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2014 DIGILAW 89 (CAL)

Ramesh Gupta v. Subhas Das

2014-02-07

INDRAJIT CHATTERJEE

body2014
Judgment : Indrajit Chatterjee, J. This is an application under Section 401 read with Section 482 of the Criminal Procedure Code in which the present petitioners who are admittedly the legal heirs of Late Gopal Gupta have challenged the order dated 21.01.2013 as passed by the Learned Additional Sessions Judge, 3rd Court, Hooghly in connection with Criminal Motion No.160 of 2012 affirming the order dated 12.03.2012 of the Chief Judicial Magistrate, Hooghly passed in MP Case No.16 of 2011 which arose out of CR Case No.99 of 2003 under Section 138 of the N.I. Act. The matter was extensively heard on 29.01.2014 and the order was kept reserved and it is being delivered today. The fact in brief can be stated in thus: that Gopal Gupta was the accused in CR. Case No.99 of 2003 under Section 138 of the N.I. Act as the cheques issued by him to the tune of Rs.4,20,000 (four lakh twenty thousand) bounced on their presentation by the complainant of that case, Subhas Chandra Das to his banker. After observing all formalities the complainant Subhas Chandra Das initiated the proceedings under Section 138 of the N.I. Act and the case ended in conviction and the accused Gopal Gupta was “sentenced to pay a fine of Rs.4,50,000 (four lakh fifty thousand) in default to suffer S.I for six months. It was further ordered that if the fine amount was realized then a sum of Rs.4,00,000 (four lakh) to be paid to the complainant for suffering loss of injury caused by the offence”. Appeal was preferred against that judgment which was registered as Criminal Appeal No.34 of 2009 but unfortunately for the present OP, now aged about 83 years, that Gopal Gupta died and the Learned Sessions Judge, 3rd Court, Hooghly at Chinsurah disposed of the appeal on being abated as the legal heirs i.e. the present petitioners before this Court did not prefer any application to substitute themselves as the appellants in place of the deceased Gopal Gupta. The present OP No.1 also did not pray for any order from the First Appellate Court that the appeal should have been continued against the legal heirs of Gopal Gupta. The Court also did not exercise its discretion to direct the legal heirs of the Gopal Gupta to be on record in that appeal as the appeal was against a sentence of fine only. The Court also did not exercise its discretion to direct the legal heirs of the Gopal Gupta to be on record in that appeal as the appeal was against a sentence of fine only. That appeal was thus disposed of by that Court and forwarded the LCR to the Court of the Learned C.J.M, Hooghly. Thereafter, this OP No.1 before this Court filed one application before the Chief Judicial Magistrate, Hooghly against these two petitioners under Section 421 of the Cr.P.C and also under Section 302 of the Cr.P.C so that those legal representatives may be directed to pay the amount of fine as directed by the Trial Court. The matter was heard and disposed of by the Learned C.J.M, Hooghly who held that the estate of the deceased devolved on these two petitioners and as such they are liable to discharge the liabilities of their predecessors in interest and as such ordered that the present OP No.1 was entitled to proceed against the legal heirs of the deceased/convict for execution of order and judgment passed by that Court on 21.08.2009 as passed in CR Case No.99 of 2003. The matter was moved before the Sessions Judge and it was heard by the Additional Sessions Judge, 3rd Court, Hooghly in Criminal Motion No.160 of 2012 and that Court upheld the order of the Learned C.J.M and as such this application has been preferred. It was submitted by the learned Advocate appearing on behalf of the petitioners that neither Section 302 nor Section 421 of the Cr.P.C. will apply in this case. He took me to those sections to say that Section 302 of the Cr.P.C. deals with a permission to permit the prosecution by the Public Prosecutor or Assistant Public Prosecutor etc., as may be granted by the Magistrate. He further submitted that Section 421 relates an offender and in no stretch of imagination these petitioners can be termed as offenders. Thus, he submitted that the order of the Learned C.J.M. was perversed and without any sanction of law. In counter to all these Learned Lawyer appearing on behalf of the O.P. No. 1 took me to Section 394(1 & 2) of the Cr.P.C. which runs thus: “394. Abatement of appeals. – 1) Every appeal under Section 377 or Section 378 shall finally abate on the death of the accused. In counter to all these Learned Lawyer appearing