Karnataka High Court
Mrs Nagaveni W/O Sanjeev Naik vs Sooraj Finanace Limited on 8 August, 2023
Bench: M.Nagaprasannapresided Bymnpj
-1-
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 8TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 100318 OF 2023 (482)
BETWEEN:
MRS. NAGAVENI W/O SANJEEV NAIK,
AGE. 36 YEARS, OCC. SERVICE,
C/O. BANK OF BARODA,
R/AT. BAZAAR ROAD ,HONAVAR,
UTTARA KANNADA DIST.-581334.
... PETITIONER
(BY SRI. SURESH S BHAT, ADVOCATE)
AND:
SOORAJ FINANACE LIMITED,
R/BY ITS MANAGER,
ARAVIND B. MAHALE, PRORIETOR,
VISHAL A/ABOUT MAJOR, R/AT MAHALE COMPLEX,
UTTARA KANNADA DIST.-581334.
NINGAPPA ... RESPONDENT
PATTIHAL (RESPONDNET SERVED)
Digitally signed by
VISHAL NINGAPPA THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C.
PATTIHAL SEEKING TO QUASH THE ENTIRE PROCEEDING IN C.C.NO. 915/2020
Date: 2023.08.11 (ARISING OUT OF P.C.NO. 308/2020) PENDING ON THE FILE OF PRL.
11:21:34 +0530
CIVIL JUDGE AND J.M.F.C. HONAVAR, FOR AN OFFENCES
PUNISHABLE U/EC. 138 OF N.I.ACT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
-2-
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
ORDER
The petitioner is before this Court calling in question
the proceedings in C.C. No.915/2020 for the offence
punishable under Section 138 of the Negotiable
Instruments Act.
2. The facts in brief, germane, are as follows:
The husband of the petitioner by name Sanjeev Naik
is said to have entered into a transaction with the
complainant. In furtherance of the said transaction, is said
to have issued certain cheques which on being presented
are dishonoured. The dishonouring of the cheques leads
the complainant to the concerned Court invoking under
Section 200 of Cr.P.C. for offence punishable under
Section 138 of the Negotiable Instruments Act. Even prior
to registration of the crime, the signatory to the cheque,
the husband of the petitioner dies. The proceedings are
taken up against the wife for an act committed by the
husband. The issue whether the wife could be proceeded
against for an act of the husband particularly for an
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
offence under Section 138 of the Negotiable Instruments
Act need not detain this Court for long or delve deep into
the matter.
3. The Co-ordinate Bench of this Court in a
judgment in the case of G.Varadaraju vs. Union of
India and others reported in (2022) 4 AKR 4,
considering the very issue has held as follows:
"3. BRIEF FACTS OF THE CASE:
(a) Petitioner was the complainant in a Cheque
Bounce case in C.C.No.13156/2016 for an offence
punishable u/s 138 of the Negotiable Instruments
Act, 1881. After the trial, the same came to be
dismissed by the learned XIX ACMM Court at
Bangalore vide acquittal order dated 2.8.2017.
Petitioner had filed Criminal Appeal No.1453/2017
against the said order. A Co- ordinate Bench of this
Court disposed off the said appeal as having abated,
the respondent-accused having died pendente lite.
(b) Petitioner submits that the provisions of section
394 of Cr.P.C. which provide for abatement of
criminal appeals on the death of accused, firstly, do
not apply to the Cheque Bounce cases which are
governed by the Negotiable Instruments Act, 1881
(for short 'NI Act' hereafterwards) which is as a
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
complete Code in itself; secondly, if the said
provisions are held to be applicable, the same are
liable to be voided on the ground of
being discriminatory & arbitrary. Petitioner argues
that to the extent the Parliament has not enacted an
appropriate provision for continuing the criminal
proceedings in general and criminal appeals in
particular, despite the death of accused, who has left
the persons representing his estate, Court should
step in and provide a remedy to the aggrieved.
4. Having heard the petitioner-party-in-person
and the learned advocates appearing for the
respondents, this Court declines indulgence in the
matter for the following reasons:
(a) The grievance of the petitioner is essentially
against the provisions of section 394 of Cr.P.C. which
cause the final abatement of criminal proceedings on
the death of accused, subject to certain exceptions
into which his case does not fit. Therefore, for ease
of understanding, the text of said section is
reproduced:
"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
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
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."
This Court hastens to add that a pari materia
provision had been there even in the Code of
Criminal Procedure, 1898, which had the following
text:
"431. Every appeal under Section 411-A, sub-
section (2), or Section 417 shall finally abate on the
death of the accused, and every other appeal under
this Chapter (except an appeal from a sentence of
fine) shall finally abate on the death of the
appellant."
(b) The focal point of all actions at criminal law is the
person offending so that as long as he is alive, he
avails for trial & punishment, if found guilty.
Ordinarily, this punishment concerns life, liberty or
status of the convict. Legislature if it chooses, may
provide for levy of fine or forfeiture of property of the
deceased, is beside the point. The proceedings for
criminal prosecution of offenders involve personal
elements such as mens rea which pertain to the
domain of mind; if commission of offence is proved,
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
the person of the offender as such, is required for
undergoing the punishment for purging the guilt.
Therefore, ordinarily, the criminal proceedings abate
on the death of accused. On the death of the
complainant, the legal heirs of the deceased
complainant can move an application under section
302 of the 1973 Code to prosecute the cheque
bounce case vide CHAND DEVI DAGA v. MANJU
K.HUMATANI1, does not come to the aid of the
petitioner inasmuch as, the prosecution is of the
offender and therefore, it can continue despite the
death of the complainant.
