Dismissed

Narayanaswamy R v. Hanumantharayappa

Karnataka HC21 Oct 2022CRL.A/164/2018

Case brief

AI extract

What is this about?

In this criminal appeal under Section 378(4) Cr.P.C., the High Court of Karnataka held that an appeal by a complainant against the acquittal of an accused must abate when the accused dies before the final decision, as the appeal against acquittal cannot be continued by legal representatives.

What did the court decide?

The criminal appeal was dismissed as abated and is liable to be dismissed.

Narayanaswamy R Vs Hanumantharayappa — Cheque Dishonour | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF OCTOBER, 2022

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BEFORE

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THE HON'BLE MS.JUSTICE J.M.KHAZI

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CRIMINAL APPEAL NO.164 OF 2018

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BETWEEN:

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NARAYANASWAMY R S/O RANGADHAMAIAH AGED ABOUT 48 YEARS R/AT NAGAMMANAPALYA VILLAGE KODAGADALA POST PURAVARA HOBLI MADHUGIRI TALUK TUMAKURU DIST - 572 132

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… APPELLANT

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(BY SMT. NALINA K, ADVOCATE)

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AND:

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HANUMANTHARAYAPPA S/O SANJEEVAPPA @ SANJEEVA AGED ABOUT 66 YEARS R/O THAGGIHALLI VILLAGE PURAVARA HOBLI MADHUGIRI TALUK TUMAKURU DIST - 572 137

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...RESPONDENT

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(BY SRI. VENKATA REDDY S.K., ADVOCATE)

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THIS APPEAL IS FILED UNDER SECTION 378 (4) OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER OF ACQUITTAL DATED 17.11.2017, PASSED IN CRL.A.NO. 5012/2016, BY THE IV ADDL. DISTRICT & SESSIONS JUDGE, MADHUGIRI BY ALLOWING THIS APPEAL AND CONSEQUENTLY CONFIRM JUDGMENT OF CONVICTION AND ORDER OR SENTENCE DATED 11.07.2016, PASSED IN CC

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NO.691/2013, BY THE ADDL. CIVIL JUDGE & JMFC, MADHUGIRI, IN THE INTEREST OF JUSTICE.

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THIS CRIMINAL APPEAL HAVING BEEN HEARD AND RESERVED ON 17.10.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is by complainant against the dismissal of complaint by the Appellate Court and thereby reversing the judgment of conviction rendered by the trial Court.

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For the sake of convenience, the parties are referred to by their rank before the trial Court.

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Complainant filed a complaint under Section 200 Cr.P.C. against the accused alleging offence punishable under Section 138 of N.I.Act, contending that accused borrowed a sum of Rs.1,00,000/- and on repeated requests and demand, he issued a cheque dated 12.02.2013 and when presented for encashment it was returned with endorsement "funds insufficient" and after issuing notice, he filed complaint.

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Accused appeared and took up a defence that there was no monetary transaction between him and the

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complainant and in fact he had given a blank cheque to one Srinivasa of Byala about 8 years back and misusing the same complainant has chosen to file a false complaint.

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During trial complainant examined himself as PW-1 and Manager of the Bank as PW-2. He relied upon Ex.P1 to 5.

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However, accused did not choose to enter into the witness box, though he cross-examined both PW-1 and 2 and through PW-2 he got marked account extract as Ex.D1.

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The trial Court accepted the case of the complainant and convicted the accused and sentenced him to undergo simple imprisonment for six months and pay fine of Rs.5,000/-, in default to undergo further imprisonment for a period of one month.

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Accused challenged the same before the District and Sessions Judge, in Crl.A.No.5012/2016. The Appellate Court allowed the appeal and thereby acquitted the accused.

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Being aggrieved by the same, complainant is

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before this Court with appeal under Section 378 (4) Cr.P.C.

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Vide order dated 10.12.2021, Court notice was issued to the respondent. The same is returned with an endorsement "respondent is no more and the notice is served on his wife". The concerned police have also produced the photocopy of the death certificate.

