The materials on record show that at the time of filing the appeal and as a condition for suspending the sentence and for all, the appellate court had imposed a condition of depositing one-half of the cheque amount within two months from the date of Ext.P2 order. It is also clear that the appellant/ accused had complied with the above order and he had deposited a sum of Rs. 17,500/-before the court below. Though there was no imposition of fine, the appellant/accused was directed to pay compensation which quantified as Rs.35,000/- which is equivalent to the cheque amount and he was further directed to pay to the complainant a sum of Rs. 1000/- as cost of the proceedings under Section 359 of the Code of Criminal Procedure and in default of the same, he was directed to undergo simple imprisonment for thirty days. Hence, it can be seen that a sum of Rs. 17,500/- has already been deposited by the deceased appellant/accused before the court below and if the appeal decides on merit and if the same is in favour of the person who interested in prosecuting the appeal on behalf of the deceased appellant, he may entitle to get back the amount which is already deposited as per Ext.P2 and there may not be any amount towards compensation and also the cost. Even if the appeal proceeds at the instance of the near relatives and if it is dismissed, the petitioner herein who is the complainant will be entitled to all the amount accrued on the strength of the trial court judgment which was the outcome of the criminal proceedings initiated by him. The same is the position if the appeal is abated finally in view of Section 394 of the Code of Criminal Procedure. Thus, it can be seen that it is open for the successors of the deceased appellant/accused to come on record or get substituted themselves and prosecute the appeal and get the conviction as well as compensation and cost set aside. If they do not come on record, in order to avoid the payment of compensation under the shelter of non-executability of the default sentence, a duty is cast upon the court to direct the successors to be brought on record and hear them accordingly and if the sentence and compensation and cost are affirmed and inspite of such affirmation, the L.Rs of the successors do not pay the compensation, the court has to proceed in accordance with law for the recovery of the compensation amount.
9. In the light of the above procedural aspects and legal consequences, which have to be initiated at the juncture when the death of the appellant/accused reported to the court, it is the duty of the court to proceed further in terms of the mandate contained in Section 394 of the Cr. PC, but the court below had adopted a procedure which is per se contrary to the mandate contained in Section 394 and also overlooking the proviso contained in Section 394(2) of the Cr.P.C. Therefore, the order of the court below legally and factually unsustainable.
Kerala High Court
K. Gopalakrishnan Nair vs The J.F.C.M. on 11 February, 2008
K. Gopalakrishnan Nair vs The J.F.C.M. on 11/2/2008V.K. Mohanan, J.
1. The petitioner herein, who is the Ist respondent before the lower appellate court and the complainant in the trial court, approached this court under Article 227 of the Constitution of India challenging Ext.P3 judgment of the court below and with a prayer to declare that Crl.A. No. 522 of 2000 shall finally abate due to the death of the appellant/ therein. He has also sought for a direction to the Ist respondent to release the amount deposited on the basis of Ext.P2 order. The further prayer in the writ petition is to declare that the petitioner is entitled to realise the compensation and cost of the proceedings as directed in Ext.P1 from the assets of the accused therein through Civil Court except the amount covered in Ext.P2 if so disbursed to the petitioner.
2. In order to appreciate the contentions advanced by the petitioner and the reliefs sought for in the writ petition, a brief facts of the case is absolutely inevitable. The petitioner herein is the complainant in C.C. No. 55/98 on the file of the Judicial First Class Magistrate IV (Mobile), Thiruvananthapuram for the offence punishable under Section 138 of the Negotiable Instruments Act. One M. Masilamani, R.M.S. Sorting Section, R.M.S. Thampanoor, Thiruvananthapuram, was the accused in the above case. The allegation in the above complaint is that towards the discharge of the debt of Rs. 35,000/ - which the accused owed to the complainant, a cheque dated 2-1-98 bearing No. 1079613 drawn on the Kaithamukku Branch of the Kerala State Co-operative Bank, Thiruvananthapuram was issued. The cheque when presented for encashment dishonoured and returned for "insufficiency of funds" in the account of the accused. After complying the statutory formalities, a complaint was filed within time as there was no payment. The complaint was originally filed before the Chief Judicial Magistrate's Court, Thiruvananthapuram wherein it was taken on file as C.C. No. 76/98 and subsequently made over to the trial court. Pursuant to notice issued by the court, the accused appeared before the court and the particulars of the offence were read over to him to which he pleaded not guilty which necessitated further trial of the case during which PW-1 got himself examined and Ex.P1 to P7 documents were marked on the side of fhe complainant. Though there was no documentary evidence from the side of the defence, one defence witness was examined as DW-1.
