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Judgment
Mr. B. Kemal Pasha, J. - 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.
This is an appeal filed under Section 378(3) Cr.P.C. with the leave of this Court. Leave has already been 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 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.
No appeal shall lie except where an appeal is provided by the statute. Here, an appeal has been filed under Section 378(3) Cr.P.C., challenging the acquittal with the leave of the court. In such case, the present appeal has to be treated as one coming within the terms "every other appeal under" Chapter XXIX Cr.P.C. In such case, the legal representatives of the deceased appellant have no right to come on record. This appeal has to be treated as finally abated.
In the result, this Criminal Appeal is dismissed as abated.