Case Note & Summary
The case involves an application filed by Hasmukhbhai Kanjibhai Raja, the brother of the original appellant Umesh Kanjibhai Raja, seeking leave to be substituted in place of the deceased appellant to continue an appeal under Section 138 of the Negotiable Instruments Act, 1881. The original complaint was filed by the applicant as power of attorney holder of the complainant. The Trial Court acquitted the respondent-accused, and an application for leave to appeal was filed in the High Court. During the pendency of that application, the appellant died on 14/11/2004. The applicant, who was conversant with the facts and had been the power of attorney holder during the complainant's lifetime, filed the present application for substitution. The court, relying on various judgments of the High Court and the Supreme Court, allowed the application, permitting the applicant to be substituted and continue with the appeal.
Headnote
A) Criminal Procedure - Substitution of Legal Heir - Section 138 Negotiable Instruments Act, 1881 - The applicant, brother and power of attorney holder of the deceased appellant, sought substitution to continue the appeal against acquittal under Section 138 NI Act. The court allowed the application, holding that the applicant, being conversant with the facts and having acted as power of attorney holder, was entitled to be substituted to pursue the appeal. (Para 1-2)
Issue of Consideration
Whether the brother of the deceased appellant, who was also the power of attorney holder, can be substituted to continue the appeal under Section 138 of the Negotiable Instruments Act, 1881.
Final Decision
The application is allowed. The applicant is permitted to be substituted in place of the deceased appellant and to continue with the appeal.
Law Points
- Substitution of legal heir
- Power of attorney holder
- Section 138 Negotiable Instruments Act
- 1881
- Criminal appeal abatement
- Leave to appeal
Case Details
2005 LawText (BOM) (01) 68
Criminal Application No.5252 of 2004 in Criminal Application No.2748 of 2004 in Criminal Appeal No. of 2004
Prem Sood, Prerana Janvekar, A.S.H. Khan, M.S. Ahmed, D.P. Adsule
Nitin Rasiklal Parikh and Anr.
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Nature of Litigation
Application for substitution of legal heir in a criminal appeal under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The applicant sought leave to be substituted in place of the deceased appellant to continue the appeal.
Filing Reason
The original appellant died during the pendency of the application for leave to appeal against acquittal.
Previous Decisions
The Trial Court acquitted the respondent-accused.
Issues
Whether the applicant, being the brother and power of attorney holder of the deceased appellant, can be substituted to continue the appeal under Section 138 of the Negotiable Instruments Act, 1881.
Submissions/Arguments
The applicant submitted that he was conversant with the facts and was the power of attorney holder of the complainant during his lifetime. He relied on various judgments of this Court and the Apex Court.
Ratio Decidendi
The court allowed substitution of the applicant, who was the brother and power of attorney holder of the deceased appellant, as he was conversant with the facts and had acted as power of attorney holder during the complainant's lifetime.
Judgment Excerpts
This is an application filed by the brother of the appellant for seeking leave of this Court to pursue the appeal on the death of original complainant i.e the appellant herein.
It is submitted that the applicant was conversant with the facts of the present case and he was the power of attorney of the complainant during his life time.
Procedural History
The original complaint under Section 138 NI Act was filed by the applicant as power of attorney holder. The Trial Court acquitted the accused. An application for leave to appeal was filed in the High Court. During its pendency, the appellant died on 14/11/2004. The present application for substitution was then filed.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
