Allowed

Mrs Nagaveni W/O Sanjeev Naik v. Sooraj Finanace Limited

Karnataka HC8 Aug 2023CRL.P/100318/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal petition under Section 482 CrPC seeking to quash proceedings under Section 138 of the Negotiable Instruments Act. The court held that criminal proceedings abate on the death of the accused.

What did the court decide?

The entire proceedings in C.C. No. 915/2020 insofar as the petitioner-accused is concerned are quashed.

Mrs Nagaveni W/O Sanjeev Naik Vs Sooraj Finanace Limited — Cheque Dishonour | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 8^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 100318 OF 2023 (482)

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BETWEEN:

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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.

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… PETITIONER

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(BY SRI. SURESH S BHAT, ADVOCATE)

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AND:

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VISHAL NINGAPPA PATTIHAL

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Digitally signed by VISHAL NINGAPPA PATTIHAL Date: 2023.08.11 11:21:34 +0530

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SOORAJ FINANACE LIMITED, R/BY ITS MANAGER, ARAVIND B. MAHALE, PRORIETOR, A/ABOUT MAJOR, R/AT MAHALE COMPLEX, UTTARA KANNADA DIST.-581334.

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… RESPONDENT

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(RESPONDNET SERVED)

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THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF CR.P.C. SEEKING TO QUASH THE ENTIRE PROCEEDING IN C.C.NO. 915/2020 (ARISING OUT OF P.C.NO. 308/2020) PENDING ON THE FILE OF PRL. CIVIL JUDGE AND J.M.F.C. HONAVAR, FOR AN OFFENCES PUNISHABLE U/EC. 138 OF N.I.ACT.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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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.

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The facts in brief, germane, are as follows:

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The husband of the petitioner by name Sanjeev Naik

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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

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offence under Section 138 of the Negotiable Instruments Act need not detain this Court for long or delve deep into the matter.

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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:

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“3. BRIEF FACTS OF THE CASE:

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(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.

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(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

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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.

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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:

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(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:

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"394. Abatement of appeals.

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(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

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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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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:

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"431. Every appeal under Section 411-A, subsection (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."

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(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,

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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.

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(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:

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"...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...'.

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(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:

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"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."

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Similarly, the Supreme Court of Queensland in R vs. CHARDO5 at paragraph 13 observed as under:

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"13. The provisions concerning appeals against sentence seem consistent with the same conclusion. Upon the death of an appellant who was sentenced

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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.

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(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

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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 ununderstandable as to how the petitioner can find fault with the regime of law concerned.

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(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.

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(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.

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