CRL.A.No.1177 of 2005

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 12TH DAY OF JUNE 2020 / 22ND JYAISHTA, 1942** ## **CRL.A.No.1177 OF 2005** **AGAINST THE JUDGMENT IN CC 369/2003 DATED 30-04-2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM** **AGAINST THE ORDER IN CRL.L.P.NO.413/2005 DATED 11-07-2005 OF HIGH COURT OF KERALA** ## **APPELLANT/COMPLAINANT:** **MADHU S/O.RAVEENDRANATH ELANGALLOOR VEEDU, MUTHUKULAM THEKKUM MURI, MUTHUKULAM VILLAGE.** **BY ADV. SRI.R.REJI** ## **RESPONDENT/STATE AND ACCUSED:** - **1 STATE OF KERALA REPRSENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 D.PADMAJAN PROPRIETOR, M/S.LATHIKA CASHEW FACTORY,, KALLUMTHAZHAM, KILIKOLLOOR FROM THAZHATHU GREEN HOUSE, BORDER OF KALLUMTHAZHAM POST OFFICE, KILIKOLLOOR.** ## **SR.PUBLLIC PROSECUTOR, SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1177/2005 2 **'C.R.'** ## **JUDGMENT** **Dated this the 12th day of June 2020** The above appeal is filed against the judgment dated 30.4.2005 in C.C.No.369 of 2003 on the file of the Judicial First Class Magistrate Court, Kayamkulam. The appellant is the complainant before the lower Court. The appellant filed the above case against the second respondent herein for prosecuting him under Section 138 of the Negotiable Instruments Act. This Court issued notice to the second respondent on 22.7.2005 through the Circle Inspector of Police, Kollam East Police Station. Notice was not served, and consequently, when the notice was repeated on 30.7.2013, the Circle Inspector filed a report stating that the second respondent died on 21.12.2008. The death certificate is also produced. 2. After that, the appellant filed Crl.M.A.No.7706 of Crl.A.No.1177/2005 3 2013 to implead additional third and fourth respondents, who are the legal heirs of the deceased second respondent in this appeal. The petition was filed on 23.10.2013, and notice was issued by this Court to additional respondents 3 and 4 as per the order dated 23.10.2013. The notice issued to respondents 3 and 4 has not returned yet, and hence this appeal is posted for orders before this Court in the defect list. 3. The point to be decided is whether the legal heirs of the accused can be impleaded in an appeal against acquittal filed by the complainant. 4. It is fundamental in criminal jurisprudence that there cannot be any prosecution in a criminal case against a dead person through his legal heirs. If an accused died pending trial, the case against him will be abated unless the punishing statute prescribes otherwise. If the accused died after he is convicted and sentenced by a criminal court, and an appeal is pending against the conviction and sentence, Section 395(2) Cr.P.C. is applicable. But, if an accused died when an appeal under Sections 377 and 378 Cr.P.C. is Crl.A.No.1177/2005 4 pending, that appeal will abate as per Section 395(1) Cr.P.C. There is no provision in the Criminal Procedure Code, allowing to implead the legal heirs of the deceased accused, in an appeal under Sections 377 or 378 Cr.P.C. This is clear from Section 394 Cr.P.C., which is extracted hereunder:- ## _“_ _**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 appeal; and if leave is granted, the appeal shall not abate._ _Explanation : In this Section, "near relative" means a parent, spouse, lineal descendant, brother or sister.”_ Section 394(1) says that every appeal under Section 377 or Section 378 Cr.P.C. shall finally abate on the death of the Crl.A.No.1177/2005 5 accused. Hence, it is clear that there is no provision in Section 394 Cr.P.C. to implead the legal heirs or near relatives of an accused in an appeal under Section 377 or Section 378 Cr.P.C. Of course, in an appeal from a sentence of fine, there is no abatement on the death of the appellant. Similarly if the appellant died in an appeal filed against the imprisonment and fine imposed on him, the imprisonment alone will abate. Proviso to Section 394(2) says that, where the appeal is against a conviction and sentence of death or imprisonment, and the appellant dies during the pendency of the appeal, any of his near relatives may, within 30 days of the death of the appellant, apply to the appellate Court for leave to continue appeal; and if leave is granted, the appeal shall not abate. Therefore, the question of impleading near relatives of the appellant in a criminal appeal will arise only in situations mentioned in Section 394 Cr.P.C. There is no provision in the Criminal Procedure Code for allowing an application to implead legal heirs of the deceased accused in an appeal filed under Section 377 or Section 378 Cr.P.C. Crl.A.No.1177/2005 6 5. Moreover, the legal heir or near relative of a deceased accused cannot be impleaded in an appeal under Section 377 or Section 378 Cr.P.C. for the simple reason that, they have not faced any trial. An appeal against acquittal will lie under Section 377 and Section 378 Cr.P.C., only against an acquitted accused and not against the legal heirs/near relatives of an acquitted accused. 