Sri G V Varadaraju vs Smt B R Sudha
2022 Latest Caselaw 5653 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE K.NATARAJAN

             CRIMINAL APPEAL NO.1453 OF 2017

BETWEEN

SRI. G.V. VARADARAJU
S/O. LATE GOVINDA CHETTIAR
AGED ABOUT 84 YEARS
R/AT NO.210, 4TH CROSS
6TH BLOCK, KORAMANGALA LAYOUT
BENGALURU - 560 076.                       ... APPELLANT

(BY SRI G VARADARAJU, PARTY-IN-PERSON)

AND

SMT. B.R. SUDHA
AGED ABOUT 33 YEARS
W/O. LATE SRINIVASA REDDY
R/AT NO.753, 1ST MAIN, 1ST CROSS
ARAKERE GATE, SAMRAT LAYOUT
VINAYAKA NAGAR
BANNERGHATTA ROAD
BENGALURU - 560 076.                     ... RESPONDENT

(BY SRI G.M. ANAND, ADVOCATE)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4)
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET
ASIDE THE JUDGMENT DATED 02.08.2017 PASSED BY THE XIX
ADDITIONAL C.M.M., BENGALURU IN C.C.NO.13156/2016 -
ACQUITTING THE RESPONDENT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF N.I. ACT.
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      THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED ON 24.03.2022 AND COMING ON FOR ORDERS ON
I.A.NOS.1/2021, 2/2021, 3/2021 AND 4/2021 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING

                       JUDGMENT

The appellate-party in person has filed I.A.No.1/2021

to appoint legal representative / legal guardian to Master

Harsha who is a minor grand son of Mrs. Shanthamma.

I.A.No.2/2021 is filed for condoning the delay in bringing

the LRs of the respondent on record. I.A.No.3/2021 is filed

for setting aside the abatement of appeal in view of the

death of the accused and I.A.No.4/2021 for bringing the

LRs of the respondent-accused on record.

2. The appellant-party in person has contended

that this appeal is filed against the judgment of acquittal

passed by the trial Court in C.C.No.13156/2016 for having

acquitted the respondent-accused for the offence

punishable under Section 138 of N.I. Act for having

dishonored the cheque issued by the respondent and

complaint came to be filed against her under Section 200

of Cr.P.C. and the trial Court has committed error in

acquitting the accused and therefore, the appeal came to

be filed. But during pendency of the appeal, the

respondent-accused is said to be died. Therefore, in order

to continue the appeal, it is necessary to bring the LRs of

the accused on record and there is a delay in filing the

application, the same is also required to be condoned and

further contended that the legal heir of the respondent-

accused is a minor, therefore, his grand mother shall be

appointed as minor guardian and on the death of the

accused after the conclusion of the trial, the appeal does

not abate. Therefore, prayed for allowing the applications.

3. In support of his contention, he has relied

upon the judgments of the Hon'ble Supreme Court in the

case of Pranab Kumar Mitra vs. State of West Bengal

and another reported in AIR 1959 SC 144 and another

judgment in the case of State of Kerala vs. Narayani

Amma Kamala Devi and others reported in AIR 1962

SC 1530.

4. Having heard the arguments and on perusal of

the records, it is an admitted fact that the respondent was

an accused before the trial Court in C.C.No.13156/2016

which came to be ended in acquittal vide order dated

02.08.2017 and the complainant-appellant filed this appeal

under Section 378(4) of Cr.P.C. It is an admitted fact that

the respondent is said to be dead and as per the Police

Report dated 23.11.2021, he was expired in the month of

July 2021.

5. The appellant-party in person submits that

before reporting death of the respondent, the written

arguments was filed and therefore, appeal will not be

abated. But the contention of the appellant cannot be

acceptable for the reasons stated below as per Section

394(1) of Cr.P.C. which 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 appeal; and if leave is granted, the appeal shall not abate."

6. Though the appellant has relied upon the

judgment of the Hon'ble Supreme Court stated supra,

where the accused was convicted and while in the revision,

the accused was dead, therefore, the Supreme Court has

held that the appeal will not be abated fully and the

revision power can be exercised even after the death of

the accused and also when the revision is pending, the

High Court can examine the correctness of the conviction

and sentence and if the court finds the accused is guilty, it

can exonerate the sentence of imprisonment, but fine is

recoverable as per Section 431 of Cr.P.C. The Division

Bench of this Court in Crl.A.No.45/2015 dated 30.11.2020

has also elaborately held that the appeal abates only if the

accused is dead and appeal will not be abated, if the

complainant died during the appeal against the acquittal.

Such being the case, once the accused acquitted by the

trial court and during the appeal, if the accused-

respondent dies, the appeal filed by the complainant either

under Section 377 of Cr.P.C for enhancement of the

sentence or appeal under Section 378 of Cr.P.C. will finally

abate.

7. Admittedly, this is an appeal filed by the

appellant under 378(4) of Cr.P.C. against the acquittal of

the respondent-accused. Therefore, once the accused died

during the appeal against the acquittal, the appeal abates.

8. For the above said reasons, the appeal of the

appellant against the respondent-accused filed under

Section 378(4) of Cr.P.C. abates and the appeal will not

survive for consideration.

9. Therefore, the question of bringing the minor

LRs of the respondent, appointing the grand mother as

guardian to the minor legal heir of the respondent,

condoning the delay and setting aside the abatement is not

sustainable. Hence, the Interlocutory Applications are

liable to be dismissed.

10. Accordingly I.A.Nos.1/2021, 2/2021, 3/2021

and 4/2021 are hereby dismissed. The appeal filed under

Section 378(4) of Cr.P.C. against the acquittal of the

accused-respondent is abated.

11. Consequently, the criminal appeal is

dismissed as abated.

Sd/-

JUDGE

GBB