(c) Legal systems in most civilized jurisdictions
operate with a premise that personality of an
individual Criminal Appeal No. 1860 of 2017 disposed
off on 03.11.2017 begins with birth and ends with
death. In certain systems, personality may be
assumed even for a 'child in the womb', is not much
relevant. "If birth is necessary to create rights, so
death in general ends rights. In English Law, to libel
the dead is not an offence... The dead have no rights
and can suffer no wrongs..." writes G.W.Paton22. [In
Roman law, an heir could sue for injuria if an insult
was offered to the body of deceased at the funeral
and similarly, an action for injuria lied if the statue of
one's deceased father was stoned]. It is relevant to
advert to the observations of Hon'ble Justice
Hidayatullah:
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
"...One would expect that an appeal of this character
would normally abate on the death of the appellant
because a criminal prosecution is concerned primarily
with the punishment of an offender and not with the
trial of an abstract issue about the truth or falsity of
a prosecution case. The maxim actio personalis
moritur cum persona is often invoked in this
behalf...'.
(d) It is pertinent to refer to a decision of US
Supreme Court in DURHAM vs. UNITED STATES4
which recognizes the doctrine of abatement ab initio
on the death of accused or convict pendente criminal
proceedings including appeals. The Court observed
as under:
"The status of abatement caused by death on direct
review has recently been discussed by the Court of
Appeals for the Eighth Circuit in Crooker v. United
States, 325 F.2d 318. In reviewing the cases, that
court concluded that the lower federal courts were
unanimous on the rule to be applied: death pending
direct review of a criminal conviction abates not only
the appeal, but also all proceedings had in the
prosecution from its inception."
Similarly, the Supreme Court of Queensland in R vs.
CHARDO5 at paragraph 13 observed as under:
"13. The provisions concerning appeals against
sentence seem consistent with the same conclusion.
Upon the death of an appellant who was sentenced
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
to imprisonment (as in this case), the statutory
remedy of quashing the sentence and passing a
different sentence in substitution therefor would be
meaningless; the right of appeal against a sentence
of imprisonment and the Court's 401 U.S. 481
(1971) (2022) QCA 277 power to make orders in
such a case could not survive the appellant's death."
Thus, the provisions of law such as section 394 of
Code of Criminal Procedure, 1973 providing for
abatement of proceedings are universal and time
tested. The policy of the State as enacted in statutes
which provide for the final abatement of appeals on
the death of accused are animated with legislative
wisdom & logic. It is a matter of pure legislative
policy that death of the accused should put an end to
criminal proceedings. Therefore, the said provision
cannot be voided.
(e) The second contention that the impugned
provisions are discriminatory inasmuch as, the
abatement of appeal happens in select
circumstances, is again bit difficult to countenance.
As already observed above, it is a matter of
legislative policy that in certain circumstances, the
criminal proceeding should abate on the death of the
accused. In what circumstances, abatement should
happen, is left to the legislative wisdom gained
through the experience of ages. It is not that in the
recent past, such a provision has been enacted and
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
to a scrupulous complainant it is proving to be a bolt
from the blue. The argument that appeal against
conviction and sentence of death or of imprisonment,
does not abate if the near relatives obtain leave to
continue the same and therefore, similar facility not
being provided for, there is discrimination
offending Article 14 of the Constitution, is too
farfetched an argument. A conviction resulting in the
sentence of death or imprisonment stands on a
different footing and such cases constitute a separate
class from the rest, in the view of law maker. That
per se does not render the law falling foul of the
equality Clause. It is pertinent to refer to an English
decision in R vs. ROWE6: A prisoner who was
convicted and sentenced to a term of imprisonment
died during the pendency of appeal. His widow
applied for leave to continue the appeal arguing that
she had an interest being the widow of an honest
man and not of a man who had been convicted and
that [1955] 1 Q.B. 573 husband's conviction would
affect her chances of employment and prejudice her
position among her friends and relatives. A Three
Judge Bench Court of Criminal Appeal declined leave
holding that the sentimental interest of the widow in
having her deceased husband's name cleared from
stigma was insufficient. If that be the case, it is un-
understandable as to how the petitioner can find
fault with the regime of law concerned.
- 10 -
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
(f) The petitioner's Criminal Appeal No.1453/2017
having already been disposed off as having abated
on 29.03.2022, what benefit would accrue to him
should relief as sought for in this petition be granted,
remains inscrutable, as rightly contended by learned
CGC who is also justified in pointing out the defect in
the petition which has not arrayed L.Rs of the
deceased accused, against whom petitioner intends
to proceed. No explanation is offered by him as to
why the said L.Rs have not been made respondents
to the petition, though they answer the description of
proper parties in the light of decision of Apex Court
in RAZIA BEGUM Vs. SAHEBZADI ANWAR BEGUM7, if
not necessary parties to the adjudication of lis at
hands.
(g) The vehement submission of petitioner that the
provisions of 1973 Code do not apply to the trial of
cheque bounce cases and therefore, the appeal
against the acquittal entered therein, could not have
been disposed off as having abated on the death of
the accused, does not merit acceptance. Section 4 of
the Code r/w Sec. 143 of NI Act makes its provisions
applicable to the trial of offences punishable under
law other than IPC, 1862 as well. Some of the
provisions of the Code are excluded from application
does not mean other relevant provisions do not
govern the criminal proceedings under the NI Act.
- 11 -
NC: 2023:KHC-D:8577
CRL.P No. 100318 of 2023
4. In the light of the issue standing covered on all
its fours, to the afore-quoted judgment, the petition
deserves to succeed.
5. For the aforesaid reasons, the following:
ORDER
(i) Petition is allowed.
(ii) The entire proceedings in C.C. No.915/2020, on
the file of the Court of Principal Civil Judge and JMFC,
Honnavar insofar as the petitioner - accused stands
quashed.
Sd/-
JUDGE
Rsh/Ct:Bck
