An appeal under criminal law abates upon the death of the accused unless a near relative applies to continue it, as per statutory provisions.

ORDER

Heard counsel for petitioners, respondent No.2 and the Public Prosecutor who took notice for respondent No.1.

2. This revision at the instance of the legal representatives of the accused is in challenge of the dismissal of Crl.Appeal in confirmation of the conviction, sentence and direction for payment of compensation in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, “the Act”). Respondent No.2 filed a complaint alleging that accused borrowed Rs.48,000/- from him on 1.5.2000, he issued a cheque for the discharge of that liability but that cheque was dishonoured for insufficiency of funds and inspite of giving intimation to the accused as to the dishonour and demanding payment, he did not pay the amount. Learned magistrate found the accused guilty, convicted and sentenced him to undergo simple imprisonment for six months. He was directed to pay Rs.60,000/- as compensation to respondent No.2. Accused preferred an appeal before the Sessions Court, Thalassery. The appeal (Crl.Appeal No.9 of 2003) was heard by learned Additional Sessions Judge, Fast Track (Adhoc)-I, Thalassery. It is seen that counsel for appellant/accused was not available in the appellate court but learned Additional Sessions Judge after hearing the counsel for respondent No.2 and perusing the records dismissed the appeal in confirmation of the conviction and sentence.

3. It is submitted by counsel on both sides that the accused died during pendency of the Crl. Appeal but that fact was not brought to the notice of learned Additional Sessions Judge. Counsel for respondent No.2 says that his counterpart in the appellate court was not informed about the death of appellant/accused.

4. This being an appeal from a conviction and sentence of imprisonment it should abate on the death of appellant/accused under Section 394 of the Code of Criminal Procedure (for short, “the Code”). The proviso to that Section says that any near relative of the appellant 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. In this case, none of the near relatives of the appellant had sought permission of the appellate court to continue the appeal. The appeal therefore should stand abated. In the circumstances of the case, the proper course open is to set aside the dismissal of the appeal and remand the case to the first appellate court for disposal with opportunity to the petitioners to seek permission of the appellate court as provided under Section 394 of the Code to continue the appeal. If any such application is filed, learned Additional Sessions Judge shall dispose of that application as provided under law.

Resultantly, this revision petition is allowed. Judgment of the learned Additional Sessions Judge, Fast Track (Adhoc)-I, Thalassery in Crl.Appeal No.9 of 2003 is set aside and the appeal is remitted to that court for fresh disposal in the light of the observation made above. Parties shall appear in that court on 30.6.2009. Revenue recovery proceedings if any for recovery of compensation from the legal representatives of deceased appellant/accused will stand in abeyance till 30.6.2009.

Crl.M.A.No.5145 of 2009 will stand dismissed.

THOMAS P.JOSEPH, Judge.

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