C. in Writ petition No.13145 of 2022 in the case of G. Varadaraju Vs. Union of India and others held that Section 378(4) of the Cr.P.C. read with Section 143 of NI Act makes its pr