1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPEAL NO. 248/2001 (State of Maharashtra .vs. Motiram Tukaram Mane) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - --------- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - ------------ - - - - - - - - -------------------------------------------------------------- - -- CORAM : S.R.DONGAONKAR, J. DATE : 23 rd JUNE, 2009 Heard Shri Thakre, learned A.P.P. for the appellant and Shri M.R. Daga, the learned Counsel for the respondent, against whom the appeal has been filed. The original respondent was prosecuted for the offence punishable under Section 5[1][d] read with Section 5[2] of the Prevention of Corruption Act. He was acquitted in Special Case No.5/1988 by the judgment dated 19.05.2001 delivered by the Special Judge, Chandrapur. To challenge that judgment of acquittal, the instant appeal was preferred by the appellant / State. The respondent is reported to be dead on 31.12.2008, therefore, the appeal abates. However, in the proceeding; the legal heir of the respondent i.e. applicant – Prakash Motiram Mane has filed an application bearing Criminal Application 2 No. 1034/2009 seeking permission under Section 394 of the Code of Criminal Procedure for leave to continue the appeal in place of the original respondent. Proviso to Sub-sections (2) of Section 394, states that where the appeal is against conviction and sentence of death or imprisonment, and the appellant dies during the pendency of the appeal, any of his near relative may, within thirty days of the death of the appellant, apply to the Appellate Court for leave to continue the appeal. In my opinion this provision would be applicable only in the case of appeal against conviction and not in case where the appeal is against acquittal. As the present appeal is against acquittal, once the accused/respondent dies, he can not now be convicted and sentenced by the Court. Therefore, in my opinion the provisions of Section 394 of Code of Criminal Procedure are not attracted in the present case. The learned A.P.P. appearing for the appellant State, could not show any provision which entitles the appellant to continue with the appeal against acquittal when the respondent is dead. In these circumstances, the Criminal Appeal No. 278/2001 stands abated and is disposed of as such. The order passed by the Sessions Judge, Chandrapur as regards the disposal of the property (currency notes) and 3 regarding rest of the property will stand as it is and be complied accordingly. However, if the complainant is not available on notice for return of the said currency notes of Rs. 200/-, that amount be forfeited to State Government. JUDGE Rgd