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2014 DIGILAW 347 (HP)

Suresh Kumar v. Dignity Motor

2014-04-04

MANSOOR AHMAD MIR

body2014
JUDGMENT : Mansoor Ahmad Mir, J. Petitioners have sought quashment of order, dated 15th January, 2009, passed by the Additional Sessions Judge, Fast Track Court, Hamirpur, H.P. (hereinafter referred to as "the Appellate Court"), in Criminal Appeal No. 14 of 2001/RBT.12 of 2004, titled as Bali Ram versus Dignity Motor Finance Ltd. & another (hereinafter referred to as "the impugned order"), on the grounds taken in the memo of petition. 2. It appears that a complaint, titled as M/s. Dignity Motors Finance Ltd. versus Shri Bali Ram, under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") was filed before the Additional Chief Judicial Magistrate, Barsar, District Hamirpur, H.P. (hereinafter referred to as "the trial Court"), came to be granted and the trial Court, vide order, dated 22nd March, 2001, convicted accused-Bali Ram and appears to have passed another order on the quantum on the same day, which were questioned before the Appellate Court. 3. During the pendency of the appeal before the Appellate Court, the accused/convict died and the Appellate Court passed an order in terms of Section 394 of the Code of Criminal Procedure (hereinafter referred to as "the CrPC"). In one breath, the Appellate Court has recorded the order of abatement and in the second breath, has issued notices for recovery of the fine from the property of the deceased, i.e. from legal heirs of the deceased. 4. Feeling aggrieved, the legal heirs/representatives of the deceased have invoked the inherent jurisdiction of this Court in terms of Section 482 of the CrPC. 5. Heard. 6. It is apt to reproduce Section 394 of the CrPC herein: "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 appellate 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." 7. Explanation. - In this section, "near relative" means a parent, spouse, lineal descendant, brother or sister." 7. While going through the said provision of law, one comes to an inescapable conclusion that when an appeal is directed against the order of sentence of imprisonment and fine, the appeal abates on the death of the accused only so far it relates to substantive sentence of imprisonment, but does not abate so far it relates to fine because as per the provisions contained in the CrPC, the amount of fine is recoverable from the estate of the deceased, i.e. from the legal representatives of the deceased. Thus, before passing the impugned order, the legal representatives were required to be heard. 8. The Apex Court in a case titled as Harnam Singh Vs. The State of Himachal Pradesh, (1975) 3 SCC 343 , held as under: "10. The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of Section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical clause of Section 431 does not contain the word "only". To limit the operation of the exception contained in that clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the clause the word "only" which is not there and which, by no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused "except an appeal from a sentence of fine". The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. The plain meaning of Section 431 is that every criminal appeal abates on the death of the accused "except an appeal from a sentence of fine". The section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the accused and the appeal filed by him should involve the consideration of the validity of that sentence. 11. It is difficult to discern any principle behind the contrary view. The reason of the rule contained in the exception is that a sentence of fine operates directly against the estate of the deceased and therefore the legal representatives are entitled to clear the estate from that liability. Whether or not the sentence of fine is combined with any other sentence can make no difference to the application of that principle." 9. It is profitable to reproduce the principles, as can be discerned from the judgment made by a three-Judge Bench of the Apex Court, in the case titled as Bondada Gajapathy Rao Vs. State of Andhra Pradesh, AIR 1964 SC 1645 , whereby three separate judgments were rendered by the Hon'ble Judges and after discussing Section 431 of the Old Code, it was held that the appeal has to be continued by the legal representatives of the deceased-accused: "1. S. 431 Criminal P.C. does not apply proprio vigore to a case of appeal filed with the special leave of the Supreme Court granted under Art. 136, when the appellant-accused dies pending the appeal. 2. But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of the deceased appellant accused. There is no provision making such appeals abate. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. 2. But where the appeal is against sentence of fine, the appeal may be permitted to be continued by the legal representatives of the deceased appellant accused. There is no provision making such appeals abate. If they can be continued when arising under the Code, there is no reason why they should not be continued when arising under the Constitution. If revision petitions may be allowed to be continued after the death of the accused so should appeals, for between them no distinction in principle is possible for the purpose of continuance. 3. The principle on which the hearing of a proceeding may be continued after the death of an accused would appear to be the effect of the sentence on his property in the hands of his legal representatives. If the sentence affects that property, the legal representatives can be said to be interested, in the proceeding and allowed to continue it. 4. But where the sentence is no one of the fine but of imprisonment, which on the death of the accused becomes infructuous, the sentence does not affect the property of the deceased-accused in the hands of his legal representatives, and therefore, the appeal, in such a case, would abate, upon the death of the accused. 5. The fact that the accused was a government servant and was under suspension during the trail and the fact that if the conviction and sentence were set aside, his estate would be entitled to receive full pay for the period of suspension, cannot be said to affect his estate, because the setting aside of the sentence would not automatically entitle the legal representatives to the salary. It would be extending the principle applied to the case of a sentence of fine, if on the basis of it appeal against imprisonment is allowed to be continued by the legal representatives after the death of the appellant and for such an extension there is no warrant." 10. The Apex Court in other cases, titled as State of A.P. Vs. S. Narasimha Kumar and Others, (2006) 5 SCC 683 ; Shri Shankar Prasad Ghosh (Dead) Vs. The State of Bihar and Another, (2008) 11 SCC 373 , and Hari Prasad Chhapolia Vs. The Apex Court in other cases, titled as State of A.P. Vs. S. Narasimha Kumar and Others, (2006) 5 SCC 683 ; Shri Shankar Prasad Ghosh (Dead) Vs. The State of Bihar and Another, (2008) 11 SCC 373 , and Hari Prasad Chhapolia Vs. Union of India (UOI), (2008) 7 SCC 690 , held that the appeal, so far it relates to fine, cannot abate and has to continue on the request of the legal representatives. 11. In the last two judgments (supra), the Apex Court has discussed the law right from the year 1959 to 2008 and held that if a public servant dies during the pendency of the conviction appeal, his legal heirs/representatives are within their rights to lay an application for bringing them on record as legal representatives and contest the appeal and in case they succeed, they can reap the fruits of the service benefits of the deceased, i.e. they would be entitled to salary, arrears, pension, gratuity and other service benefits. Keeping that concept in view, the Apex Court has held that the legal representatives are within their rights to lay a motion for bringing them on record and to hear them. 12. No doubt, the case here is different. The deceased was not a public servant, but he was sentenced with substantive imprisonment and fine is to be recovered from the estate of the deceased, which adversely affects the legal representatives, are to be heard. 13. Thus, the order passed by the Appellate Court merits to be set aside and the petitioners-legal representatives of the deceased are brought on record for limited purpose as indicated above. Accordingly, the impugned order is set aside and the Appellate Court is directed to hear the petitioners-legal representatives of the deceased and the State and pass appropriate orders as per the law applicable. 14. Parties through their counsel are directed to cause appearance before the Appellate Court on 1st May, 2014. 15. Registry to forthwith send down the record along with a copy of the order.