This Criminal Appeal, filed by a complainant against an acquittal under the Negotiable Instruments Act, was finally heard. The Court held that the appeal abated on the death of the appellant, as the legal representatives had no right to substitute him in a Section 378(3) Cr.P.C. appeal with leave.
The Criminal Appeal was dismissed as abated.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 27TH DAY OF OCTOBER 2016/5TH KARTHIKA, 1938
CRL.A.No. 95 of 2009 ( )
AGAINST THE JUDGMENT IN CC. NO.57/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, CHALAKUDY DATED 06/10/2008.
APPELLANT/COMPLAINANT::
SHAJI NADUMURI, S/O. NADUMURI VELAYUDHAN, KOMBATHUKADAVU DESOM, PUTHENCHIRA VILLAGE, THRISSUR DISTRICT, MUKUNDAPURAM TALUK.
BY ADV. SRI.T.N.MANOJ.
RESPONDENT/ACCUSED::
1. SUKESHAN. B., TC. NO.65/1989, INDIRA SADANAM, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM.
2. STATE OF KERALA.
R1 BY ADVS. SRI.BABU JOSEPH KURUVATHAZHA, SRI.T.K.BIJU. R2 BY SR. PUBLIC PROSECUTOR SRI.ALEX M.THOMBRA.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
rs.
[ CR ]
B. KEMAL PASHA, J.
Crl. Appeal No.95 of 2009
Dated this the 27th day of October, 2016
~ ~ ~ ~ ~ ~ ~ ~ ~
This is an appeal filed by the complainant in a
case alleging an offence under Section 138 of the Negotiable Instruments Act, 1881, by challenging the judgment of acquittal passed by the court below. During the pendency of the appeal, the appellant died.
granted. As per Section 394(2) Cr.P.C., every appeal filed under Chapter XXIX except an appeal from a sentence of fine, shall finally abate on the death of the appellant. The proviso says that where the appeal is against a conviction and sentence of death or of imprisonment, and the appellant
Crl.A.95/2009
: 2 :
dies during the pendency of the appeal, any of his near relatives may, within thirty days of the death of the appellant, can come on record. The said provision is not applicable as far as the present appeal is concerned.
In the result, this Criminal Appeal is dismissed as abated.
Sd/- (B.KEMAL PASHA, JUDGE)
aks/27/10
// True Copy // PA to Judge
2 issues framed by the court
Whether the criminal appeal filed by a complainant against an acquittal under Section 378(3) Cr.P.C. survives the death of the appellant without the substitution of legal representatives.
Whether the provision for near relatives to come on record under Section 394(2) Cr.P.C. applies to appeals against acquittal.
Shaji Nadumuri (Legal Representatives)
Sukeshan. B.
State of Kerala
B. Kemal Pasha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