3. After an elaborate discussion of the materials and evidence on record, the trial court held that the accused has committed the offence punishable under Section 138 of the N.I. Act and accordingly the court found him guilty and convicted him thereunder. Under issue No. 6, an issue the trial court formulated during trial, the accused was sentenced to undergo simple imprisonment for 3 months. Besides the above substantial sentence, the accused was directed to pay to the complainant a sum of Rs. 35,000/-, which is equal to the cheque amount, as compensation under Section 357(3) of Cr.P.C. The accused was also directed to pay to the complainant a sum of Rs. 1000/- as cost of the proceedings under Section 359 of Cr.P.C. and in default of the same, the accused was directed to undergo simple imprisonment for 30 days. A copy of the above judgment is produced along with this writ petition as Ext.P1.
4. Challenging Ext.P1 judgment, the accused had preferred an appeal i.e., Cr1. A. No. 522/2000, before the Ist Addl. Sessions Court, Thiruvananthapuram. Copy of the Judgment in the above appeal dated 17-6-2003 is produced along with this writ petition as Ext.P3. Ext.P2 is the order of the Sessions Court in Crl. M.P. No. 2097/2000 filed in the above appeal for bail by which the Sessions Court suspended the sentence imposed upon the accused by the trial court and bail was granted to the accused/appellant on executing a bond of Rs. 10,000/- with two solvent sureties each for the like amount and on further condition that the petitioner/appellant therein deposits one half of the cheque amount within two months from the date of Ext.P2 order. According to the petitioner, the above order was complied with by the accused and he had deposited a sum of Rs. 17,500/-. Finally, as per Ext.P3 judgment of the 1st Addl. Sessions Court, the appeal was allowed in part, the conviction of the appellant for the offence punishable under Section 138 of the N.I. Act has been upheld but the direction to pay compensation under Section 357(3) and to pay Rs. 1000/- as cost of the proceedings were set aside. It is the above judgment to the extent it setting aside the direction to pay compensation and cost being challenged in this writ petition.
5. I have heard the learned Counsel for the petitioner as well as the learned Public Prosecutor.
6. The learned Counsel took the through various provisions contained in the Criminal Procedure Code and also through the impugned judgment of the court below. According to the counsel for the petitioner, because of the death of the accused, the appeal had been finally abated and therefore the Sessions Court was not legally correct in interfering with the direction of the court below on merit and hence Ext.P3 order is liable to be set aside. I have gone through Ext.P3 judgment. In paragraph 3 of the impugned judgment of the lower appellate court, it is stated: "During the pendency of the appeal, the learned Counsel for the appellant reported that the appellant expired. The S.H.O. of the Vilappil police station was directed to produce the report stating the correctness of the said submission and thus a report was filed by the said police along with a death certificate stating that the appellant has committed suicide on 14-6-2001". Thereafter in paragraph 3 of the impugned judgment, the learned Sessions Judge further stated: "Since the learned Magistrate has directed the appellant to pay a compensation and for the realisation of cost of the proceedings it is necessary to consider the appeal on merit". The above approach of the learned Sessions Judge does not appear to be correct and without jurisdiction as he had overlooked the provisions contained in the Cr.P.C. Section 394 of the Cr.P.C. reads:
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.
Explanation: In this section "near relative" means a parent, spouse, lineal descendant, brother or sister.
A reading of Section 394 disclose that all the appeals filed under Section 377 or Section 378 shall finally abate on the death of the accused. Section 377 is a provision for challenging the sufficiency/inadequacy of the sentence at the instance of the Statement Government and Section 378 is a provision to file appeal in case of acquittal. Sub-section 2 of Section 394 says that every other appeals under this Chapter (except an appeal from a sentence of fine) (emphasis supplied) shall finally abate on the death of the appellant. In the present case it can be seen that as per Ext.Pl judgment, the sentence awarded by the trial court is only simple imprisonment for 3 months and there is no fine. Instead of fine, what the trial court awarded was a compensation of Rs. 35,000/- which is an amount equivalent to the amount covered by the cheque in question, under Section 357(3) Cr.P.C. and to pay Rs. 1000/- as cost of the proceedings under Section 359 of Cr.P.C. So, the facts and circumstances involved in the case would show that the case on hand is covered by Section 394(2) of Cr.P.C. and, if so, the appeal which was pending before the lower appellate court would have been finally abated on the death of the appellant/accused. The factum of death of the appellant/accused was already brought to the notice of the lower appellate court and the same is confirmed as evidenced by the observation and finding in paragraph 3 of Ext.P3 judgment. At that juncture, in view of Section 394(2), the appeal ought to have been abated as the appellant had already expired and as the appeal was not on the question of sentence of fine. But the learned Sessions Judge overlooked this mandatory provision of Cr.P.C. and proceeded to decide the appeal on merit.