on behalf of the O.P. No. 1 took me to Section 394(1 & 2) of the Cr.P.C. which runs thus: “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………….” Thus, he submitted that the appeal against conviction would not have been abated for the death of Gopal Gupta as the sentence was that of fine only. He referred to the judgment of the Apex Court as reported in AIR (2006) 5 SCC 683 (State of A.P. Vs. S. Narasimha Kumar and Others) wherein the Apex Court categorically held that “An appeal from a sentence of fine is excepted from the all-pervasive rule of abatement of Criminal appeals for the reason that the fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to word off that liability”. The Hon’ble Apex Court in that decision also considered the case even that of on appeal from a composite order of sentence combining the substantive imprisonment with fine. It was observed by the Court that “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……….” On a close look of Section 394 of the Cr.P.C just referred to above this Court is satisfied that there cannot be abetment of one criminal appeal in which the appeal is from a sentence of fine and as such the order passed by the Learned Additional Sessions Judge, 3rd Court, Hooghly in Criminal Appeal No.34 of 2009 passing an order of abetment in that appeal was ipso facto, bad in law. The decision of the Hon’ble Apex Court referred to above will certainly apply in this case. The decision of the Hon’ble Apex Court referred to above will certainly apply in this case. The legal heirs who may be entitled to word off their liability will similarly be directed to meet up the liability of the estate of their predecessor in interest, if the estate was complied with such liability. This Court having inherent power under Section 482 of the Cr.P.C cannot be a silent spectator to such a gross irregularity committed by that Court and interest of justice demands that the said appeal must be revived and this Court orders so. Thus, this revisional application is disposed of with this observation that the order passed by the Additional Sessions Judge, 3rd Court in Criminal Appeal No.34 of 2009 was a non est in view of Section 394 of the Cr.P.C particularly when the appeal was against a sentence of fine only. It is no factor that a portion of that fine was ordered to be paid almost like compensation. The total amount which was imposed as fine was the subject matter of that appeal. Hence, through this order as passed under Section 482 of the Cr.P.C this Court hereby set aside the order of abetment as passed by that Court. Let the appeal be revived instantly. These petitioners are hereby given the leave to appear before that Court within one month from this day. Learned Additional Sessions Judge will hear the appeal treating these petitioners as the substituted appellants being the legal representatives of the deceased offenders. Let the proceeding being MP No. 16 of 2011 now pending before the Learned C.J.M, Hooghly be dropped in such a new circumstance. In the changed circumstance the order passed by the Learned Additional Sessions Judge, 3rd Court, Hooghly in Criminal Motion No.160 of 2012 is also to be set aside as this Court has directed that the M.P. No.16 of 2011 be dropped. Liberty is given to the present OP No.1 to file separate application under Section 421 of the Cr.P.C at a later stage after the disposal of the appeal, if the circumstances so requires. I have come to know that already this OP No.1 is aged more than 80 years and as such the Additional Sessions Judge, 3rd Court, Hooghly is directed to hear the Criminal Appeal No.34 of 2009 within one month from the appearance of the parties before that Court. I have come to know that already this OP No.1 is aged more than 80 years and as such the Additional Sessions Judge, 3rd Court, Hooghly is directed to hear the Criminal Appeal No.34 of 2009 within one month from the appearance of the parties before that Court. This Court notices with displeasure that a simple case of Section 138 of the N.I. Act was kept pending before the Trial Court for more than 6 years and the Appeal Court also took more than a year to dispose of such a simple appeal. The Learned C.J.M, Hooghly is directed to re-submit the LCR of CR Case No.99 of 2003 now before him forthwith before the Court of 3rd Additional Sessions Judge, Hooghly. Let the free copy of this order be given to the petitioners as well as to the OP No.1. Criminal Section is directed to send copies of this order immediately both to the Learned Additional Sessions Judge, 3rd Court, Hooghly at Chinsurah and also to the Chief Judicial Magistrate, Hooghly at Chinsurah.