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When the accused dies, in the normal course the appeal would be dismissed as abated. However, learned counsel for complainant submitted that for the limited purpose of proceeding against the property of the accused for recovery of fine amount, the LRs of accused are required to be brought on record and sought permission to bring the LRs of accused on record. In this regard, the learned counsel for complainant has relied upon the judgment of co-ordinate Bench of this Court in

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P.R.Anjanappa and Ors. Vs. M/s Yurej Agencies

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Pvt.Ltd and Ors¹ , wherein it is held as under:

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"Wherever, the accused is sentenced to undergo imprisonment and has preferred appeal against the conviction and sentence and during its pendency he

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1 ILR 2004 KAR 1883

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dies, there is no question of affirming his sentence as he cannot be sent to the prison. However, so far as fine is concerned, the exception provided is only because even after the death of the appellant/accused, his legal representatives, who come in possession of his assets are liable to clear the fine imposed by the court against the deceased which practically exists as pious and legal obligation. In case the legal representative or the successors of the convicted deceased appellant/accused wants to challenge the same, they are at liberty to come on record as the successors of the appellant and contest the case of not only the sentence of fine, but also the judgment of conviction so as to get the same of the accused cleared or blot of conviction cleared.

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In view of the scheme under IPC for recovery of fines by initiating fine levy proceedings especially Sections 66 to 70, in my view, even if the successors of the deceased do not contest the conviction or imposition of sentence of fine, they cannot escape the liability of paying the fine"

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Heard learned counsel for complainant and perused the record.

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It is an undisputed fact that though the accused was convicted by the trial Court, the First Appellate Court more precisely, the Additional District & Sessions Judge acquitted him. Thus, the present appeal is against acquittal of accused.

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The provision which deals with abatement of appeals is Section 394 Cr.P.C. It reads as follows:

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394. Abatement of appeals. (1) Every appeal under section 377 or section 378 shall finally abate on the death of the accused.

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(2) Every other appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant:

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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.

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A plain reading of this provision makes it evident that as a general rule all appeals abates on the death of the accused, except an appeal from a sentence of fine i.e., when the appeal is against conviction wherein fine is imposed on the accused with or without default sentence. Where the accused is imposed with sentence of imprisonment, having regard to the fact that the accused is no more and such sentence of imprisonment cannot be executed against him, the trial (if accused dies at the stage of trial) as well as appeal would abate. A proviso is appended to Sub-Section 2 of Section 394 of Cr.P.C., giving an opportunity to the near relative of accused to apply to the Appellate Court for leave to continue the appeal and if

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leave is granted, the appeal shall not abate. This proviso is incorporated to provide an opportunity to the near relatives of accused to continue the appeal to clear his name of the stigma of conviction.

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However, in case of appeal against conviction, wherein the accused is also imposed with fine, whether or not in addition to substantive sentence of imprisonment, in case he has left behind any property at the hands of his LRs, then for the limited purpose of enabling the complainant to recover the fine through his LRs in the event of he succeeding in the appeal, the LRs of accused would be brought on record.

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However, this would not be the situation where the accused is already acquitted and the appeal is against such acquittal. Based on the principle that accused is presumed to be innocent till he is convicted and having regard to the fact that he is already acquitted, the presumption of his innocence is fortified. Therefore, in case of appeal against acquittal, when the accused dies, the question of continuing the appeal against his LRs would not arise.

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P.R.Anjanappa's case referred to supra, relied

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upon by the learned counsel for complainant, was a revision filed by the accused against his conviction, wherein he was also imposed with fine. The co-ordinate Bench of this Court refused to accept the submissions made on behalf of accused that on the death of accused the appeal abates and that it cannot be proceeded against his LRs.

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However, in the present case the appeal is filed

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by the complainant challenging the acquittal of the accused. As on the date of death of the accused, he was held to be innocent. Consequently, proceedings cannot be continued against him qua his LRs to enable the complainant to prove accused to be guilty, impose punishment on him including fine and thereafter proceed to recover the same through his LRs. The wordings of Section 394 Cr.P.C. are very clear and unambiguous, which provides that all the appeals would abate on the death of the accused, except an appeal from a sentence of fine. Therefore, P.R.Anjanappa's case referred to supra has no application to the case on hand.

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Thus, only in case the accused is already

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convicted and imposed a sentence of fine and the appeal is arising out of it, in such circumstances on the death of accused, the complainant may insist upon proceeding against his LRs. In case of confirmation of conviction, he could proceed to recover the fine through the assets left by the accused at the hands of his LRs.

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Since the present appeal is by complainant

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against acquittal, he cannot be permitted to continue the appeal by impleading LRs of the accused. In the result, the appeal is liable to be dismissed as abated and accordingly, I proceed to pass the following:

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respondent/accused, the appeal is dismissed as

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abated.

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Sd/JUDGE

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RR/MDS

Narayanaswamy R v. Hanumantharayappa

Case brief

What is this about?

What did the court decide?

Narayanaswamy R v. Hanumantharayappa

Case brief

What is this about?

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