6. Moreover, when a trial in a criminal case is going on and if the accused died pending trial, the legal heirs or near relatives cannot be prosecuted unless the statute prescribes so. The present case is a prosecution under Section 138 of the Negotiable Instruments Act. 7. Section 138 of the Negotiable Instruments Act is extracted herein below : ## _138._ _**Dishonour of cheque for**_ _**insufficiency etc., of funds in the account** :- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the Bank_ Crl.A.No.1177/2005 7 _unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that Bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both :_ _Provided that nothing contained in this section shall apply unless :-_ _(a) the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;_ _(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid ; and_ _(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice._ Crl.A.No.1177/2005 8 _Explanation :- For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. [Emphasis supplied.]”_ A reading of the above section shows that only the person who drawn the cheque is liable under Section 138 of the Negotiable Instruments Act. In _**Smt.Kamala and others v. C.P.Bhardwaj (2007 KHC 4214)**_ , the Punjab and Haryana High Court considered the following point. _“4. Learned counsel for the petitioners contends that no complaint under Section 138 of the Act could have been filed against the petitioners, who are the legal heirs of deceased Brahm Parkash. He submits that from the plain reading of Section 138 of the Act, it is clear that no proceeding alleging offence under Section 138 of the Act can be filed against the legal heirs. In support of his contention, learned counsel has relied upon the following judgments of various High Courts :_ _(i) Bhupinder Lima v. State of A.P., 1999 (4) All.MR (Journal) 20 Andhra Pradesh)_ - _(ii) Draupadi Devi v. State of Rajasthan, 2000(4) Recent Criminal Cases 257, (Rajasthan),_ - _(iii) Girja v. K.Vinay, 2004(1) Recent Criminal Cases 458 (Ker.)_ - _(iv) Savita H.Sorle v. Rajesh Damidar Sarode 2006(3)Recent Criminal Reports 216_ Crl.A.No.1177/2005 9 ## _(Bombay)”_ _5. The Karnataka High Court, in Girja v. K.Vinay (supra), has observed as under :_ _….. on careful perusal of the relevant statutory provisions of law, it is clear that the intention of the legislature was not to make the provisions for prosecuting the legal heirs of the drawer of a cheque, in the event of dishonour under the provisions of Negotiable Instruments Act. It is needless to say that the provisions of the Negotiable Instruments Act are a self contained enactment and wherever there is lacking, the provisions of the Code of Criminal Procedure will have to be pressed into service. As stated earlier, there are absolutely no statutory provisions made under the Negotiable Instruments Act to cover the situation like this. Under the provisions of Section 394 of the Cr.P.C., it is seen that the said section deals with the abatement, of appeals filed under Sections 377 or 378 of the Cr.P.C. This provision cannot be pressed into service for the reason that the trial court or this Court has not been dealing with an appeal under the said provisions. It is also necessary to mention that the provisions of Section 256 of the C.P.C. deal with the situation that arises after the death of the complainant. In the case in hand, the drawer of the cheque, the accused in a proceeding of this nature, had died even earlier to the presentation of the complaint. Such being the case, the provisions of_ Crl.A.No.1177/2005 10 _Section 256 of the Cr.P.C. also cannot come to the aid of the complainant. From this aspect, it is clear that the statute law in this regard is totally silent to meet the situation. When this be the intention of the Legislature, the Court of law will have to interpret the law, keeping in mind, the golden rules of interpretation and the Courts should always interpret the law keeping in view the letter and spirit of law and such an interpretation should advance the purpose of legislation. It is needless to say that if the Courts do not resort to this exercise, the result thereon will not only be irregular and also illegal, so as to vitiate the entire proceedings._ _6. Learned counsel for the respondent could not controvert the aforesaid factual and legal position. Thus, in view of the aforesaid admitted facts and legal position, I am of the opinion that filing of the complaint by the complainant as well as the process issued by the Magistrate against the petitioners is nothing but an abuse of the process of the Court. On the plain reading of Section 138 of the Act, it is clear that the proceedings in the complaint alleging offence under Section 138 cannot be initiated against legal heirs of the person, who had issued the cheque."_ 8. I respectfully agree with the principles laid down by the Punjab and Haryana High Court in _Smt.Kamla_ 's case (supra). On a plain reading of Section 138 of the Negotiable Crl.A.No.1177/2005 11 Instruments Act, it is clear that a complaint alleging offence under Section 138 of the Negotiable Instruments Act cannot be initiated against legal heirs of a person who had issued the cheque. Similarly, even during trial, legal heirs or near relatives cannot be impleaded as accused in criminal case, when the accused is died unless the statute prescribes so. Moreover, under Section 394(1) of the Criminal Procedure Code, it is clear that, every appeal under Section 377 or Section 378 Cr.P.C. shall finally abate on the death of the accused. Legal heirs of the deceased accused can't be impleaded in an appeal filed under Sections 377 or 378 Cr.P.C. Hence Crl.M.A.No.7706 of 2013 in Crl.Appeal No.1177 of 2005 is not maintainable, and therefore, the same is dismissed. Consequently, this appeal is dismissed as abated. Sd/- ## **P.V.KUNHIKRISHNAN JUDGE** csl