7. Further, on a reading of the proviso to Section 394(2) shows that the appeal can be continued with the leave of the court and in such case the appeal will not be abated. It appears that this is a proviso enabling the court to implead the Legal heirs of the deceased appellant either suo motu by the court or at the instance of the interested parties so as to proceed with the appeal and dispose of the same on merit. But the court below even after taking note of the fact that the appellant/accused was no more, as evidence by paragraph 3 of the impugned judgment, again went to the extent says that "since the learned Magistrate has directed the appellant to pay a compensation and for the realization of cost of the proceedings it is necessary to consider the appeal on merits". The above observation and finding is diametrically opposed to the mandate contained in Section 394(2) of Cr.P.C. On a reading of the proviso to Section 394(2), one can understand that the appellate court can proceed with the appeal and decide the case on merit, only after the near relatives of the appellant approach the appellate court within 30 days of death of the appellant with a prayer to continue the appeal and on satisfaction of the prayer by the appellate court, or after impleading the near relatives of the deceased appellant at the instance of other interested parties or suo motu by the court, and in such case the appeal shall not be abated. But in the present case the lower appellate court decided to hear the case on merit and accordingly the same was disposed of on merit in spite of the fact that the appellant/accused had already expired and no near relatives of the appellant brought on record and the appeal was not against the sentence of fine. Therefore, according to me, the judgment of the Sessions Court is without jurisdiction and unsustainable and the same is liable to be set aside and the matter to be remitted to the lower appellate court for disposal of the appeal in accordance with Section 394 of Cr.P.C.
8. It is pertinent to note that the one of the prayers in the above writ petition is to declare that petitioner is entitled to realise the compensation and the cost of the proceedings as directed in Ext.P1 from the assets of the accused therein through civil court except the amount covered in Ext.P2 if so disbursed to the petitioner. The materials on record show that at the time of filing the appeal and as a condition for suspending the sentence and for all, the appellate court had imposed a condition of depositing one-half of the cheque amount within two months from the date of Ext.P2 order. It is also clear that the appellant/ accused had complied with the above order and he had deposited a sum of Rs. 17,500/-before the court below. Though there was no imposition of fine, the appellant/accused was directed to pay compensation which quantified as Rs.35,000/- which is equivalent to the cheque amount and he was further directed to pay to the complainant a sum of Rs. 1000/- as cost of the proceedings under Section 359 of the Code of Criminal Procedure and in default of the same, he was directed to undergo simple imprisonment for thirty days. Hence, it can be seen that a sum of Rs. 17,500/- has already been deposited by the deceased appellant/accused before the court below and if the appeal decides on merit and if the same is in favour of the person who interested in prosecuting the appeal on behalf of the deceased appellant, he may entitle to get back the amount which is already deposited as per Ext.P2 and there may not be any amount towards compensation and also the cost. Even if the appeal proceeds at the instance of the near relatives and if it is dismissed, the petitioner herein who is the complainant will be entitled to all the amount accrued on the strength of the trial court judgment which was the outcome of the criminal proceedings initiated by him. The same is the position if the appeal is abated finally in view of Section 394 of the Code of Criminal Procedure. Thus, it can be seen that it is open for the successors of the deceased appellant/accused to come on record or get substituted themselves and prosecute the appeal and get the conviction as well as compensation and cost set aside. If they do not come on record, in order to avoid the payment of compensation under the shelter of non-executability of the default sentence, a duty is cast upon the court to direct the successors to be brought on record and hear them accordingly and if the sentence and compensation and cost are affirmed and inspite of such affirmation, the L.Rs of the successors do not pay the compensation, the court has to proceed in accordance with law for the recovery of the compensation amount.
9. In the light of the above procedural aspects and legal consequences, which have to be initiated at the juncture when the death of the appellant/accused reported to the court, it is the duty of the court to proceed further in terms of the mandate contained in Section 394 of the Cr. PC, but the court below had adopted a procedure which is per se contrary to the mandate contained in Section 394 and also overlooking the proviso contained in Section 394(2) of the Cr.P.C. Therefore, the order of the court below legally and factually unsustainable.
10. In the result, Ext.P3 judgment of the lower appellate court to the extent it set aside the direction to pay compensation under Section 357(3) and to pay Rs. 1000/- as cost of the proceedings under Section 359 are set aside and the matter is remitted to the lower appellate court for its reconsideration in the light of the above discussion and observation and also in the light of the provisions contained in Section 394 of Cr.P.C.
This Writ Petition is disposed of with the above direction.
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